My Lords, these amendments fulfil an undertaking I gave in Committee in response to amendments tabled by my noble friend Lady Bertin that sought to ensure that UK citizens who commit marital rape in countries where such behaviour is not criminal may none the less be prosecuted in the UK.
I said then that we would consider this matter ahead of Report and, bearing in mind that the extraterritorial jurisdiction provisions are UK-wide, that we would also consult the devolved Administrations to ensure a consistent approach across the UK. We have done both —we have considered and we have consulted. I am pleased to say that, with the agreement of Ministers in Scotland and Northern Ireland, government Amendments 53 to 55, 58 to 61 and 63 to 65 achieve what my noble friend intended, and will apply to relevant legislation throughout the UK. I shall remind the House briefly, given the hour, of the provisions.
Schedule 2 to the Bill contains amendments to various enactments to provide for extraterritorial jurisdiction over certain offences under the law of England and Wales, Scotland and Northern Ireland. This will ensure that, as required by the Istanbul convention, the UK will be able to prosecute these offences when they are committed outside the UK by one of our nationals or habitual residents. The scheme is this: part 1 of the schedule covers England and Wales, part 2 covers Scotland, and part 3 covers Northern Ireland.
In keeping with the normal principles of extraterritorial jurisdiction and the terms of the convention, there is a requirement that a prosecution for one of the relevant sexual offences—these include rape where the victim of the offence is aged 18 or over—may be brought in the UK only when the offending behaviour is also an offence in the country where it happens. This is known as dual criminality.
11.15 pm
In most circumstances, that dual criminality requirement is not a barrier to prosecution because most serious sexual offences against adults are likely to be criminal in most other countries. However, as my noble friend Lady Bertin identified, it could mean that, in some circumstances, UK authorities would not be able to prosecute someone for marital rape committed outside the UK if such behaviour is either not included in or exempt from the equivalent offence in the other jurisdiction. This is a narrow gap, but we believe that it is right, as a matter of principle, to amend the Bill to cater for it.
As it stands, the Bill applies a dual criminality requirement for relevant sexual offences committed against adults outside the UK by UK nationals and by UK residents. Government Amendments 53 to 55 would amend part 1 of Schedule 2 to remove the dual criminality requirement for UK nationals who commit offences under Sections 1 to 4 of the Sexual Offences Act 2003 against adult victims outside the UK. With the agreement of Ministers in Scotland and Northern Ireland, government Amendments 58 to 61 and 63 to 65 will amend parts 2 and 3 of the schedule to make corresponding changes to the Scottish and Northern Irish legislation and orders. These amendments will mean that UK nationals who commit marital rape in the small number of countries where such behaviour is not criminal may none the less be brought to trial in the UK.
However, a dual criminality requirement will continue to apply for UK residents. This means that we could prosecute UK residents who commit marital rape abroad only if the behaviour is also criminal in the country where it is committed. We should not prosecute, for example, a Ruritanian national who is habitually resident in England for doing something in Ruritania that is not criminal under Ruritanian law. I remind the House that existing law already makes the same distinction between UK nationals and UK residents in relation to extraterritorial sexual offences where the victim is aged under 18.
In short, these amendments will ensure that our nationals comply with our laws even when abroad. At the same time, the amendments respect important principles of international law and comity in relation to non-UK nationals ordinarily resident in the UK.
Finally, government Amendments 56, 57 and 62 have been included at the request of Ministers in Scotland. These make additional amendments to part 2 of Schedule 2 to provide—for offences where a dual criminality requirement is being retained—a rebuttable presumption that the act in question constitutes an offence under the law of the country where it took place. This mirrors existing provisions throughout the UK in
relation to extraterritorial sexual offences against children and other provisions in this Bill extending extraterritorial jurisdiction to offences that do not currently have extraterritorial effect. The relevant provisions simply provide a procedure under which the defendant can challenge the prosecution to prove that what was done was an offence under the laws of the country where the act was done.
Again, I express my thanks to my noble friend Lady Bertin for raising this issue. For these reasons, I beg to move.