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EO/S3/11/R1

1st Report, 2011 (Session 3)

Stage 1 Report on Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill

CONTENTS

Remit and membership

Report

INTRODUCTION

Consultation by the Committee

PURPOSE OF THE BILL

BACKGROUND TO THE BILL

What is forced marriage?
Arranged marriage
Current position in other parts of the UK
Current position in Scotland
Scottish Government consultation on possible legislation

SCALE OF FORCED MARRIAGE

UK data
Scottish data

GENERAL RESPONSE TO THE BILL

MAIN ISSUES CONSIDERED

Part 1
Sections 1-4: Forced Marriage Protection Orders
Section 5-8 Interim orders, duration, variation, recall and extension (of orders)
Section 9: Offence
Section 10: Power to apply Part 1 to civil partnerships
Sections 11-13: Supplementary 3
Part 2
Part 3

COMPATIBILITY WITH OTHER LEGISLATION
FINANCIAL MEMORANDUM
FINAL RECOMMENDATION AND CONCLUSION

Annexe A: EXTRACTS FROM THE MINUTES OF THE EQUAL OPPORTUNITIES COMMITTEE
Annexe B: SUBORDINATE LEGISLATION COMMITTEE REPORT
Annexe C: FINANCE COMMITTEE REPORT

ORAL EVIDENCE AND ASSOCIATED WRITTEN EVIDENCE

The Committee took oral evidence from the witnesses listed below on the dates shown. Some of these witnesses provided written evidence in advance of the meeting in question: some also provided supplementary written evidence afterwards. This evidence can be found in the electronic links below.

21st Meeting, 2010 (Session 3), Tuesday 23 November 2010

WRITTEN EVIDENCE

ACPOS
BEMIS (Black and Ethnic Minorities Infrastructure in Scotland)
Council of British Pakistanis (Scotland)
The Law Society of Scotland
Scottish Women's Aid, Shakti Women's Aid and Hemat Gryffe Women's Aid – Joint Submission>

ORAL EVIDENCE

Louise Johnson, National Worker, Scottish Women's Aid;
Claire Platts, Senior Solicitor, Ethnic Minorities Law Centre;
Iain Livingstone, Assistant Chief Constable, Lothian and Borders Police, ACPOS;
John Fotheringham, Vice-Convener, Family Law Sub-Committee, The Law Society of Scotland;
Tanveer Parnez, Director of National Development, BEMIS;
Huma Awan, Racial Equality Officer, Council of British Pakistanis (Scotland).

24th Meeting, 2010 (Session 3), Tuesday 14 December 2010

WRITTEN EVIDENCE

Amina Muslim Women's Resource Centre
Hemat Gryffe Women's Aid
Scottish Women's Aid, Shakti Women's Aid and Hemat Gryffe Women's Aid – Joint Submission
Shakti Women's Aid

ORAL EVIDENCE

Suzelle Dickson, Joint Head, Forced Marriage Unit, UK Ministry of Justice;
Girijamba Polubothu, Manager, Shakti Women’s Aid;
Smina Akhtar, Director, Amina Muslim Women's Resource Centre;
Elaine McLaughlan, Outreach and Development Worker, Hemat Gryffe Women's Aid;
Laura McCrum, Development Officer, Saheliya;
Alex Neil MSP, Minister for Housing and Communities;
Lesley Irving, Team Leader, Gender Equality and Violence Against Women;
Eileen Flanagan, Policy Manager, Gender Equality and Violence Against Women and;
John St Clair, Solicitor, Scottish Government.

SUPPLEMENTARY EVIDENCE

Saheliya
Letter from the Scottish Government
Letter from the Forced Marriage Unit, UK Government

OTHER WRITTEN EVIDENCE

Equality and Human Rights Commission
Fife Arabic Society
Glasgow Community and Safety Services
Muslim Council of Scotland
Scottish Borders Violence Against Women Partnership
Scottish Children's Reporter Administration
Scottish Council of Jewish Communities
Scottish Independent Advocacy Alliance
The Scottish Legal Aid Board
Scottish Women’s Convention
Soroptimist International Inverness and Nairn
Soroptimist International of Scotland North and Soroptimist International of Scotland South
South Lanarkshire Council
Professor E B Crawford, Professor of International Private Law & Professor J M Carruthers, Professor of Private Law, University of Glasgow

OTHER SUPPLEMENTARY EVIDENCE

Letter from the Lord Advocate

Remit and membership

Remit:

The remit of the Equal Opportunities Committee is to consider and report on matters relating to equal opportunities and upon the observance of equal opportunities within the Parliament.

(Standing Orders of the Scottish Parliament, Rule 6.9)

Membership:

Malcolm Chisholm
Marlyn Glen (Deputy Convener)
Jamie Hepburn
Christina McKelvie
Stuart McMillan
Margaret Mitchell (Convener)
Hugh O'Donnell
Elaine Smith

Committee Clerking Team:

Clerk to the Committee
David McLaren

Assistant Clerk
Rebecca Lamb

Committee Assistant
Ross Fairbairn

Stage 1 Report on Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill

The Committee reports to the Parliament as follows—


Introduction

1. The Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill1 (SP Bill 53) (“the Bill”) was introduced in the Scottish Parliament on 29 September 2010 by Nicola Sturgeon MSP, Deputy First Minister and Cabinet Secretary for Health and Wellbeing. The Bill was accompanied by a Policy Memorandum,2 Explanatory Notes,3 including a Financial Memorandum,4 and a Delegated Powers Memorandum.5

2. On 6 October 2010, under Rule 9.6 in the Parliament’s Standing Orders, the Parliament agreed to designate the Equal Opportunities Committee (“the Committee”) as the lead committee to consider and report on the general principles of the Bill at Stage 1.

Consultation by the Committee

3. The Committee issued a call for written evidence on 30 September 2010 and 22 submissions were received. The Committee held a roundtable evidence session on 23 November with the following witnesses—

  • Louise Johnson, National Worker, Scottish Women's Aid;
  • Claire Platts, Senior Solicitor, Ethnic Minorities Law Centre;
  • Iain Livingstone, Assistant Chief Constable, Lothian and Borders Police, ACPOS;
  • John Fotheringham, Vice-Convener, Family Law Sub-Committee, The Law Society of Scotland;
  • Tanveer Parnez, Director of National Development, BEMIS; and
  • Huma Awan, Racial Equality Officer, Council of British Pakistanis (Scotland).

4. It also held an oral evidence session on 14 December with three panels of witnesses which included—

  • Suzelle Dickson, Joint Head, Forced Marriage Unit, UK Ministry of Justice;
  • Girijamba Polubothu, Manager, Shakti Women’s Aid;
  • Smina Aktar, Director, AMINA Muslim Women’s Resource Centre;
  • Rajani Pandher, Chief Support Worker, Hemat Gryffe Women's Aid;
  • Laura McCrum, Development Officer, Saheliya;
  • Alex Neil MSP, Minister for Housing and Communities;
  • Lesley Irving, Team Leader, Gender Equality and Violence Against Women;
  • Eileen Flanagan, Policy Manager, Gender Equality and Violence Against Women; and
  • John St. Clair, Solicitor, Scottish Government Legal Directorate.

5. The Committee would like to express its thanks to those who submitted written evidence, and to those who took part in the oral evidence sessions on the Bill.

PURPOSE OF THE BILL

6. The Policy Memorandum states that the Bill is to make “provision for protecting people against being forced to enter into marriage without their free and full consent and for protecting those who have been forced to enter into marriage without such consent”. The Policy Memorandum also states that the Scottish Government wants to amend the jurisdiction of the sheriff court in relation to actions for declarator of nullity of marriage.6

7. There are three parts to the Bill—

  • Part 1 makes provision for forced marriage protection orders (FMPO) to protect people from being forced to enter into marriage without their free and full consent and for protecting those who have been forced to enter into marriage without such consent.
  • Part 2 clarifies the circumstances in which individuals including victims of a forced marriage, can seek declaration from the sheriff court that a purported marriage is void;
  • Part 3 sets out provisions in relation to ancillary orders, subordinate legislation, crown application and the short title and commencement of the Bill.

BACKGROUND to the bill

What is forced marriage?

8. The Scottish Government uses the definition of forced marriage used by the UK Government’s Forced Marriage Unit (FMU)7 which states—

“A forced marriage is a marriage in which one or both spouses do not (or, in the case of some adults with learning or physical disabilities cannot) consent to the marriage and duress is involved.”8

9. The Committee has discussed this definition and questions the inclusion of the words “and duress is involved”. Duress is often involved but that is not always necessarily the case. If there was no consent given, because for example, one party did not understand and so could not give consent, then it could still be a forced marriage. The Committee asks the Scottish Government to reconsider its use of this definition.

10. In general, forced marriage includes situations where one or both parties are coerced into a marriage against their will and under duress. “Duress” includes both physical and emotional pressure, which can range from emotional pressure exerted by family members to more extreme cases involving assault, being held unlawfully captive, rape, and in some cases threat of murder.9

11. Forced marriage is recognised as a specific manifestation of domestic abuse that can affect both men and women although in most cases it is young women and girls who are likely to be forced into marriage.10 Louise Johnston of Scottish Women’s Aid told the Committee—

“We recognise—and it is recognised internationally—that forced marriage is very much part of the continuum of behaviours that make up violence against women.”11

12. The Committee learned that victims of forced marriage often presented at domestic abuse organisations, rape crisis centres or mental health support services not understanding what had happened to them or recognising that they were victims of forced marriage. Claire Platts of the Ethnic Minorities Law Centre explained that cases of forced marriage often came to the Law Centre as domestic violence problems in the first instance with forced marriage “becoming prevalent when we peel things back.”12

13. Suzelle Dickson of the FMU, explained that the cases of forced marriage the FMU dealt with fell into three areas—

  • consular assistance: a British national who has been taken overseas and either forced into marriage or has been placed at risk of being forced into marriage and is seeking assistance to return to the UK.
  • domestic assistance: people who are at risk of being forced into marriage in the UK.
  • reluctant sponsor: people who have been forced to marry someone overseas and, on their return to the UK, are being forced by their families to sponsor their spouse’s visa to allow them to come to the UK.13

14. The Committee invited witnesses to provide it with examples of forced marriage in Scotland in order to help it fully understand the nature of this activity, and to help provide justification for taking legislative measures to address it.

15. Rajani Pandher of Hemat Gryffe told the Committee about a case of a woman now aged 21 who had been taken to Pakistan at the age of 16 and forced into marrying her cousin. The victim and her cousin were now in the UK and her parents were forcing her to apply for his indefinite leave to remain so that the husband could stay permanently in the UK. Rajani Pandher explained the affect this was having on the victim—

“She said that, initially, he did not stay with her and the marriage was not consummated. However, pressure was put on her and her parents forced them to live together, and he has sexually abused her, too. She has fled her home and is staying with a friend's mother, who is from the same community and who is supporting her. She is looking into the help that she can receive. She says that she is distraught. Her extended family is still pressurising her to get a visa for her husband and to continue the marriage but she says that she was forced into it—there is no question about that.”14

16. Shakti Women’s Aid15 and Scottish Women’s Aid16 told the Committee that they were aware of cases where women had been forced into marriage to act as carers for physically or mentally disabled spouses. Laura McCrum of Saheliya17 provided the details of a particularly disturbing case—

“The client whom we supported was the young woman in the situation, which also involved a British national who was a young disabled man with severe learning difficulties. His family decided that he was to be married, to produce an heir for them, so a young woman was brought over to marry him. I say ‘young woman’, but ‘girl’ would be a better choice of word, because she was 15.

The girl had been told nothing of his learning difficulties or his disability. Furthermore, she had little understanding of even the mechanics of sex, let alone of marriage or what any of that meant. Added to that were the possible implications of language barriers.

The people involved were from the Sikh community. By the time that we worked with the girl, her mental health was in such a state that she needed continuing support for many years.

It was heartbreaking and traumatic to hear the young man's side of the story. His family wanted an heir, so they forced the man and woman to have sex to try to produce an heir. For him, that was incredibly frustrating and distressing, because he did not understand the situation.

The bigger issues that we dealt with for our client were isolation and the fact that she was basically kept as a slave to cook, clean and be the man's full-time carer, as well as partner and wife. She was allowed no access to other people or to language support. Such support was available, but it was denied her. That case stays with me.”18

17. Huma Awan of the Council of British Pakistanis (Scotland) told the Committee that sexuality can also be a factor in a forced marriage. She said that a family may witness behaviour that it deems to be inappropriate, for example a family member having a boyfriend or a girlfriend or having a same sex relationship—

“The whole family can get involved, and certain characters have a major role to play to try and stop the behaviour. Homosexuality is a major factor. In England, where there is a larger number of communities, it has been a significant factor.”19

18. John Fotheringham of the Scottish Law Society added—

“To save its honour, a family might try to force a young man to marry if they fear that he might be homosexual.”20

Arranged marriage

19. It was made clear to the Committee during its scrutiny of the Bill that it is important to ensure that there is an understanding of the clear distinction between a forced marriage and an arranged marriage.

