The Scottish Parliament - Equal Opportunities Committee Report

Amnesty International Scotland
Save the Children Scotland
Scottish Refugee Council
World Health Organisation (WHO)
Royal College of Midwives
Royal College of Obstetricians and Gynaecologists

1 February 2005, (3rd Meeting, Session 2 (2005))

Written Evidence

Scottish Executive

Oral Evidence

Hugh Henry MSP, Deputy Minister for Justice

ANNEX C: OTHER WRITTEN EVIDENCE

Association of Chief Police Officers in Scotland (ACPOS)
Association of Directors of Social Work (ADSW)
British Medical Association (BMA)
Commissioner for Children and Young People in Scotland
Equal Opportunities Commission
Dr Mary Hepburn
Mr John Telfer
Dr Pamela Buck
Gender Reporter’s Note of Meeting with the Somali Women Action Group, 28 Jan 2005

The following documentation was also received, which is not reproduced here-

Scottish Executive consultation response from Scottish Refugee Council
Background information from Royal College of Midwives
Background information from Royal College of Obstetricians and Gynaecologists
World Health Organisation (WHO); Entre Nous – The European Magazine for Sexual and Reproductive Health No 55 – 2003
World Health Organisation (WHO); European Regional Strategy on Sexual and Reproductive Health
Save the Children; Rights of Passage – Harmful cultural practices and children’s rights
World Health Organisation (WHO); World report on violence and health

Copies are available on request from the Clerk.

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.

Membership:

Cathy Peattie (Convener)
Shiona Baird
Frances Curran
Marlyn Glen
Marilyn Livingstone
Phil Gallie
Nora Radcliffe (Deputy Convener)
Elaine Smith
Ms Sandra White

Committee Clerking Team:

Clerk to the Committee
Steve Farrell

Senior Assistant Clerk
Zoé Tough

Assistant Clerk
Roy McMahon

Equal Opportunities Committee

2nd Report, 2005 (Session 2)

Stage 1 Report on the Prohibition of Female Genital Mutilation (Scotland) Bill

The Committee reports to the Parliament as follows—

Introduction

1. The Prohibition of Female Genital Mutilation (Scotland) Bill (SP Bill 29) was introduced in the Parliament on 29 October 2004 by the Minister for Justice, Cathy Jamieson MSP. The Bill is accompanied by Explanatory Notes (SP Bill 29-EN), a Financial Memorandum, and a Policy Memorandum (SP Bill 29-PM) as required by Standing Orders. The Parliament referred the Bill to the Equal Opportunities Committee as lead committee on 2 November 2004. Under Rule 9.6 of Standing Orders it is for the lead committee to report to the Parliament on the general principles of the Bill.

Background

2. Female genital mutilation (FGM) has been a specific criminal offence in the UK since the passage of the Prohibition of Female Circumcision Act 1985. The Female Genital Mutilation Act 2003 repealed and re-enacted the provisions of the 1985 Act in England, Wales and Northern Ireland, giving them extraterritorial effect and increasing the maximum penalty for FGM from 5 to 14 years imprisonment.

3. The Policy Memorandum of the Bill notes that the policy intention is to “ensure that equal legal protection is afforded in Scotland as in the rest of the UK.”

Consultation

4. The Scottish Executive circulated the draft Bill on 20 July 2004 with responses requested by 31 August 2004. A report on the 59 written responses received was made available to the Committee along with copies of the responses.

Evidence Taken by the Committee

5. The Committee took oral evidence over the course of five meetings starting with the Scottish Executive Bill Team on 30 November 2004 and concluding with evidence from the Deputy Minister for Justice on 1 February 2005. At its meeting on 14 December 2004, the Committee heard from AMINA - the Muslim Women’s Resource Centre, the Foundation for Women’s Health, Research and Development (FORWARD) and the Somali Women Action Group. On 11 January 2005, the Committee took evidence from Glasgow City Council and, on 18 January 2005, from Amnesty International Scotland, Save the Children Scotland, the Scottish Refugee Council, the World Health Organisation (WHO), the Royal College of Midwives and the Royal College of Obstetricians and Gynaecologists.

6. The Committee issued an open call for written evidence and received several written submissions in addition to those provided by the organisations giving oral evidence. The Gender Reporter to the Committee held two meetings with the Somali Women Action Group to discuss the legislation and reports of these meetings are attached at Annexes B and C. The Committee would like to record its thanks to all of those who provided written or oral evidence.

Summary of Recommendations

Consultation Process

7. The Committee recommends that the Executive must take the necessary steps in future consultation exercises to ensure that it complies with its own consultation guidance, and that the 12 week response period identified in the guidance is regarded as a minimum requirement.

8. The Committee recommends that where the Executive considers that there are very exceptional circumstances which justify reducing the consultation period, it should make these circumstances clear in the documentation issued with the consultation and with the Bill.

9. The Committee recommends that in future the Executive should be proactive in identifying, contacting and consulting with any specific groups that are likely to be affected by its policy and legislative proposals.

