Forced Marriage (Civil Protection) Bill [HL]

I am grateful to the noble Baroness. I have to say that it is a privilege doing business with her. I will try to give the assurances that she seeks so that she can withdraw Amendment No. 5. I am perfectly comfortable with accepting Amendments Nos. 5A and 12A. I shall say a little about the purpose of the guidance, and shall address the particular point that the noble Baroness makes about the judiciary. As noble Lords may have seen, the Forced Marriage Unit has produced extremely good and helpful guidance and advice on such things as how to distinguish between an arranged marriage and a forced marriage, and what the motives, legal position and aggravating factors might be. Guidance has also been produced on how to keep accurate records and maintain confidentiality, the potential dangers of mediation, and what advice to give if someone has been taken overseas. Noble Lords know how important guidance can be to assist professionals to identify a forced marriage and to help them to take action. Key to this is profession-specific guidance. The noble Baroness, Lady Park, who is no longer in the Room, talked about education. Education professionals need information on how to discuss forced marriage in the context of the curriculum. For the police, there is advice on missing persons. For others, there are practical ways in which we can offer guidance and advice. In practice, this is the kind of guidance that will be issued on a statutory basis if proposed new Section 63Q is enacted. It requires public authorities to take due regard of any guidance produced under it, and we should ensure that it is followed. The Forced Marriage Unit believes that this provision will significantly enable it to promote the importance of its work. It is possible that someone may want to seek a judicial review of a public body for failure to act in relation to enforced marriage which arose from its failure to take account of guidance or from a decision to disregard it. If the guidance were relevant, the court would be able to consider the legality or reasonableness of the decision of the public in the light of that guidance in reaching its decision, because it would be statutory. The noble Baroness, Lady Verma, moved her original Amendment No. 5 because of her concern about the infringement of the independence of the judiciary, saying that it would run contrary to the provisions of the Constitutional Reform Act 2005. That Act places the noble and learned Lord the Lord Chancellor, other Ministers of the Crown and all those with responsibility for matters relating to the judiciary, or otherwise to the administration of justice, under a duty to uphold the continued independence of the judiciary. Provisions in that Act that already make express provision to ensure the independence of the judiciary are relevant to this clause. In particular, paragraph 3 of Schedule 2 to the 2005 Act expressly refers to guidance about the application or interpretation of the law and the making of judicial decisions. The Lord Chief Justice alone may give directions regarding these. It is in no way the intention for guidance issued under this section to be used to influence judicial discretion in determining a case. I am grateful to the noble Baroness for Amendments Nos. 5A and 12A, which seek to put the matter beyond doubt. Amendment No. 5A clarifies that the provision for guidance in new Section 63Q does not permit the noble and learned Lord the Lord Chancellor or the Secretary of State to give guidance to any court or tribunal, while Amendment No. 12A makes the same clarification in respect of guidance which may be issued by the Department of Finance and Personnel in Northern Ireland. The use of the term ““court or tribunal”” in this amendment encapsulates the judiciary and magistrates, and covers the notion of the judge or magistrate making a decision. The use of this term is in line with other statutes and rules where the term ““court”” is defined by reference to the judiciary. For example, the definition of ““court”” in the Family Proceeding Rules 1991, which set out procedures for the county courts and the High Court when considering family proceedings, provides that a court is either the judge or the district judge. Thus the clause will also prevent any guidance being issued to the judiciary as a body generally. Section 81 of the Courts Act 2003 sets out that the Lord Chief Justice has the power to make practice directions in relation to family proceedings, and this power uses the same reference to the courts rather than the judiciary. I hope that that clarifies the position completely for the noble Baroness, and I welcome Amendments Nos. 5A and 12A.