20. A forced marriage is carried out in the absence of valid consent by one or both parties. In contrast, an arranged marriage is entered into freely by both parties. Their families may take a role in the choice of partner, but the final decision as to whether or not to accept the arrangement lies with the potential spouses. The tradition of arranged marriage has operated successfully within many communities for generations.21

21. Tanveer Parnez of BEMIS emphasised the importance of making this distinction as “people can confuse forced and arranged marriage,”22 and Suzelle Dickson of the FMU told the Committee that there had been difficulties in the past for some practitioners in trying to understand the differences between an arranged and a forced marriage. She summed up the distinction—

“Arranged marriages have happened for many years, and the Government is not trying to interfere in that practice. The problem is when people are threatened, abused and forced into marriage by being denied a choice. The Government wants to stop that practice.”23

22. Suzelle Dickson explained how distinguishing between an arranged and a forced marriage operated in practice though the use of a victim centred approach—

“We always ask the victim how they felt and whether they were pressured into the marriage. If they say that they were—even if they say that their parents arranged it at the beginning and they were happy to go along with the process—we would take the victim's word on that, if they felt that there had been any pressure in the arrangement and were not happy to go through with it. We would say that the marriage was forced.”24

Current position in other parts of the UK

23. In 2005, the UK Government and the Scottish Government issued a joint consultation Forced Marriage: A Wrong not a Right.25 The consultation sought views on whether legislation to create a specific criminal offence would help to combat forced marriage. An analysis of consultation responses found that the majority of the respondents felt that the disadvantages of creating new legislation outweighed the advantages, with concern being raised that making forced marriage a criminal offence would deter victims from coming forward to seek help. As a result of this, both Scottish and UK Ministers decided not to legislate to criminalise forced marriage.26

24. In March 2007, the UK Government decided to support a Private Members Bill on forced marriage brought forward by Lord Hester of Herne Hill. The Forced Marriage (Civil Protection) Act 2007 (the “UK Act”) received Royal Assent on 26 July 2007 and came into force on 25 November 2008.

25. The UK Act provides civil remedies for those at risk of forced marriage, as well as those who have already been forced into a marriage. Under the legislation, a person who has been forced into marriage or is at risk of being forced into a marriage may apply to a court for a Forced Marriage Protection Order (FMPO). Through such an order, the courts in England, Wales and Northern Ireland can require those responsible for forcing another person into marriage to stop or change their behaviour. An order can prohibit a person from doing something and may also positively require a person to do something. This differs from the current Scottish common law interdicts which can only be issued to prohibit specific actions.

26. A review27 of the UK Act was undertaken by the Ministry of Justice in 2009, a year after the legislation came into force. Suzelle Dickson of the FMU told the Committee that the review—

“Examined general awareness in the court areas and whether people were finding the process simple or whether difficulties were arising. Where orders had been taken out, the process was becoming simpler and more straightforward; people had been trained in how to deal with cases, and court staff, the judges and so on were encouraged by how easily the act could be applied.

The level of local authority involvement was not what we had expected, but the report's findings and recommendations for next steps included more monitoring of the numbers and the demographics of the people on whom the orders were being taken out and considering how to improve interagency working and take forward work in the different courts. For example, it was suggested that there might be some form of network to share experiences and information.

With the Ministry of Justice, we are looking at what more can be done to raise awareness in some communities, given that in certain areas orders were not taken out because of the fear of repercussions. However, we also need to raise professional organisations' awareness of their roles and responsibilities with regard to people who are at risk of being forced into marriage, and I hope to carry out more work with those organisations in the spring.

The Ministry also looked at other things that it could do. We have, for example, updated and revised the guidance to the judicial studies board to give judges a bit more information about their role in the process. The Ministry is also considering whether to conduct more in-depth research on the 2007 Act later on but, of course, resources will have an impact on that decision.”28

27. The UK Act applies in England and Wales and separate provisions have extended to Northern Ireland on forced marriage. The Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill would introduce broadly similar provisions to the UK Act in Scotland.

Current position in Scotland

28. At present, there is no law in Scotland expressly prohibiting forced marriage and it is not a specific criminal offence. However, there is currently a range of civil remedies and criminal offences which may be relevant in relation to forced marriage.

29. The Bill does not propose to change any of the existing civil remedies which are:

  • a common law interdict to which a power of arrest may be attached under the Protection from Abuse (Scotland) Act 2001;
  • an interdict or non-harassment order under the Protection from Harassment Act 1997; and
  • an interdict under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 that is ancillary to an exclusion order and to which a power of arrest may be attached under the 2001 Act (available within marriage, against the spouse only). 29

30. There are also a number of different criminal offences in relation to forced marriage in Scotland which, depending on the circumstances, perpetrators could be prosecuted for. These can include:

  • abduction;
  • assault;
  • rape and other sexual offences; and
  • child protection offences.

31. More information can be found on civil remedies and the law of marriage in the Scottish Parliament Information Centre (2010) Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill Briefing.30

Scottish Government consultation on possible legislation

32. In light of the introduction of legislation in England, Wales and Northern Ireland, and in order to consider whether similar legislation should be introduced in Scotland, the Scottish Government published a consultation Forced Marriage: A Civil Remedy?31 which ran from November 2008 until March 2009.

33. A large majority of respondents to the Scottish Government’s consultation considered that there were difficulties in accessing and using existing civil remedies in forced marriage cases including the costs involved for victims and access to legal aid, as well as a lack of awareness and understanding of civil remedies amongst members of the public, victims and legal professionals.32

34. There was also a view held in responses that the current legal structure, nature of the remedies and procedural requirements of the process were not flexible enough to deal with the particular circumstance of forced marriage. A large majority of respondents stated that they did not consider existing civil remedies to be sufficient. Similarly, a large majority believed that the Scottish Government should introduce specific remedies to tackle and prevent forced marriage and to protect victims of a forced marriage which had already taken place.33

35. Respondents to the consultation generally supported new legislation and felt that it would:

  • help change public opinion, and thus perception and practice, on forced marriage;
  • have a stronger deterrent effect than current civil remedies;
  • provide better clarification for those working in the statutory and voluntary sectors to tackle the issue of forced marriage;
  • raise awareness of the issue amongst the wider population; and
  • send a clear message to the Scottish population that forced marriage has no place in Scotland.34

36. In light of the response to the consultation, the Scottish Government decided to introduce primary legislation which it considered would play an essential part in eradicating forced marriage in Scotland. The Scottish Government did not consult on the specific content of a draft bill.

scale of forced marriage

37. In considering the need for legislation, the Committee sought to identify the prevalence and scale of forced marriage in Scotland.

38. The Committee understands that the true number of cases of forced marriage is not known as cases are often under-reported.35 It also acknowledges that there is difficulty in identifying the number of forced marriages given the complex nature of the practice and its linkages with other forms of abuse. Laura McCrum of Saheliya explained—

“Some women can articulate that their issue is forced marriage, but others cannot. There is therefore a massive grey area in the issues that are presented. Clients present with issues such as domestic abuse, bullying or enforced isolation. We can say that we saw six clients this year for forced marriage, but the indicators from different issues that other clients presented in their initial assessment with counsellors show that there could have been another 35 clients for forced marriage.”36

UK data

39. The FMU collects data on the number of reports made to its UK-wide forced marriage helpline and the number of forced marriage cases it deals with across the UK. This data can be disaggregated on a regional basis throughout the UK. In terms of UK data presented to the Committee the FMU said that between January and November 2010, it had dealt with 437 cases of forced marriage throughout the UK, which was an increase from 377 cases in 2009. There had also been a slight increase in the percentage of cases originating in Scotland, rising from 1% in 2009 to 2.5% in 2010.37

40. The FMU said in correspondence—

“The majority of cases reported to the Forced Marriage Unit to date involve south Asian families. This is partly a reflection of the fact that there is a large established South Asian population in the UK. However, it is clear that forced marriage is not solely a problem within South Asian communities, as there have been cases involving families from the Middle East, Europe and Africa.”38

41. The Committee was also told in the same letter that, of the cases dealt with by the FMU in 2010, 49% involved people from Pakistan, 10% from Bangladesh, 8% from India and 5% from Africa. 2% came from Turkey and 1% came from Afghanistan, Iran and Iraq. 2% came from other Middle Eastern countries and other known countries, with the remaining 15% of cases being solely linked to the UK or of unknown origin. Suzelle Dickson of the FMU told the Committee that, of these figures, there had been an increase in the number of people affected by forced marriage in Middle Eastern, African and European countries.39

42. The majority of reported cases of forced marriage involved women. In 2010, 87% of cases involved female victims with the remaining 13% involving male victims. However, the number of cases concerning male victims has increased in recent years from 134 in 2008 to 220 in 2009 (a 65% increase).40

43. In terms of age profile, the FMU suggested that victims of forced marriage were young people between 15-24 years of age. The oldest victim made known to the FMU was 62 with the youngest aged only nine.41

Scottish data

44. Scottish based support agencies who had dealt with female victims of forced marriage told the Committee that they had also supported victims from the older age group. Laura McCrum of Saheliya explained to the Committee—

“Interestingly, our stats threw up the fact that when we are talking about British nationals and second or third generations we are dealing with a younger population, but when we are talking about non-British nationals it is a much older population.”42

45. Shakti Women’s Aid told the Committee that in 2006-07, it had dealt with six cases of forced marriage, with the same number of cases the following year. This reduced to four in 2008-09 but increased to seven in 2009-10. Between April and September 2010, it had dealt with seven cases.43

46. Hemat Gryffe Women’s Aid said that it had dealt with 14 cases of forced marriage from April 2009 to January 2010 and that it had also seen an increase in cases over the last two years.44

47. An increase in the prevalence of forced marriage was also commented upon by Assistant Chief Constable Iain Livingstone of Association of Chief Police Officers in Scotland (ACPOS) who told the Committee—

“In the past five to 10 years, the whole concept of forced marriage and associated but different elements of so-called honour-based violence have become far more prevalent.”45

48. A number of witnesses acknowledged that, whilst the number of forced marriage cases in Scotland appeared to be quite low, the impact of forced marriage was high. John Fotheringham of the Scottish Law Society told the Committee—

“Because of the population demographic in Scotland, forced marriage will always be a low incidence matter. However, although forced marriage is low incidence, it has an extremely high impact.”46

49. It was considered by some witnesses that whilst data is important in identifying the scale of the problem and any trends, the primary focus should not be on the figures, but on the impact that this has on the individual.

50. In terms of improving the data available, the Minister for Housing and Communities told the Committee that the Scottish Government was working with the Forced Marriage Network,47 the Scottish Court Service and ACPOS to consider the best approach to data collection on forced marriage in Scotland.48

General response to the Bill

51. The evidence the Committee received overwhelmingly welcomed the Bill as a positive step in offering protection to those who have been forced, or may be forced, into a marriage.

52. Evidence received considered that the Bill would send a strong public message that forced marriage in Scotland would not be tolerated. In this regard, the Scottish Council of Jewish Communities stated in its written submission—

“Legislation is not merely about criminalising particular activities; it is also a means by which a society indicates its standards and ideals, and signposts its aspirations; and we therefore believe that there is a strong case for legislation relating to forced marriage. The Scottish Parliament has a duty to provide leadership to create a society in which individuals and communities feel safe to live their daily lives.”49

53. Assistant Chief Constable Iain Livingstone of ACPOS told the Committee—

“The Bill's value lies in its public message. We need to bring the matter into the open and to secure an absolute consensus that forced marriage will not be tolerated.”50

54. Laura McCrum of Saheliya believed that the Bill would bring positive benefits to victims of forced marriage—

“I see the bill as a way to offer more direct support to women and ensure that they feel more confident and more empowered to come forward and stand up for their rights in such situations.”51

55. Several witnesses also highlighted support for the approach the Scottish Government had taken to introduce civil, rather than criminal, legislation on forced marriage. Amina Muslim Women’s Resource Centre argued that the introduction of civil legislation created the right balance between identifying the seriousness of breaching human rights and cultural sensitivity and avoiding the criminalisation of families—

“This civil legislation overcomes many of the concerns raised about the previous proposals for criminal legislation: many individuals would not consider pressing criminal charges against their parents even if they were potentially being forced to marry. It would be anathema to do so. By providing a civil remedy, the legislation creates accessible protection.”52

56. In oral evidence, Amina’s Director, Smina Akhtar added—

“I am a practising Muslim woman and I know that there are a lot of progressive and forward-thinking imams and religious leaders in Scotland who support the bill and have spoken out publicly to support it. We, as a Muslim organisation, definitely support it.”53

57. In terms of evidence received which was not supportive of the Bill, the Muslim Council of Scotland said that there was already sufficient legislation in place to prosecute the perpetrators of forced marriage and that education, mediation and raising awareness of forced marriage would be more beneficial than the introduction of legislation. It argued—

“A new law on forced marriage will have the real risk of being seen to target ethnic minorities. Any law in this regard which is promoted as a tool to help victims and deter offenders is most unlikely to be effective because of the nature of the problem and the cultural as well as familial sensitivities involved. A coercive tool in a family and cultural setting is rarely, if ever successful.”54

58. The Black and Ethnic Minorities Infrastructure in Scotland (BEMIS) said in its submission—

“The proposed bill fails to recognize the circumstances in which agency takes place; it ignores the several constraints that women face. In fact, there are multiple forms of oppression such as issues of gender compulsory heterosexuality, culture and poverty which are key to understand the complexities of forced marriage: it is in these conditions that forced marriage thrives. Forced marriage must be approached much more broadly: in relation to the communities in which it occurs, to the structural inequalities inherent in these.”55

59. BEMIS also commented that the Bill—

“Insists on approaching forced marriage in relation to individual choice. This approach is bound to fail because it ignores the fact that women forced into marriage inhabit families and communities where the notion of choice is meaningless.”56

60. In addressing concerns raised about the Bill, Girijamba Polubothu of Shakti Women’s Aid told the Committee—

“We all accept that forced marriage is against human rights and the wrong thing to do. If we all accept that, we should do something about it. As a BME woman, I expect that from the Government. If it did nothing, it would be pulling out of its duty, and I would see that as discriminatory. The bill is necessary. Yes, there will be people who might not use it, but it is not for those who do not want to use it. The bill will ensure that women have a choice. If they do not want to use it, that is fine, but if they wanted to use it but it was not there for them, that would not be right.”57

61. Laura McCrum of Saheliya added that the Bill—

“Is saying not just to Scotland but to the rest of the world, ‘this is our standpoint on forced marriage, we’re not going to condone it’.”58

62. The Committee recognises that it is difficult to ascertain the true scale of forced marriage in Scotland as cases are often under reported and there is little systematic reporting of cases by support agencies and collation of such data. The Committee welcomes comments made by the Minister for Housing and Communities that the Scottish Government is working with other relevant organisations to establish the best approach to data collection on forced marriage in Scotland.

63. The Committee acknowledges that, from the evidence that is available, a relatively small number of forced marriages take place in Scotland each year. It notes that on this basis, and the fact that there are civil remedies already available, a question has been raised in evidence about the need for primary legislation.

64. The Committee also notes the view expressed in evidence that instead of legislation, there needs to be a public awareness and education campaign in Scotland. The Committee strongly agrees that this is needed, in addition to the legislation, to ensure that the issue of forced marriage is understood and addressed.

65. However, having heard harrowing evidence on the damage that forced marriage does to individuals in particular and to society more generally, the Committee supports the view expressed by many witnesses that while numbers may be relatively low, the detrimental impact of forced marriage is extremely high and cannot be tolerated; that civil remedies are not sufficient; and that forced marriage must be addressed through more victim-centred legislation which is supplemented by a public education campaign to raise awareness about this abhorrent practice.

66. The Committee also recognises that the introduction of legislation would bring Scotland in line with existing legislation in terms of preventing forced marriage and protecting victims in the rest of the UK.

MAIN ISSUES CONSIDERED

Part 1

67. Part 1 of the Bill makes provision in relation to forced marriage protection orders.

Sections 1-4: Forced Marriage Protection Orders

68. Section 1 of the Bill would enable the Court of Session or a sheriff court to make a forced marriage protection order (FMPO) for the purpose of protecting a person from being forced, or from any attempt to force them, into a marriage; or protect a person who has been forced into a marriage.59 Through such an order, the court can require those responsible for forcing another person into marriage to stop or change their behaviour.

69. The Policy Memorandum states that while existing civil remedies may be available to protect or assist a person who is being, or has been, forced into a marriage, this can often be “costly, complex and may be incomplete.”60 The Bill seeks to simplify the process and be tailored to the needs of victims.

70. The Committee received evidence from the FMU that FMPOs had been operating well in England and Wales under the Forced Marriage (Civil Protection) Act 2007. In the first year of the Act’s implementation, nearly double the number of orders that had been expected had been taken out. Between November 2008 and November 2010, 247 orders had been issued.61

71. The introduction and use of FMPOs were welcomed in the vast majority of submissions to the Committee.

72. Glasgow Community and Safety Services believed it would give victims of a forced marriage the option of taking decisive action to protect themselves and would serve as a deterrent to individuals who abuse family members in this way.62

73. The Equalities and Human Rights Commission (EHRC) welcomed provisions in the Bill which would allow the court to make both preventative and positive orders. It believed that this was particularly important where the court could make a positive order, such as requiring a person to submit passports and birth certificates to court, as it could prevent someone from being forced into marriage in an overseas jurisdiction.63

74. In oral evidence, Louise Johnson of Scottish Women's Aid, summed up the views of many who provided evidence—

“The beauty of having a forced marriage protection order is that it does what it says on the tin […] It is very clear what it is for. When it comes to promoting it and raising awareness of what it is and what it does, it is not something archaic or complicated like a non-harassment order or an interdict; it is a forced marriage protection order.”64

75. The Committee notes the broad support for the introduction of a Forced Marriage Protection Order, and accepts that this provides a simpler procedure that people can understand, in contrast to the complicated current legal recourse through an order or an interdict. It welcomes the introduction of FMPOs and supports the view of the majority of witnesses, and of the Scottish Government, that this will be an effective, preventative and protective measure in the fight against forced marriage.

Definition of force

76. Section 1(6)(b) of the Bill sets out a definition of “force” which includes the coercion by threats or psychological means or to knowingly take advantage of a person’s incapacity to consent to marriage or to understand the nature of the marriage.

77. The Scottish Independent Advocacy Alliance particularly welcomed this provision in the Bill.65

78. In its evidence however, the EHRC considered that whilst these were positive inclusions in the definition of “force” and should be retained, the section should be broadened to include and explicitly mention—

“(a) the use of deception: where a person is given false information that prevents them from making a fully informed decision about the marriage; and

(b) the abuse of an individual’s vulnerability: this could include a particular characteristic of an individual that increases the vulnerability of their situation (such as a learning disability or language barrier); or it could be an aspect of their immediate environment that could include familial, cultural or economic pressures.”66

79. Louise Johnson of Scottish Women’s Aid also called for the definition of “force” used in subsection 1(6) to be more explicit and include the physical aspect of coercion and abuse.67 This view was supported by Assistant Chief Constable Iain Livingstone of ACPOS who told the Committee—

“My slight fear is about the interpretation in section 13, that "force' and related expressions have the meanings given by section 1(6).

Although that includes coercion by threats and psychological means and taking advantage of incapacity, for the purpose of being explicit we would prefer a definition of physical and actual force. Again, that may be implied but it would be easier were the bill to say it.”68

80. This view was reinforced in the ACPOS submission—

“Consideration should be given to strengthening the definition of forced to include the physical aspect of coercion and abuse in addition to threats or other psychological means. Although the physical abuse of a person may be subject to criminal investigation and proceedings under specific crime or offence types, it is imperative that the legislation reinforces that physical violence will not be tolerated.” 69

81. Several witnesses believed there was merit in including examples of actual “psychological means” in the definition of force to make it clear to perpetrators that the activities they were taking part in could be identified as constituting force. The joint written submission from Scottish Women’s Aid, Shakti Women’s Aid and Hemat Gryffe Women’s Aid explained—

“Third parties and family members have also resorted to blackmail, threatened blackmail, and emotional coercion such as threatening to harm themselves if the protected person did not go through with the marriage or disclosed the matter to the police, etc. Therefore, it would be useful for the Explanatory Notes covering this section to include these situations as examples of “psychological means.”70

82. The Committee invited the Minister for Housing and Communities to respond to the views expressed about the definition of “force” used in the Bill and the calls to make this more explicit. The Minister explained that the Scottish Government did not consider it necessary to list all the types of physical abuse that could constitute force as the Bill was drafted in such a way as to assume that force is included—

“I think that the definition's threshold is so low that it covers all eventualities. To list all eventualities in the bill could be counterproductive”71

83. John St Clair from the Scottish Government’s Legal Directorate added—

“The section is drafted in such a way as to assume that major force is included, and it sets out one or two other aspects, such as the psychological aspect. It is not necessary to list all the types of physical abuse that could constitute force: that is assumed, and it is in case law.”72

84. The Minister did however helpfully add that he would be open to giving further consideration to the definition in light of the Committee’s comments.73

85. The Committee acknowledges the Scottish Government’s view that section 1(6) is drafted in such a way as to assume that major force is included. However, it believes that the definition of “force” should be explicit in the Bill. It therefore supports the view expressed in evidence that the definition of “force” should be strengthened in the Bill by way of amendment to include the physical aspect of coercion and abuse in addition to threats or other psychological means. The Committee believes that by including this on the face of the Bill, it will reinforce the fact that physical violence will not be tolerated.

Jurisdiction of Forced Marriage Protection Orders

86. Section 2 of the Bill relates to the contents of FMPOs. Section 2(2) of the Bill provides that a FMPO may relate to ‘conduct outwith (as well as, or instead of, conduct within) Scotland’.

87. Girijamba Polubothu of Shakti Women’s Aid believed that there should be some provision for conduct outwith Scotland as most forced marriages had an international element.74 The Scottish Women’s Convention said that it had received evidence from women that existing civil remedies had not been enforceable outwith the UK and therefore, in a number of cases, the perpetrators had not been brought to account for their actions.75

88. Questions were also raised in evidence about whether the courts would be able to respond to actions that take place in other countries. Professors Crawford and Carruthers of the Law Faculty of the University of Glasgow in their written submission said—

“Although not per se a piece of conflict of laws legislation, the Bill nonetheless has conflict of laws implications and, paradoxically, is bolder than many international private law provisions to date, in taking to itself power to regulate conduct outside Scotland. This raises issues concerning the territorial operation of UK/Scottish statute law. Statutes are presumed to have a strictly limited territorial effect so that, in general, they apply only to persons and property in the territory in which the legislation was enacted.”76

89. They went on to question the validity of the provision in the Bill—

“If the person is not ordinarily resident in Scotland, the Scottish Order, in practice, can be little more than a provisional, protective measure effective only so long as the protected person remains in Scotland, and is probably only effective in Scotland.”77

90. John Fotheringham of the Law Society of Scotland agreed that an FMPO would not be enforceable outwith Scotland. He accepted that an order would be breached if the individuals to whom it applied returned to Scotland, but that “the power will be therapeutic, rather than anything else.”78

91. The Minister for Housing and Communities sought to address these concerns about jurisdiction—

“If a forced marriage protection order has been issued against someone, it will be in place worldwide as far as we are concerned, and there are certain circumstances in which we would pursue it worldwide.”79

92. He added that there were different factors which would affect how such a person would be pursued—

“The option that we would follow would depend on the territory to which the person had gone, on knowing where they are, obviously, and on the country's legal relationship with the United Kingdom for extradition.”80

93. In a subsequent letter to the Committee, the Minister clarified the approach in enforcing a FMPO abroad—

“There are several ways in which orders can be effective. For example, orders in some foreign countries can be enforced directly through the local courts, if there is a treaty with the UK for the reciprocal enforcement of civil decrees. Secondly, because not obeying a forced marriage protection order creates a criminal offence in Scotland, an offender could be extradited if there is an extradition treaty with the UK. Finally, even without those formal legal machineries, the existence of an order can assist a local High Commission or consular service in their diplomatic efforts to prompt local protective action in the foreign country.”81

94. The Committee notes that the Scottish Government’s approach to enforcing FMPOs abroad mirrors the approach being undertaken by the FMU. Suzelle Dickson of the FMU emphasised that in cases in which legal proceedings have been initiated overseas, those courts had looked favourably on orders from the UK when trying to determine the risk to a person, however she acknowledged that, ultimately, an order had no jurisdiction abroad.82

Domicile of protected person

95. Professors Crawford and Carruthers of the Law Faculty of the University of Glasgow argued in their written submission that the Bill does not make it clear how long the person applying for a FMPO has to be domiciled in Scotland—

“If the person is not ordinarily resident in Scotland, the Scottish order, in practice, can be little more than a provisional, protective measure effective only so long as the protected person remains in Scotland, and probably effective only ‘in Scotland’.”83

96. In response to this concern, the Minister for Housing and Communities stated that there was no specified period someone had to be domiciled in Scotland before they could apply for an FMPO. He indicated—

“There is no specified period. Anybody who is in Scotland, and who is living in Scotland, can apply for a forced marriage protection order. The person’s stay here could be as short as just over a month – 40 days – or they could have been living here longer. There is no prescription on that. It would be up to the court to decide whether the person was domiciled in Scotland.”84

97. The Scottish Government provided further clarification in a subsequent letter to the Committee—

“The courts will almost certainly accept jurisdiction if the person to be protected is domiciled or ordinarily resident in Scotland, but this qualification is not necessary.

This is implied in section 3(6) which entitles an action to be brought in Edinburgh sheriff court even if the person to be protected is not ordinarily resident in Scotland.

In cases where the protected person is not ordinarily resident in Scotland, the courts will look for some connection with Scotland or at least with the United Kingdom. Close members of family being resident in Scotland could well suffice. Where the connection is flimsier, the courts will look particularly closely at a) how effective any order is likely to be in preventing the mischief complained of; and b) the gravity of the mischief.”85

Removal of a protected person abroad

98. Section 2 (3)(f) and (g) of the Bill state that an FMPO may require a person to refrain from taking the protected person abroad and to facilitate or otherwise enable the protected person or another person to return to the United Kingdom within such a period as the court may specify.

99. In their joint submission, Scottish Women’s Aid, Shakti Women’s Aid and Hemat Gryffe Women’s Aid expressed concern about the use of the term “abroad” in Section 2(3)(f). They considered that this should be changed so that the reference in the Bill is “to refrain from taking the protected person to another part of Scotland or outside Scotland.” They considered that the term “abroad” would not prevent a protected person being moved to Wales, England, Northern Ireland, or the Republic of Ireland. They were also of the view that this subsection must prevent the removal of the protected person to another location within Scotland.86

100. John Fotheringham of the Law Society of Scotland also expressed concern on this point—

“I see no reason why the Scottish statute should not allow the court to prohibit the removal of a person from Scotland, unless there is to be a very tight correlation between the Scottish and English systems. The order should be to prevent the removal of a person from Scotland.”87

101. The Law Society of Scotland also expressed concern about section 2(3)(g) as it would not prevent a protected person being removed from Scotland only from remaining within the UK. In its written submission, it said—

“In respect of section 2(3)(g), the sub-committee would question whether it is sufficient to ensure that the protected person or other person in question is returned to the United Kingdom. Unless the Scottish Government is fully satisfied that it has clear lines of communication with forced marriage units in the other UK jurisdictions (and given that forced marriage legislation is already in place in England and Wales), the sub-committee would suggest substituting ‘United Kingdom’ with ‘Scotland’.”88

102. Suzelle Dickson of the FMU highlighted that a similar provision in the UK Act was more specific and an order could restrict a person from being removed from England or Wales or to any other part of the UK.89

103. The Committee supports the approach taken in the Bill that FMPOs should also relate to ‘conduct outwith’ Scotland, given that many cases of forced marriage have an international dimension. It recognises however, that FMPOs do not have any jurisdiction abroad.

104. The Committee considers therefore that, in order to successfully implement an FMPO abroad, this will require the existence of an extradition treaty between the countries. In the absence of such a treaty, the Committee believes that there would have to be a very good working relationship with the country concerned if an FMPO is to be successfully implemented.

105. The Committee acknowledges the view of the Minister for Housing and Communities that even without formal legal machineries, the existence of an FMPO may assist a local High Commission or consular services in their diplomatic efforts to prompt local action abroad.

106. The Committee notes the concerns expressed in evidence about sections 2(3)(f) and (g) and agrees that these provisions need to be tightened up. It therefore recommends that the Scottish Government should consider an amendment to section 2(3)(f) which would make it clear that an FMPO may require a person to refrain from taking a protected person to another part of Scotland or outside of Scotland. It also recommends that the Scottish Government considers an amendment to Section 2(3)(g) to substitute “United Kingdom” with “Scotland”.

107. The Committee notes the concerns raised by some witnesses in evidence regarding how long a person has to be domiciled in Scotland before they can apply for an FMPO. It also notes comments made by the Minister for Housing and Communities who said that there is no specified period in this regard, and whether or not a person was domiciled in Scotland would be a matter for the courts to decide. The Committee acknowledges that there is no prescribed period in relation to whether someone is domiciled in Scotland, and it accepts that this would be a matter for the courts to determine in individual cases.

Naming the person who poses a risk

108. In their joint submission, Scottish Women’s Aid, Shakti Women’s Aid and Hemat Gryffe Women’s Aid questioned whether an FMPO would specifically name persons who are considered “to pose a risk of conduct or potential conduct or actings against a protected person.”90

109. The Committee notes that the Bill does not make provision for this, and the Minister for Housing and Communities told the Committee—

“I am open to suggestions on that; there is a case both for and against. There are obvious dangers in naming the person, but there may be circumstances in which the person should be named.”91

110. The Committee acknowledges that the Bill does not make provision for FMPOs to specifically name the person who poses the risk to a protected person. It agrees with the Minister for Housing and Communities that there may be circumstances in which naming the person may present dangers to the protected person, but that there may also be circumstances in which the person should be named. The Committee recommends that the Scottish Government gives further consideration to bringing forward an amendment which would allow for the naming of the person who poses the risk in certain circumstances, which should be defined.

Third party applications

111. Section 3 of the Bill makes provision for applications for FMPOs by third parties. A relevant third party is defined as a local authority, the Lord Advocate or a person specified by order made by the Scottish Ministers.

112. This provision was widely supported in evidence as it reduces the burden of responsibility on the victim who, by the very nature of their situation, may not be in a position to take action on their own behalf. In this regard, Assistant Chief Constable Iain Livingstone of ACPOS told the Committee—

“One of the bill’s virtues is the proposal to allow an application by a relevant third party. A person would not need to be an expert in family law or Scots law in any way, shape or form. If they came to a support agency, such as the police or the health service, and said that they had an issue, that might allow access to some form of justice. Although the current onus on the victim is a barrier, the bill will provide more support for the victim.”92

113. Statistics on the use of third party applications under the UK Act show that more applications have been made to date by third parties than those made by the victims themselves. Since the UK Act came into force, 103 third party applications have been issued.93

114. The evidence received by the Committee was supportive of local authorities being defined as a “relevant third party,” however clarification was sought on some issues.

115. For example, South Lanarkshire Council sought clarification on the statutory requirements on local authorities with regard to the requirement in the Bill which states that an FMPO may require them to “take a protected person to a place of safety designated in the order”.94

116. Scottish Borders Violence Against Women Partnership took the view that it was imperative that local authorities are supported to implement the required process and protocols to lodge applications including guidance.95

117. Some support agencies believed that it was not clear to which parts of the local authority a relevant third party is intended to refer.96John Fotheringham of the Law Society of Scotland considered, for example, that social workers should be able to apply for an order. He also felt that there may be circumstances in which a local authority could apply for an FMPO through a teacher. He believed that teachers may be among the first people to be aware of a forced marriage, citing potential indicators such as a child not attending school, a sudden drop in academic performance or a child being removed from school without explanation.97

118. Support agencies who provided evidence to the Committee were keen to ensure that local authorities are well placed to deal with their duties under the Bill. The joint submission from Scottish Women’s Aid, Shakti Women’s Aid and Hemat Gryffe Women’s Aid stated—

“Regardless of which part of a local authority this applies to, it is absolutely crucial that those directly involved in applying for Orders do not simply have this responsibility ‘bolted on’ to their other duties and that care and attention will be taken to ensure that this work is regarded as a specialised support area.”98

119. The need for relevant third parties to take ongoing responsibility for monitoring those individuals who have been the subject of an FMPO was also raised in evidence. Louise Johnson commented—

“If the protected person is still living with their family or is in close contact with them, they may be at risk of physical harm, emotional coercion, blackmail and so on while the application is being made. Provision must be made for people who are relevant third parties to take some responsibility for the individual's safety and support while that is happening.”99

120. The Minister for Housing and Communities told the Committee—

“Local authorities have a crucial role to play both in applying for a forced marriage protection order, if they so decide, and in ensuring that the totality of support is available and provided to the victim.”100

121. The Minister added that there is a need for a specialist team in each local authority to deal with the Bill—

“It is up to each local authority to decide how it organises its internal affairs. Nevertheless, we have had substantial discussions with Glasgow City Council, as we believe that Glasgow is where a high proportion of the cases will come from. In the discussions that we have had with Glasgow City Council and other local authorities, there has been a recognition that there is a need for specialist training, guidance and support in the area. The lead may well fall within a particular department, such as social work; however, there is recognition of the need for a specialist team with the necessary skills to deal with this unique bill and unique circumstance.”101

Specification of a relevant third party

122. Section 3(7)(c) of the Bill provides for Ministers to specify relevant third parties that will have the automatic right to apply for an order. As indicated above, these are defined as a local authority, the Lord Advocate or a person specified by an order made by the Scottish Ministers. Calls were made in evidence for consideration to be given to other organisations being designated as relevant third parties.

123. Scottish Women’s Aid asked whether the police might be regarded as a relevant third party in the Bill given its child protection responsibilities and supporting the victims of domestic abuse.102

124. In response, the Minister for Housing and Communities explained that it would not be appropriate for the police to be recognised as a relevant third party—

“In every case in Scotland, the police operate through the procurator fiscal and go to court through the procurator fiscal. Given that under the bill, the Lord Advocate has the power to go straight to court without asking permission, as do the local authority and the person involved, it is better to maintain the status quo in the relationship between the police and the Crown Office and Procurator Fiscal Service.

If we went down the road of allowing the police to go straight to court rather than through the Procurator Fiscal Service, the police would have to be given their own legal advisory service.”103

125. Support agencies believed that they should be included as relevant third parties. The joint submission from Scottish Women’s Aid, Shakti Women’s Aid and Hemat Gryffe Women’s Aid stated—

“It would be appropriate to consider that specialist and expert voluntary sector organisations, such as Shakti Women’s Aid, who have extensive, professional experience in supporting women who are at risk of forced marriage or have been forced into marriage, should be included within the category of ‘relevant third party’.”104

126. The Minister responded positively to this suggestion—

“We are open to that suggestion and we will consult on it when we issue the guidance. Such agencies will not be named in the bill, but they could be nominated once the bill was passed—we would have the ability to do that. Ideally, we would want to agree criteria for any agency that is to be nominated to have the automatic right to apply.”105

127. The Committee welcomes the provisions in the Bill which allow for third parties to make applications for FMPOs. It believes that third party applications are an important part of ensuring a victim centred approach. They will help to protect the victim who, without these provisions, would be left to come forward and make an application of their own accord.

128. The Committee notes the view expressed by some witnesses that the police should be included in the list of relevant third parties. It agrees with the Scottish Government however that this may present difficulties given the relationship between the police and the Crown Office and Procurator Fiscal Service, and the fact that the Lord Advocate is listed as a relevant third party.

129. The Committee also notes the desire of specialist support agencies to be listed as relevant third parties. The Committee considers that there may be some merit in specialist support agencies being included in the list of third parties on the face of the Bill, but accepts that the list could become unwieldy. It therefore welcomes provisions in the Bill which allow for Scottish Ministers to add additional third parties by way of subordinate legislation, and also the Minister’s commitment to consult on suggestions for other agencies and on the criteria for agencies to be given the automatic right to apply for an FMPO.

130. The Committee acknowledges the evidence it received from local authorities seeking clarification of their role in relation to being designated a relevant third party. It also notes concerns expressed by other witnesses that the term “local authority” is too general and should be more specific in terms of who within a local authority can make a third party application.

131. The Committee notes the Minister’s comments that lead responsibility within each local authority may rest within a particular area, and that there is a recognition of the need for a specialist team with the necessary skills to deal with the Bill.

132. It accepts that the term “local authority” may have been used in the Bill to cover all eventualities in terms of who within each authority can make an application for an FMPO. However, given the concerns expressed in evidence, the Committee asks the Scottish Government to look again at section 3(7)(a) and consider whether this needs to be more specific in relation to which relevant posts within a local authority can make a third party application.

133. The Committee notes that the Scottish Government is consulting with local authorities and COSLA on issues such as training and aftercare services. The Committee believes these are vital in terms of the Bill’s victim centred approach. However, in light of concerns expressed in evidence about the ongoing monitoring of cases following the issue of an FMPO, the Committee asks the Scottish Government to provide it with further information on the ongoing responsibilities of all third parties to monitor and implement aftercare services, and to consider whether the Bill and the guidance on the Bill needs to reflect these important responsibilities.

Sections 5-8: Interim orders, duration, variation, recall and extension (of orders)

134. Sections 5 to 8 of the Bill enable the courts to make interim orders, specify a time period for an FMPO, and to vary, recall and extend an order on its own initiative. A person who wishes to vary, recall or extend an order must apply to the courts to do so.

135. The Committee explored the issue of an FMPOs’ duration and the circumstances in which a maximum or minimum period should be in force.

136. An example of where it would not be appropriate for an FMPO to be issued with a specific time limit, is where there is a need to protect an individual with a learning disability where the person may not understand the concept of marriage. Suzelle Dickson of the FMU explained that in such cases under the UK Act there would be an expectation that social services and social care would be involved and would contribute to the assessment of risk to the person that the court requests. There would also be on-going assessments within the relevant agency to determine whether the person was still at risk.106

137. A further example where setting a time limit seems inappropriate, is in the kind of situation that Shakti Women’s Aid drew to the Committee’s attention, whereby a young person had been misled by her family into believing that they had changed their ways and she would not be forced into marrying. However, after a year, the young person was taken abroad and forced to marry.107

138. John Fotheringham of the Law Society of Scotland considered that if orders do not have a time limit placed upon them, they would continue until they are recalled. He provided an example of where that might be problematic—

“It is quite possible that a young woman might say that she is being forced into a marriage that she does not want, and an order will be granted, just to sit on the court file. Five years later, things might have moved on and the couple might marry, forgetting that there was an order rendering their marriage invalid, with all the implications for succession and financial provision on divorce.”108

139. The Minister for Housing and Communities told the Committee that whilst a sheriff can put a time limit on an FMPO, the Scottish Government anticipated that most orders would not be time limited—

“The order can last forever, unless it is rescinded by a court. There is no deadline for expiry of the order. It is there and will remain there.”109

140. He added—

“We think it more likely that the orders that are time limited will concern situations in which, for example, a vulnerable person has to be taken to a place of safety and kept safe for three weeks. It might be that another week is needed, in which case the order could be extended. The normal orders, preventing violence, are much more likely to be open-ended, even at the interim stage.”110

141. A subsequent letter from the Scottish Government explained—

“Although they [orders] are not normally formally brought to an end, with the passage of time, they usually become ‘spent’ in the sense that the mischief complained of is no longer threatened and so the need for a court order prohibiting behaviour is obsolete. So, for example, if the person interdicted dies or the behaviour interdicted comes to an end by the person marrying someone else or leaving the country or the protected person coming of age.

Some orders are however time limited and section 8(1) makes clear that it only applies where a forced marriage protection order specifies a period for which it is to have effect. So for example the order may say that a person is to be kept in a place of safety for a week but events transpire that this needs to be extended by a further week, or it is necessary for evidence to be kept longer than originally specified. There can be many types of situation when a time limited order is given and it might need to be extended because of new circumstances.”111

142. The Committee also heard concerns in evidence about how, if an order is varied, recalled or extended, an investigation will take place to deem whether or not that is necessary. In response, the Minister indicated—

“If it is necessary to go back to the court, the person who was the victim can do so, as can the Lord Advocate, the local authority or any organisations that we can name. Obviously, they would need to do so with the reasoning and evidence to support whatever it is that they want the court to do.”112

143. In terms of whether a court would take into account the views of the victim, the Minister said that he could not imagine any sheriff not giving a great deal of weight to the victim’s views. He pointed out that section 1(3) of the Bill deals with this issue as it states that “in ascertaining the protected person’s well-being, the court must, in particular, have such regard to the person’s wishes and feelings”.113

144. The Committee notes the concerns expressed in evidence about time limits on FMPOs. It accepts however that each case will require to be treated on its own merits in this regard. The Committee believes that the right balance has been achieved by making orders open-ended but allowing for time limits to be introduced if an individual situation warrants this approach. It is vital however, that there is close monitoring of individual situations and circumstances to ensure that an order continues to remain valid and in force or if it requires to be time limited or subjected to some form of variation.

Section 9: Offence

145. Section 9 of the Bill would make it a criminal offence to breach a FMPO and it sets out the penalties that may be imposed. These include imprisonment for up to 12 months, and/or a fine. In more serious offences, the period of imprisonment can extend up to 2 years.

146. This provision in the Bill differs from the UK Act where breach of an order in England, Wales and Northern Ireland is not a criminal offence, but is dealt with as contempt of court. However, the respondent may still be arrested if the police believe there is reasonable cause to suspect there is a breach of the order.114

147. In oral evidence, the FMU suggested that part of the reason why, under the UK Act, a breach of an order was made a civil contempt of court rather than a criminal offence was as a result of the views received in response to the UK Government’s consultation on the Bill. The argument had been made in responses that criminal proceedings would have the counterproductive effect of making victims unwilling to engage because they would not want their families to be criminalised.115

148. In terms of the Scottish Government’s consultation on the Bill, respondents were broadly supportive of the proposal to make a breach of an order a criminal offence. It was suggested that it would discourage wider family and third party involvement, increase accountability, strengthen the message that forced marriage will not be tolerated, make a perpetrator take the issue more seriously, and provide for greater protection and safety for victims.116

149. Submissions to the Committee also reflected the view that the breach of an order should be a criminal offence. Glasgow Community and Safety Services said—

“Making it a criminal offence to breach a forced marriage order simply adds “teeth” to it and strengthens the law's ability to effectively protect the victim.”117

150. Smina Akhtar of Amina Muslim Women’s Resource Centre also expressed support for this measure and suggested that an FMPO would be meaningless without this deterrent—

“Once an order has been issued, the perpetrator will be told that breaching it is a criminal offence, which will deter them. If they are told that not much will happen if they breach the order, what is the deterrent?”118

151. Several witnesses, including Louise Johnson of Scottish Women's Aid,119 called for the power of arrest to be made explicit at Section 9 of the Bill. Assistant Chief Constable Iain Livingstone of ACPOS told the Committee—

“We would like an explicit power of arrest to be attached to that section, just for clarity. One could argue that such a power is inferred or implied, but why argue if we can state it explicitly? That would make the bill consistent with the legislation on matrimonial homes and the Protection from Harassment Act 1997.”120

152. In its submission, the EHRC also noted that making a power of arrest explicit in the Bill would bring the legislation into line with the Domestic Abuse (Scotland) Bill121 which is also currently being considered by the Scottish Parliament.122

153. However, the Minister for Housing and Communities believed that making an explicit power of arrest was not necessary—

“In effect, the power of arrest already exists under existing legislation. Indeed, it is possible for the sheriff, in issuing the order, to provide for the power of arrest without warrant if there is a breach of the order. That also means that it is not necessary to build in the power of arrest.”123

154. The Minister did concede however, that he would be open to placing a power of arrest on the face of the Bill if there was support for this approach—

“It is, however, something that I would not go to the barricades about. If the committee feels that we should explicitly build in the power of arrest, I would not resist that, but we genuinely think that it is not necessary.”124

155. Several witnesses called for clarity on the reporting and notification procedure for acting upon a breach of an FMPO. Louise Johnson of Scottish Women's Aid sought clarification on whether the protected person would have to take the matter back to their solicitor to have the breach brought before the court, or whether it would have to be reported to the police. She also asked whether a relevant third party or another person would be able to report the breach or whether this will have to be done by the protected person.125

156. In response, the Minister emphasised the importance of ensuring that the victim has continuing multi-agency support which would include local authorities and the police. He stated that the police will be responsible for enforcing orders and dealing with any breach of orders.126

157. In seeking to identify the extent to which breaches of an FMPO might arise, the Committee asked the FMU to provide it with details of the number of breaches that had arisen since the UK Act came into force in 2008. In its response, the FMU told the Committee that there had been five known breaches—

  • two allegations of breaches (relating to the same order) were not proceeded with due to a lack of evidence and cooperation of the victim;
  • one breach related to the respondent encouraging family members to intimidate the victim and resulted in an extension of the previous order by nine months;
  • one breach related to the respondent entering the family home and resulted in bail conditional on restriction of behaviour of respondent in relation to some of the witnesses; and
  • one breach related to a respondent making contact with the victim, breach proceedings had been adjourned.127

158. The Committee supports the approach taken in the Bill that a breach of an FMPO should be a criminal offence. The Committee believes that this approach strikes the right balance between identifying and helping victims of forced marriage and overcoming the concerns about criminalising family members. It believes that this will act as a strong deterrent to perpetrators of forced marriage in an effort to successfully rid Scotland of this abhorrent activity.

159. In light of concerns expressed in evidence, the Committee calls on the Scottish Government to provide greater clarity on how the reporting and notification procedure for acting upon a breach of an FMPO will operate, particularly regarding who will have the authority to report the breach of an FMPO.

160. The Committee is persuaded by the arguments put forward by witnesses, including ACPOS, for the Bill to be consistent with other legislation by placing a power of arrest on the face of the Bill. It recommends that the Scottish Government should lodge an amendment in this regard.

Section 10: Power to apply Part 1 to civil partnerships

161. Section 10 of the Bill would enable Part 1 of the Bill to be applied, by order, to civil partnerships. According to the Policy Memorandum, this approach would enable Scottish Ministers, if required to do so, to react quickly subject to Parliamentary approval, to make equivalent provision for civil partnerships.

162. It also states that, although respondents to the Scottish Government’s consultation were overwhelmingly in favour of making provision for this in the Bill, there is no evidence at present to show that forced civil partnerships are a problem.128

163. John Fotheringham of the Law Society of Scotland told the Committee that, as a matter of principle, marriage and civil partnerships should be treated the same. He explained why he believed it was important that the issue of civil partnership was covered in the Bill—

“If we have good, strong and effective forced marriage provision and forced civil partnerships are not covered in the bill, those who wish to abuse the system will simply leap on forced civil partnerships. If the issue is about a visa or passport, there must be cover on both sides.”129

164. The Committee explored with witnesses whether making this power available through secondary legislation was the correct approach or whether the power should be included on the face of the Bill.

165. Witnesses told the Committee that they were not aware of any instances of forced civil partnerships and that the approach taken in the Bill was appropriate. The FMU also told the Committee that they were not aware of a FMPO being issued in the context of a forced civil partnership under the UK Act.130

166. The Committee acknowledges the evidence it received which suggests that there have been no forced civil partnerships in Scotland, or in the rest of the UK. However, it welcomes provisions in relation to civil partnerships, and supports the order-making power at Section 10.

Sections 11-13: Supplementary

Guidance and training

167. Section 11 of the Bill states that Scottish Ministers may issue guidance on the effect of the Bill or on other matters relating to forced marriage.

168. The majority of respondents to the Committee’s consultation supported the creation of statutory guidance stating that it was vital in order to maximise the reach and impact of the Bill. The EHRC told the Committee—

“Legislation is an important and laudable step towards tackling the issue of forced marriage in modern-day Scotland. But it must be backed-up by effective implementation comprised of robust monitoring, training and guidance.”131

169. Assistant Chief Constable Iain Livingstone of ACPOS stated that statutory guidance is needed “because the logistical, mechanical process is critical to ensuring that the system works properly.”132

170. Support agencies welcomed the reference to guidance in the Bill, however they believed there should be a stronger commitment to issuing this and called for section 11 to state that the Scottish Ministers “will” rather than “may” issue guidance. The joint submission from Scottish Women’s Aid, Shakti Women’s Aid and Hemat Gryffe Women’s Aid stated that it was “absolutely crucial to both the implementation and success of the Orders.”133

171. In response, the Minister for Housing and Communities agreed and indicated that the Scottish Government would lodge an amendment to Section 11 in this regard—

“The bill says that we ‘may’ issue guidance. I make absolutely clear that we will issue guidance. At stage 2, I will lodge an amendment to change ’may’ to ‘will’ so that there is no dubiety about whether we will bring forward guidance, which will have statutory status.”134

172. During the Committee’s consideration of the Bill, witnesses commented on what the guidance should contain and who it should be aimed at.

173. Suzelle Dickson of the FMU explained that, in relation to the UK Act, guidance was issued on the day the Act came into force. The guidance was directed at all chief executives, directors and senior managers within all public agencies responsible for safeguarding children and adults. The guidance explained that organisations needed to have a framework in place so that they could respond to forced marriage. As a complement to statutory guidance, the FMU developed practice guidelines that set out what step-by-step actions agencies should take.135

174. In Scotland, the Minister said that the Government would consult on the guidance and therefore it would not be issued immediately—

“I make categorically clear that we intend to commence the bill the minute that it receives royal assent and not to wait to implement it until we have the guidance. I do not want there to be a gap because we are waiting for guidance—we want to start to implement the bill right away […] If the bill receives royal assent around March or April, I hope that we can have guidance in place well before the end of the calendar year 2011.”136

175. Louise Johnson of Scottish Women’s Aid believed that the guidance should not just be about the legislation but about wider issues in relation to forced marriage. She also believed that there was a particular need for training of those people who will be designated relevant third parties.137

176. Assistant Chief Constable Iain Livingston of ACPOS agreed that training was vital as—

“The victim might not know that they need advice on forced marriage, so the training must be integrated with the work that we are doing on violence against women, violence in society, domestic abuse, domestic violence, public protection and child protection.”138

177. John Fotheringham of the Law Society of Scotland also stressed the need for the judiciary and the courts to have guidance and support available—

“There are no judges or sheriffs in Scotland who will come across many such cases; no one will build up a long course of expertise in forced marriage. When the issue comes up, it will come up suddenly. Sometimes the court will have to make its own order. That requirement will arise suddenly, because it will come up in the context of another case. There will have to be a resource in the form of a named individual or a named body of people that sheriffs and judges can contact, and there will have to be someone in the Crown Office whom the Crown can contact and who has the expertise to act as a resource. Unless sheriffs are well informed on the issue, no one will be able to learn about it sufficiently to react quickly enough.”139

178. In its written submission, the Law Society of Scotland recommended that the Bill be referred to the Judicial Studies Committee140 for consideration and preparation of a briefing note and possible inclusion in training courses for the judiciary.141 The Lord Advocate, told the Committee that she had asked her officials to draw this matter to the attention of the Judicial Services Committee.142

179. The Minister for Housing and Communities told the Committee that the Scottish Government was in discussion with the judiciary on the provision of training to ensure that people are aware of all aspects of forced marriage, including both non-statutory and statutory aspects.143

180. The importance of raising awareness of forced marriage was raised in evidence by many witnesses. The Committee notes that the Policy Memorandum discusses this issue alongside the issuing of guidance, and indicates that the Scottish Government will work with the members of the Forced Marriage Network and other service providers on raising awareness.

181. A number of responses to the Committee’s consultation specifically mentioned that the health and education sectors have an important role to play in raising awareness. Louise Johnson of Scottish Women’s Aid told the Committee—

“On making everybody aware of the problem, we know that there are existing legal provisions that can deal with it, but people do not know that they exist. They do not know about interdicts and the other orders and that marriages can be nullified. If the bill is to be used to the extent that it should be, we must ensure that everybody knows about it and how to use it.”144

182. This view was supported by John Fotheringham of the Law Society of Scotland who told the Committee—

“Public education matters a great deal. There is no point in having a remedy if people do not know about it. […] If people—not only potential victims, but their families, teachers, social workers and local police officers—do not know about the legislation and what they can do, they must be made fully aware of it. The more it is known about, the more the culture against forced marriages will be strengthened.”145

183. Support agencies emphasised that the work on awareness raising should not just encompass minority ethnic communities, but the full range of organisations working with and supporting communities.146 Smina Akhtar of Amina Muslim Women’s Resource Centre told the Committee that work needed to be done directly in communities. She considered that potential victims need to feel empowered to overcome difficulties in reporting forced marriage and that potential perpetrators need to be shown that what they are doing is wrong and unlawful.147

184. A number of the support agencies who gave evidence, referred to work they have been doing in schools to raise awareness of forced marriage and Smina Akhtar referred to a workshop that Amina would be holding with women in Pollokshields in Glasgow, which has a high Muslim Black and Minority Ethnic population, to explore their thinking around forced marriage.148

185. The Minister for Housing and Communities acknowledged the importance of awareness raising and training in order to support the implementation of the Bill—

“There is clearly a training requirement across a number of agencies, which is why we have an interagency, multi-agency task force looking at the issues.

We will implement on-going training and awareness programmes. I do not believe that subjects such as this require just a one-off awareness campaign. It is an on-going process and people need to be continually reminded about the issue and about the options that are available to people who are under duress to engage in forced marriages. We will put together an awareness programme, which will, clearly, need to be in a number of languages to be effective.”149

186. The Minister also supported the view put forward by witnesses that schools can play an important role in raising awareness. He told the Committee that an awareness programme that was specifically directed at the school population was crucial—

“It is very important to have one of our awareness programmes specifically directed at the school population, because we want people who are growing up in Scotland to be aware that forced marriage is illegal and to be aware of their rights so that they know, if they become a potential victim, that there is recourse to law to stop it happening and there are support mechanisms out there for them, both before going to court and after having been to court. An awareness programme that is specifically directed at the school population is crucial.”150

187. The Committee supports the provisions at Section 11 of the Bill which provide for statutory guidance on the Bill to be published. It welcomes the commitment made by the Minister for Housing and Communities to lodge an amendment which will ensure that the Scottish Government “will” rather than “may” issue guidance.

188. The Committee acknowledges that whilst this legislation is an important step in tackling the issue of forced marriage in Scotland, it must be supplemented by guidance and training for a wide range of people who will be involved in implementing and using the legislation, including victims, third parties, schools, health services, victim support agencies, the police and the judiciary.

189. The Committee recognises the merit in commencing the Bill as soon as it receives Royal Assent. The Committee also recognises the merits of the requirement to consult on the guidance before it is issued. However, the issuing of guidance is critical to ensuring that the legislation works effectively, therefore the Committee recommends that this be issued as quickly as possible following the Bill coming into force.

Protection of existing assistance and civil legislation

190. Section 12 of the Bill provides that Part 1 of the Bill does not affect any other protection or assistance already available and lists these.

191. Assistant Chief Constable Iain Livingstone of ACPOS questioned the value of Section 12 as the legislation will be part of a wider suite of statutes, common law and practice that the police will use to address honour based violence.151

192. John Fotheringham of the Law Society of Scotland called for the section to be deleted as he believed that it “does not seem to do anything”.152 In its written submission, the Law Society of Scotland said—

“The sub-committee is not sure what the purpose of this section is. The concept of ‘equitable jurisdiction’ is not used in Scotland. The section may not be necessary in the Scottish context, but if it is to be retained at all the sub-committee would suggest substituting a provision to say that ‘the rights conferred by this Act do not prejudice any other action that might be taken at common law or under statute to prevent the occurrence of a forced marriage or any remedies available in respect of such a marriage’.”153

193. The Committee asks the Scottish Government to provide further justification for the inclusion of Section 12 in the Bill. If the Government is minded to retain this section, the Committee invites it to consider the amendment suggested by the Law Society of Scotland. Its suggested amendment would substitute a provision which provides that the rights conferred by the Act do not prejudice any other action that might be taken at common law or under statute to prevent the occurrence of a forced marriage or any remedies available in respect of such a marriage.

Part 2

194. Part 2 of the Bill makes provision for jurisdictional rules applying in the sheriff courts in relation to declarators of nullity of marriage. These rules parallel those that already apply in the Court of Session. Uncertainty surrounding the jurisdictional rules applying in the sheriff court was seen as a barrier to individuals, including victims of forced marriage, accessing this particular civil remedy. Part 2 clarifies the circumstances in which individuals, including victims of a forced marriage, can seek declaration from the sheriff court to make a marriage void.

195. The Minister for Housing and Communities explained why the Scottish Government wanted to grant this power to the sheriff court—

“The area in which we have differed slightly on the basis of experience south of the border is in making it easier to annul a forced marriage, particularly by allowing cases to be put to a lower court rather than their always having to be taken to the Court of Session; the sheriff court is easier to access.”154

Interaction between civil law and religious practice

196. A concern was raised by some witnesses that a decree of divorce or declarator of nullity granted by a Scottish civil court cannot end a marriage according to the provisions of relevant religious practice. Until the appropriate action is taken under religious practice to end a forced marriage, an individual may be regarded as still being married even if it was declared a forced marriage and annulled in the civil courts.

197. Smina Akhtar of Amina Muslim Women’s Resource Centre told the Committee that, under Islam, neither a woman nor a man can remarry until the ceremony has been nullified by the Islamic Sharia Council in the UK.155

198. The Council of British Pakistanis (Scotland) and the Scottish Council of Jewish Communities recommended that statutory guidance should advise victims and their legal advisors to consult with relevant religious authorities in order to ensure that a victim is freed from all aspects of a forced marriage.156

199. In response to these concerns, the Minister for Housing and Communities told the Committee—

“Interfering in the governance of any particular religion or church has never been part of Scots law, and that will be no different as a result of the bill. We will not intervene legally in the governance of religious organisations. That said, we have had extensive discussions with religious leaders, all of whom supported the principles of the bill and all of whom assured us that, in its practicalities, their religion would respect legal decisions on nullifications.”157

200. The Committee welcomes Part 2 of the Bill and the provision for jurisdictional rules applying in the sheriff courts in relation to declarators of nullity of marriage, as this will help remove barriers to access.

201. The Committee acknowledges that the Bill cannot make changes to religious and governance practices. However, the Committee calls on the Scottish Government to continue to engage with relevant religious authorities on the issue of nullification of forced marriages and to raise awareness of the Bill among all religious organisations and communities.

Part 3

202. Part 3 of the Bill sets out provisions relating to subordinate legislation and Crown application.

Subordinate legislation

203. The Parliament’s Standing Orders Rule 9.4A provides that, where an Executive Bill confers powers to make subordinate legislation, a Delegated Powers Memorandum (DPM) must be provided.

204. The Subordinate Legislation Committee (SLC) considered the DPM on 23 November and 7 December 2010 and a copy of its report is provided in Annexe B.

205. The Committee notes that whilst the SLC determined that it did not need to draw the attention of the Parliament to the delegated powers in sections 10(1), 11, 15(1) and 18(2), it did make a recommendation in relation to the power at section 3(7)(c).

206. The Subordinate Legislation Committee recommends that the power at section 3(7)(c), to specify a person, or a person falling within a description of persons, as a relevant third party, should be amended so that it is subject to a requirement on Ministers to consult the Lord President prior to making an order. The Committee agrees with this recommendation.

Crown Application

207. Section 17 of the Bill deals with situations where the Crown might breach a forced marriage protection order and be declared to have acted unlawfully.

208. It was suggested in evidence by John Fotheringham of the Law Society of Scotland that such a situation may arise where the immigration status of a victim of forced marriage makes the Crown’s actions in relation to an FMPO unlawful.158

209. In a written response on this point, the Lord Advocate told the Committee—

“In relation to the impact on the Crown, section 17 of the Bill protects the Crown from criminal liability if it were to breach a forced marriage protection order, but allows a public body to seek a declaration from the Court of Session that the Crown has acted unlawfully. I do not anticipate practical difficulties in the application of these provisions to the Crown Office and Procurator Fiscal Service.”159

210. This touched upon another issue raised during the Committee’s consideration of the Bill, which is that if a person’s marriage is deemed to be false, this may affect their eligibility to live in the UK. If a person is not eligible to stay in the UK, then they will have no recourse to public funds to apply for indefinite leave to remain.

211. Louise Johnson of Scottish Women’s Aid told the Committee that she was aware of instances whereby women, who have had to leave their partners before the end of the two year probationary period, did not have access to public funds to help fight their case. She hoped that an FMPO would assist a woman’s application to stay in the country with indefinite leave to remain as a result of domestic abuse.160

212. Suzelle Dickson of the FMU was aware of such cases and agreed that if a forced marriage breaks down due to domestic violence, a person “could be eligible to apply under the domestic violence rules to get indefinite leave to remain in the UK”. She added that the UK Border Agency is looking for a long term solution to support people who come to the UK and whose marriage breaks down due to domestic violence, adding “we hope that we can ensure that forced marriage is very much part of that”.161

213. The EHRC's written submission called for consideration to be given to examining the interaction that immigration status will have on the treatment of an applicant following an FMPO being made—

“It is the Commission’s belief that individuals who have been forced into marriage should be treated sensitively and viewed in terms of victims of human rights abuse, rather than solely in terms of their immigration status.”162

214. The Committee acknowledges that a situation may arise where the immigration status of a victim of a forced marriage makes the Crown’s actions in relation to an FMPO unlawful. The Committee notes the Lord Advocate’s response that section 17 protects the Crown from criminal liability if it were to breach an FMPO, but allows a public body to seek a declaration from the Court of Session that the Crown has acted unlawfully. It further notes that the Lord Advocate does not anticipate practical difficulties in the application of these provisions to the Crown Office and the Procurator Fiscal Service.

215. The Committee asks the Scottish Government to clarify the position in relation to the interaction that immigration status will have on the treatment of an applicant following an FMPO being made.

Compatibility with other legislation

216. The Committee received evidence regarding the prevalence of forced marriage amongst children. The FMU told the Committee that it had dealt with a number of cases in which the victim had been 16, which is the legal minimum age for getting married in Scotland. In 2009, 37.5% of cases assisted by the FMU involved minors (people under 18) and 16.5% involved under 16s.163

217. Both Shakti Women’s Aid and Hemat Gryffe Women’s Aid spoke of instances of children who had been forced to marry at 13 and 14 and then have children. Girijamba Polubothu of Shakti Women’s Aid provided an example of a particularly disturbing case of forced marriage which had involved an eight year old child—

“A few years ago, I dealt with a forced marriage case in which the adult daughter fled a forced marriage. As a result of that, the family took all three girls abroad and somehow blackmailed the young woman who had fled the forced marriage into getting married abroad. The parents then got the other two girls, who were under 13—one was aged eight; I cannot remember the other's age—engaged to two of their cousins, to be married later. I do not know at what stage they got married, but they were at primary school here in Edinburgh when they got engaged.”164

218. Concerns were also raised by witnesses that the linkages between child protection proceedings under the Bill and the Children’s Hearing System were not as clear as they could be. The submission received from the Scottish Children’s Reporter referred to the Children Hearings (Scotland) Bill165 which had been amended at Stage 2 to include forced marriage as a specific ground for referral to a Children’s Hearing Panel—

“It is important for the necessary linkages between these two pieces of legislation to be made so that children who are either being forced into marriage themselves, or who may be at risk due to a parent or sibling being so forced, can be fully protected and so that there is no confusion over which legislation should apply in which circumstances.”166

219. The Committee discussed with the Minister for Housing and Communities, the need for the grounds of referral in the Children’s Hearings (Scotland) Act to be modified by a Scottish Statutory Instrument, because there is currently no definition of a forced marriage in that Act. The Minister sought to assure the Committee that this was in hand—

“Obviously, we have taken measures to clarify any consequences of the bill for any other legislation. The SSI to which you refer is already within our power in existing legislation.”167

220. The Committee also sought assurances from the Minister about how a Child Protection Order and an FMPO would work together and how existing legislation regarding child protection would be compatible with the Bill. In response, he said that they should be complementary to each other—

“Let us take the example of the existing legislation on how children are treated in Scotland. The law is very clear that a person cannot be married if they are under 16 years of age. That applies to forced marriages in the same way that it applies to every other circumstance in Scotland. Similarly, a child protection order, irrespective of whether there is an issue about forced marriage in the family, will be pursued and implemented accordingly.”168

221. The Committee accepts the assurances provided by the Minister that the Scottish Government will ensure that provisions in the Bill are compatible with the Children Hearings (Scotland) Act 2011 and other relevant legislation.

Financial Memorandum

222. Rule 9.3.2 of Standing Orders requires a Financial Memorandum to be provided to accompany a Bill when it is introduced. The Financial Memorandum must “set out the best estimates of the administrative, compliance and other costs to which the provision of the Bill would give rise, best estimates of the timescales over which such costs would be expected to arise, and an indication of the margins of uncertainty in such estimates.”

223. The Finance Committee considered the Financial Memorandum and agreed to undertake level 1 scrutiny, which involves sending a standard questionnaire to affected bodies. The Finance Committee sought written evidence on the Financial Memorandum but did not take oral evidence or publish a report. It received three written submission from: Orkney Islands Council; Scottish Court Service and the Scottish Legal Aid Board.

224. The Finance Committee wrote to the Equal Opportunities Committee on 8 December 2010 and a letter is provided at Annexe C.

FINAL RECOMMENDATION AND CONCLUSION

The Committee recommends that the Parliament agrees to the general principles of the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill.

ANNEXE A: EXTRACTS FROM THE MINUTES OF THE EQUAL OPPORTUNITIES COMMITTEE

18th Meeting, 2010 (Session 3), Tuesday 26 October 2010

2. Decision on taking business in private: The Committee agreed to take item 4 in private.

4. Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill (in private): The Committee considered and agreed its approach to the scrutiny of the Bill at Stage 1.

21st Meeting, 2010 (Session 3), Tuesday 23 November 2010

Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Louise Johnson, National Worker, Scottish Women's Aid;

Claire Platts, Senior Solicitor, Ethnic Minorities Law Centre;

Iain Livingstone, Assistant Chief Constable, Lothian and Borders Police, ACPOS;

John Fotheringham, Vice-Convener, Family Law Sub-Committee, The Law Society of Scotland;

Tanveer Parnez, Director of National Development, BEMIS;

Huma Awan, Racial Equality Officer, Council of British Pakistanis (Scotland).

23rd Meeting, 2010 (Session 3), Tuesday 7 December 2010

Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill: The Committee deferred evidence taking until a future meeting.

24th Meeting, 2010 (Session 3), Tuesday 14 December 2010

Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Suzelle Dickson, Joint Head, Forced Marriage Unit, UK Ministry of Justice;

Girijamba Polubothu, Manager, Shakti Women’s Aid;

Smina Aktar, Director, AMINA Muslim Women’s Resource Centre;

Rajani Pandher, Chief Support Worker, Hemat Gryffe Women's Aid;

Laura McCrum, Development Officer, Saheliya;

Alex Neil MSP, Minister for Housing and Communities;

Lesley Irving, Team Leader, Gender Equality and Violence Against Women;

Eileen Flanagan, Policy Manager, Gender Equality and Violence Against Women and;

John St Clair, Solicitor, Scottish Government.

1st Meeting, 2011 (Session 3) Tuesday 18 January 2011

1. Decision on taking business in private: The Committee decided to take items 2 and 3 in private; and to consider its draft report on the Forced Marriage etc. (Protection and Jursidiction) (Scotland) Bill in private at future meetings.

2. Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill (in private): The Committee considered a draft Stage 1 report.

2nd Meeting, 2011 (Session 3) Tuesday 25 January 2011

Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill (in private): The Committee agreed its draft Stage 1 report.

ANNEXE B: SUBORDINATE LEGISLATION COMMITTEE REPORT

Subordinate Legislation Committee

67th Report, 2010 (Session 3)

Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill

The Committee reports to the Parliament as follows—

introduction

1. At its meetings on 23 November and 7 December 2010, the Subordinate Legislation Committee considered the delegated powers provisions in the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill at Stage 1. The Committee submits this report to the Equal Opportunities Committee as the lead committee for the Bill under Rule 9.6.2 of Standing Orders.

overview of the BILL

2. The Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill (“the Bill”) was introduced in the Parliament on 29 September 2010 by the Cabinet Secretary for Health and Wellbeing, Nicola Sturgeon MSP.

3. The Scottish Government provided the Parliament with a memorandum on the delegated powers provisions in the Bill (“the DPM”).169

4. Correspondence between the Committee and the Scottish Government is reproduced in the Annexe.

5. The Committee determined that it did not need to draw the attention of the Parliament to the delegated powers in sections: 10(1), 11, 15(1) and 18(2).

Delegated powers provisions

Section 3(7)(c) - Power to specify a person, or a person falling within a description of persons, as a relevant third party

Power conferred on: Scottish Ministers
Power exercisable by: Order
Parliamentary procedure: Negative

6. In addition to protected persons only “relevant third parties” have an automatic right to apply for a forced marriage protection order (“FMPO”). Other persons need to apply for the permission of the court before they are entitled to do so. Local authorities and the Lord Advocate are specified in the Bill as relevant third parties. Section 3(7)(c) enables the Scottish Ministers to specify a person, or person falling within a description of persons, as additional relevant third parties who would not need the court’s permission to apply for a FMPO.

7. The DPM advises that in the future it may be felt appropriate to specify representative voluntary sector organisations as relevant third parties. It is considered it would be preferable to be able to do so using subordinate legislation rather than awaiting primary legislation. The Committee accepts that some flexibility may be required as the system beds in. The DPM states that “since any specification made under this section would remove the discretion of the court to refuse to consider applications from third parties specified, it is thought appropriate that any such specification is subject to annulment.”.

8. The Committee considered that since restricting the right to apply for a FMPO is clearly considered a necessary part of the regime, alteration of that aspect of the regime should properly involve scrutiny by the Parliament as opposed to no scrutiny procedure at all.

9. The question is therefore whether negative procedure is sufficient as opposed to the higher level of scrutiny afforded by affirmative procedure. There is no assessment of the difference between the two in the DPM or as to whether the subject matter of the order is an issue which might have significant practical implications for the operation and/or effectiveness of the FMPO system.

10. The Committee therefore asked the Scottish Government for more information as to why negative procedure is considered the appropriate level of scrutiny before it considered whether it is content with this power.

11. The Government have provided a fuller explanation. Their response indicates that it is thought that the power to add additional third parties with automatic rights to apply for a FMPO would be used only rarely, that the police are perhaps the only candidate for specification and those parties which would be specified by Ministers would only be those to whom the court would be likely to grant permission.

12. The response differs from the DPM in terms of who are considered the most likely candidates as additional third parties - which suggests to the Committee that policy on this matter is still evolving. However, having considered the further information provided, the Committee agrees that negative procedure would be sufficient scrutiny were the Parliament clear that the courts had been consulted on the proposed change.

13. The Committee therefore accepts negative procedure but recommends that the Government amend the power so that it is subject to a requirement on Ministers to consult the Lord President prior to making an order.

Section 11 - Guidance

14. Section 11 permits the Scottish Ministers to issue guidance about the effect of the Bill or forced marriage generally to persons they consider appropriate (other than a court or tribunal). The Committee did not consider that this guidance should take the form of subordinate legislation but sought the views of the Scottish Government on whether the guidance should be laid before the Parliament in the interests of transparency and so that the Parliament should be aware of its terms.

15. The Scottish Government considers that given the limited scope and effect of the guidance in this case, and since separate guidance may be issued from time to time for different purposes, it was not thought appropriate to require the guidance to be laid before the Parliament. While it is not a statutory requirement, as a matter of practice, the Scottish Government intends to submit a final draft of the first substantive guidance to the Equal Opportunities Committee for consideration prior to publication.

16. The Committee is content with this response.

ANNEXE TO SUBORDINATE LEGISLATION COMMITTEE REPORT

Correspondence with the Scottish Government

In the letter the Scottish Government was asked for a fuller explanation as to why it has chosen negative rather than affirmative procedure in relation to the power under section 3(7) (c) and to explain whether it considers that guidance made under section 11 should be laid before the Scottish Parliament in the interests of transparency and in order that the Parliament is aware of its terms.

Section 3(7) (c) - Power to specify a person, or a person falling within a description of persons, as a relevant third party

Ministers consider it important to get the balance right in setting out who has an automatic right to apply for an order as opposed to requiring leave of the court. Those third parties having the automatic right are those who are likely to be granted leave by the court as a matter of course. Other third parties will still need to satisfy the court that it is appropriate for them to be allowed to apply, having regard to all the circumstances of the particular case.

The power in section 3(7)(c) to add to the list of third parties having the automatic right to apply is likely to be used only rarely and, in practice, it is envisaged that perhaps only the police would be a candidate. Any such proposed change will depend on how often a third party applies and whether they are invariably granted leave.

Since the proposed change may be non-controversial, it was not thought appropriate to require a debate on every occasion. Members will either agree or disagree with the proposal and, if they disagree, negative procedure will allow Members to force a debate as appropriate.

Section 11 – Guidance

Guidance may be provided under section 11 on any matter relating to forced marriage but the main focus will be to facilitate the implementation of the provisions in Part 1. There is a statutory obligation on those exercising public functions to have regard to it, but it was not thought appropriate to have it laid before Parliament.

The circumstances in which it may also be appropriate to require guidance to be laid before the Scottish Parliament will depend on its scope and effect. The Licensing (Scotland) Act 2005, for example, required the first set of draft guidance to Licensing Boards to be laid before, but also approved by resolution of, the Scottish Parliament.

Where the effect of the guidance is less far-reaching but still critical to the effective delivery of the relevant provisions, it may be appropriate to require a copy to be laid before Parliament after it is issued. See, for example, section 31 (duties to provide information) of the Public Services Reform (Scotland) Act 2010. In other cases, it is rare to require guidance to be laid before Parliament. See, for example, section 113 (guidance on user focus) and section 114 (duty of cooperation) of the same Act.

Given the limited scope and effect of guidance under section 11, and the fact that separate guidance may be issued from time to time and for different purposes, it is not thought to be appropriate to require such guidance to be laid before the Scottish Parliament. However, Ministers would propose to submit a final draft of the first such substantive guidance to the Equal Opportunities Committee for consideration, once it has gone through the formal public consultation process, prior to its publication and wider dissemination.

ANNEXE C: FINANCE COMMITTEE REPORT

Finance Committee

Convener: Andrew Welsh MSP

Margaret Mitchell MSP
Convener, Equal Opportunities Committee
Room T3.60
The Scottish Parliament
EDINBURGH
EH99 1SP

Direct Tel: (0131) 348 5451
(RNID Typetalk calls welcome)
Fax: (0131) 348 5252
(Central) Textphone: (0131) 348 5415
finance.committee@scottish.parliament.uk

8 December 2010

Dear Margaret

Finance Committee – consideration of the Financial Memorandum of the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill

As you are aware, the Finance Committee examines the financial implications of all legislation, through the scrutiny of Financial Memoranda. The Committee agreed to adopt level one scrutiny in relation to the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill. Applying this level of scrutiny means that the Committee does not take oral evidence or produce a report, but it does seek written evidence from affected organisations.

The Committee received three submissions on the FM, which are attached to this letter. If you have any questions about the Committee’s scrutiny of the FM, please contact the clerks to the Committee via the contact details above.

Yours sincerely

Andrew Welsh MSP,
Convener

Submission from Orkney Islands Council

We consider the Forced Marriage Etc (Protection and Jurisdiction) (Scotland) Bill will have no financial impact whatsoever.

Gareth Waterson
Director of Finance and Housing

Submission from the Scottish Court Service

Consultation

1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?

The Scottish Court Service did not participate in the consultation exercise. However, we have liaised with Scottish Government on the financial implications arising from the Bill.

2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

Our views on the potential costs arising from the Bill are reflected in the Financial Memorandum.

3. Did you have sufficient time to contribute to the consultation exercise?

Yes.

Costs

4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

The Financial Memorandum accurately reflects the financial implications for the Scottish Court Service.

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

Provided that the increases in civil applications and criminal prosecutions are within the volumes projected in the Financial Memorandum, then we would expect that the Scottish Court Service would be in a position to absorb the additional work.

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

We have no reason to doubt the projections made in the Financial Memorandum.

Wider Issues

7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

We are unaware of any related wider policy initiative.

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

We are unaware of any further related costs.

Submission from the Scottish Legal Aid Board

Consultation

1. Did you take part in the consultation exercise for the Bill, if applicable, and if so did you comment on the financial assumptions made?

The Board provided initial information on costs and also a written response to the consultation issued on behalf of the Equal Opportunities Committee.

2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

Yes- it reflect the Board’s comments.

3. Did you have sufficient time to contribute to the consultation exercise?

Yes.

Costs

4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

The potential costs have been accurately reflected.

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

The Board is content to meet the costs.

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

Yes there are no problems with this aspect.

Wider Issues

7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

Not applicable

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

The Board does not envisage any costs beyond those detailed in its responses.


Footnotes:

1 Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill. Available at:
http://www.scottish.parliament.uk/s3/bills/53-forcedMarriage/b53s3-introd.pdf

2 Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill. Policy Memorandum. Available at:
http://www.scottish.parliament.uk/s3/bills/53-forcedMarriage/b53s3-introd-pm.pdf

3 Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill. Explanatory Notes. Available at:
http://www.scottish.parliament.uk/s3/bills/53-forcedMarriage/b53s3-introd-en.pdf

4 Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill. Financial Memorandum. Available at:
http://www.scottish.parliament.uk/s3/bills/53-forcedMarriage/b53s3-introd-en.pdf

5 Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill. Delegated Powers Memorandum. Available at:  http://www.scottish.parliament.uk/s3/bills/53-forcedMarriage/b53s3-introd-dpm.pdf

6 Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill. Policy Memorandum, paragraph 2. Available at: http://www.scottish.parliament.uk/s3/bills/53-forcedMarriage/b53s3-introd-pm.pdf

7 A joint initiative between the Home Office and the Foreign and Commonwealth Office providing confidential information and assistance service to potential victims of forced marriage across the UK.

8 Forced Marriage Unit, UK Government (2009) Multi-agency practice guidelines: Handling cases of Forced Marriage. Available at: http://www.fco.gov.uk/resources/en/pdf/3849543/forced-marriage-guidelines09.pdf Accessed 10 January 2011] -agency

9 Scottish Government (2008) Forced Marriage: A Civil Remedy? A Consultation Paper. Available at: http://www.scotland.gov.uk/Publications/2008/11/25131845/0 Accessed 10 January 2011

10 Avan, G, Bakshi, N., and Chaudry, F. (2005) Right to choose? Research into domestic abuse and forced marriages within black and minority ethnic communities in Glasgow. Glasgow City Council, Strathclyde Police and Hemat Gryffe. Available at: http://www.glasgow.gov.uk/NR/rdonlyres/C775232F-C359-467F-8B35-1A9D40120130/0/RighttoChoose.pdfAccessed 10 January 2011

11 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2171.

12 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2175.

13 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2282.

14 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2302.

15 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2176.

16 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2300.

17 A Black and Minority Ethnic Women's mental health organisation.

18 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2303.

19 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2174.

20 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2176.

21 Scottish Government (2008) Forced Marriage: A Civil Remedy? A Consultation Paper. Available at: http://www.scotland.gov.uk/Publications/2008/11/25131845/0 Accessed 10 January 2011].

22 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2170.

23 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2286.

24 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2285.

25 Foreign and Commonwealth Office/Home Office/Scottish Executive (2005) Forced Marriage: A Wrong not a Right. A joint Foreign and Commonwealth Office, Home Office and Scottish Executive consultation. Available at: http://www.fco.gov.uk/resources/en/pdf/pdf14/fco_pdfforcedmarriageconsultAccessed 10 January 2011].

26 Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill. Policy Memorandum, paragraph 30. Available at: http://www.scottish.parliament.uk/s3/bills/53-forcedMarriage/b53s3-introd-pm.pdf

27 Ministry of Justice (2009) One year on: the initial impact of the Forced Marriage (Civil Protection Act 2007 in its first year of operation. http://www.justice.gov.uk/one-year-on-forced-marriage-act.pdf. Accessed 10 January 2011

28 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2293.

29 An interdict is a court remedy forbidding the commencement or continuation of an act or course of action by a named individual.

30 Scottish Parliament Information Centre (2010) Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill. SPICe Briefing 10/79. Available at: http://www.scottish.parliament.uk/business/research/briefings-10/SB10-79.pdf Accessed 10 January 2011

31 Scottish Government (2008) Forced Marriage: A Civil Remedy? A Consultation Paper. Available at: http://www.scotland.gov.uk/Publications/2008/11/25131845/0 Accessed 10 January 2011

32 Reid Howie Associates (2009) Consultation on Forced Marriage; a civil remedy: analysis of responses, Scottish Government. Available at: http://www.scotland.gov.uk/Publications/2009/06/11141824/0 Accessed 10 January 2011

33 Reid Howie Associates (2009) Consultation on Forced Marriage; a civil remedy: analysis of responses, Scottish Government. Available at: http://www.scotland.gov.uk/Publications/2009/06/11141824/0 Accessed 10 January 2011

34 Reid Howie Associates (2009) Consultation on Forced Marriage; a civil remedy: analysis of responses, Scottish Government. Available at: http://www.scotland.gov.uk/Publications/2009/06/11141824/0 Accessed 10 January 2011].

35 Scottish Parliament Information Centre (2010) Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill. SPICe Briefing 10/79. Available at: http://www.scottish.parliament.uk/business/research/briefings-10/SB10-79.pdf Accessed 10 January 2011

36 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2297.

37 Forced Marriage Unit. Letter to the Equal Opportunities Committee 23 December 2010. Figures for 2010 are for January – November.

38 Forced Marriage Unit. Letter to the Equal Opportunities Committee. 23 December 2010.

39 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2284.

40 Forced Marriage Unit (2010) General Forced Marriage Statistics (unpublished) in Scottish Parliament Information Centre (2010) Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill. SPICe Briefing 10/79. Available at: http://www.scottish.parliament.uk/business/research/briefings-10/SB10-79.pdf Accessed 10 January 2011

41 Forced Marriage Unit (2010) General Forced Marriage Statistics (unpublished) in Scottish Parliament Information Centre (2010) Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill. SPICe Briefing 10/79. Available at: http://www.scottish.parliament.uk/business/research/briefings-10/SB10-79.pdf Accessed 10 January 2011

42 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2299.

43 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2298.

44 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2298.

45 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2175.

46 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2172.

47 In 2005, the Scottish Government established the Forced Marriage Network to bring together the key statutory and voluntary agencies in Scotland to share expertise and knowledge and progress work to tackle forced marriage.

48 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2345.

49 Scottish Council of Jewish Communities. Written submission to the Equal Opportunities Committee.

50 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2175.

51 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2305.

52 Amina Muslim Women’s Resource Centre. Written submission to the Equal Opportunities Committee.

53 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2298.

54 Muslim Council of Scotland. Written submission to the Equal Opportunities Committee.

55 BEMIS. Written submission to the Equal Opportunities Committee.

56 BEMIS. Written submission to the Equal Opportunities Committee.

57 Scottish Parliament Equal Opportunities Committee. Official Report,14 December 2010, Col 2306.

58 Scottish Parliament Equal Opportunities Committee. Official Report,14 December 2010, Col 2306.

59 Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill. Explanatory Notes , paragraph 6. Available at: http://www.scottish.parliament.uk/s3/bills/53-forcedMarriage/b53s3-introd-en.pdf

60 Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill. Policy Memorandum, paragraph 4-5. Available at: http://www.scottish.parliament.uk/s3/bills/53-forcedMarriage/b53s3-introd-pm.pdf

61 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2286.

62 Glasgow Community and Safety Services. Written submission to the Equal Opportunities Committee.

63 EHRC. Written submission to the Equal Opportunities Committee.

64 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2180.

65 Scottish Independent Advocacy Alliance. Written submission to the Equal Opportunities Committee.

66 EHRC. Written submission to the Equal Opportunities Committee.

67 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2192.

68 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2191.

69 ACPOS. Written submission to the Equal Opportunities Committee.

70 Scottish Women’s Aid, Shakti Women’s Aid and Hemat Gryffe Women’s Aid. Joint written submission to the Equal Opportunities Committee.

71 Scottish Parliament Equal Opportunities Committee. Official Report,14 December 2010, Col 2326.

72 Scottish Parliament Equal Opportunities Committee. Official Report,14 December 2010, Col 2326.

73 Scottish Parliament Equal Opportunities Committee. Official Report,14 December 2010, Col 2326.

74 Scottish Parliament Equal Opportunities Committee. Official Report,14 December 2010, Col 2311.

75 Scottish Women’s Convention. Written submission to the Equal Opportunities Committee.

78 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2193.

79 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2316.

80 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2317.

81 Scottish Government. Letter to the Equal Opportunities Committee 23 December 2010.

82 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2288.

83 Professor E B Crawford, Professor of International Private Law and Professor J M Carruthers, Professor of Private Law, University of Glasgow . Written submission to the Equal Opportunities Committee.

84 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2316.

85 Scottish Government. Letter to the Equal Opportunities Committee 23 December 2010.

86 Scottish Women’s Aid, Shakti Women’s Aid and Hemat Gryffe Women’s Aid. Joint written submission to the Equal Opportunities Committee.

87 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2189.

88 Law Society of Scotland. Written submission to the Equal Opportunities Committee.

89 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2289.

90 Scottish Women’s Aid, Shakti Women’s Aid and Hemat Gryffe Women’s Aid. Joint written submission to the Equal Opportunities Committee.

91 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2327.

92 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2183.

93 FMU. Written submission to the Equal Opportunities Committee.

94 South Lanarkshire Council. Written submission to the Equal Opportunities Committee.

95 Scottish Borders Violence Against Women Partnership. Written submission to the Equal Opportunities Committee.

96 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2194.

97 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2194.

98 Scottish Women’s Aid, Shakti Women’s Aid and Hemat Gryffe Women’s Aid. Joint written submission to the Equal Opportunities Committee.

99 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2194.

100 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2318.

101 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2319.

102 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2194.

103 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2321.

104 Scottish Women’s Aid, Shakti Women’s Aid and Hemat Gryffe Women’s Aid. Joint written submission to the Equal Opportunities Committee.

105 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2322.

106 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2289.

107 Shakti Women’s Aid. Written submission to the Equal Opportunities Committee.

108 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2198.

109 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2321.

110 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2329.

111 Scottish Government. Letter to the Equal Opportunities Committee 23 December 2010.

112 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col. 2328.

113 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2328.

114 Scottish Parliament Information Centre (2010) Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill. SPICe Briefing 10/79. Available at: http://www.scottish.parliament.uk/business/research/briefings-10/SB10-79.pdf Accessed 10 January 2011

115 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2290.

116 Reid Howie Associates (2009) Consultation on Forced Marriage; a civil remedy: analysis of responses, Scottish Government. Available at: http://www.scotland.gov.uk/Publications/2009/06/11141824/0 Accessed 10 January 2011

117 Glasgow Community and Safety Services. Written submission to the Equal Opportunities Committee.

118 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2307.

119 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2192.

120 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2191.

122 EHRC. Written submission to the Equal Opportunities Committee.

123 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2318.

124 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2318.

125 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2192.

126 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2321.

127 FMU. Written submission to the Equal Opportunities Committee.

128 Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Bill. Policy Memorandum , paragraph 20. Available at: http://www.scottish.parliament.uk/s3/bills/53-forcedMarriage/b53s3-introd-en.pdf

129 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2176.

130 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2287.

131 EHRC. Written submission to the Equal Opportunities Committee.

132 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2197.

133 Scottish Women’s Aid, Shakti Women’s Aid and Hemat Gryffe Women’s Aid. Joint written submission to the Equal Opportunities Committee.

134 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2323.

135 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2289.

136 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2323.

137 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2186.

138 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2187.

139 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2187.

140 The Judicial Studies Committee is the body responsible for judicial training in Scotland. The committee runs training courses for the judiciary and issues written material to all judges.

141 Law Society of Scotland. Written submission to the Equal Opportunities Committee.

142 Lord Advocate. Letter to the Equal Opportunities Committee 16 December 2010.

143 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2324.

144 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2177.

145 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2178.

146 Scottish Women’s Aid, Shakti Women’s Aid and Hemat Gryffe Women’s Aid. Joint written submission to the Equal Opportunities Committee.

147 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2305.

148 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2314.

149 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2324.

150 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2324.

151 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2192.

152 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2190.

153 Law Society of Scotland. Written submission to the Equal Opportunities Committee.

154 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2316.

155 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2313.

156 Council of British Pakistanis (Scotland). Written submission to the Equal Opportunities Committee and Scottish Council of Jewish Communities. Written submission to the Equal Opportunities Committee.

157 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2317.

158 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col 2184.

159 Lord Advocate. Letter to the Equal Opportunities Committee 16 December 2010.

160 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col. 2185.

161 Scottish Parliament Equal Opportunities Committee. Official Report, 23 November 2010, Col. 2295.

162 EHRC. Written submission to the Equal Opportunities Committee.

163 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2284.

164 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2309.

165 The submission was received while the Bill was still under scrutiny by the Scottish Parliament. The Children’s Hearing Scotland Bill was passed on 25 November 2010 and received Royal Assent on 6 January 2011. Section 67 of the Act states that grounds for referral to a children hearing panel will now include a child that “is being , or is likely to be, subjected to physical, emotional or other pressure to enter into a marriage or civil partnership, or is, or it likely to become, a member of the same household of such a child.”

166 Scottish Children’s Reporter. Written submission to the Equal Opportunities Committee.

167 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2320.

168 Scottish Parliament Equal Opportunities Committee. Official Report, 14 December 2010, Col 2319.