10. The Committee recommends that the Executive should be proactive in identifying and implementing the most effective methods and means of communication and consultation with such groups to ensure that they are given the opportunity to participate effectively in the consultation process.

11. The Committee recommends that where suggestions for change are identified in a consultation report the Executive should, as well as giving a clear indication as to whether it intends to accept proposed changes, provide an explanation of its response to the points raised.

Specification of Relevant Procedures

12. The Committee recommends that the World Health Organisation classification system of FGM in its entirety (currently types I to IV) is used in the Bill as a reference point to specify procedures which are unlawful under the legislation.

13. The Committee recommends that the Executive should specifically exclude from the provisions of the Bill those elective cosmetic surgical procedures, such as reduction labioplasty, which are increasingly commonly carried out in the UK.

14. The Committee recommends that, in the interest of clarity, the Executive, in addition to referencing the WHO classification of FGM, should specify in the Bill the particular procedures which it wishes to remain outwith the scope of the Bill, such as, for example, decorative piercing, tattooing and specified cosmetic procedures.

15. The Committee recommends that there should be no age limit in the Bill.

16. The Committee recommends that re-infibulation is defined and mentioned specifically on the face of the Bill as an unlawful procedure.

17. The Committee recommends that the offences of attempted FGM and incitement to commit FGM be referred to specifically in guidance issued in respect of the Bill to communities likely to be affected by FGM.

Exceptions

18. The Committee is of the view that it is important that the legislation should ensure that the procedures for permitting surgery which may be considered to be FGM on the basis of either the physical or mental health exceptions should be robust enough to ensure that they are not open to abuse. It considers that there is merit in the Royal College of Physicians in Edinburgh’s suggestion that a second specialist medical opinion would go some way towards achieving this. The Committee therefore recommends that the Scottish Executive should bring forward proposals to amend the Bill accordingly at Stage 2.

Extra-territorial Provision

19. The Committee seeks further clarification from the Minister as to what steps might be taken to extend the provisions of the Bill to provide further protection for asylum seeker children from FGM should they be removed from Scotland.

Penalties for Offences

20. The Committee recommends that the relevant penalties should be given some prominence in information and guidance material circulated to the communities likely to be affected.

Prosecutions

21. The Committee recommends that the Executive take forward its promised discussions with the Crown Office and Procurator Fiscal Service regarding vulnerable witnesses as soon as is practicable and would welcome a report on any subsequent efforts taken to ensure that measures are available which assist those reporting FGM to stay within their communities whilst providing them with adequate support and protection.

Guidance, Education and Training

22. The Committee urges the Scottish Executive to carry out an immediate review of the guidance, education and training currently available for the full range of professionals who are likely to have to deal with instances of FGM and its consequences, assess its effectiveness and develop a plan to ensure the availability and effective implementation of suitable, updated and appropriate material.

23. The Committee further recommends that the Executive should take cognisance of such guidance, education and training material which is already available elsewhere in the UK and worldwide.

24. The Committee seeks an assurance from the Executive that a process will be put in place to ensure that an integrated approach is taken across the Executive and invites a response from the Executive in due course providing information on how this will be achieved.

25. The Committee notes the reference in the Executive’s recently published sexual health strategy to FGM^[1] and looks forward to receiving notification from the Executive that the guidance referred to has been produced and implemented. However, the Committee urges the Executive to ensure that any guidance is only one action undertaken as part of a wider, co-ordinated and strategic approach encompassing all of the services likely to deal with FGM.

26. The Committee recognises that education, awareness raising and confidence building in communities will entail a range of different actions by various organisations and agencies as well as the effective deployment of suitable resources. The Committee seeks clarification from the Executive regarding its plans to develop and support these activities in the relevant communities.

27. The Committee seeks clarification from the Executive as to the costs it expects the range of required initiatives to incur and how it expects them to be funded.

Research and Information

28. The Committee recommends that the Executive take steps to develop methods of collecting baseline data on the prevalence of FGM, whether as part of a UK-wide process, or specifically targeted at the prevalence of FGM in Scotland .

Conclusion

29. The Committee recommends that the general principles of the Bill be agreed to.

Consultation Process

30. The Scottish Executive consultation period on the draft Bill ran from 20 July to 31 August 2004. The Committee was concerned that this period was limited and asked witnesses at Stage 1 for their views on the adequacy of the consultation period. In evidence to the Committee, Jean Murphy of Glasgow City Council noted:

“The timescale was tight for us, particularly as the consultation ran during a holiday period and many of the people who we felt might have had something to say that we could include in our response were not around. It was also during the council recess, so there was no time to prepare a report to go through the committee structure, which was problematic for us.”^[2]

31. Fariha Thomas of AMINA – The Muslim Women’s Resource Centre said:

“If we had had more time, we would have been able to talk to more people and consult more widely. … A longer and more targeted consultation process might have reached more people.”^[3]

32. The Scottish Executive Consultation Good Practice Guidance (June 2004) states that:

“In order to meet existing SE consultation commitments you must:

allow consultees at least 12 weeks to respond, except in very exceptional circumstances”^[4]

33. When asked why the consultation period had been so short, the Deputy Minister for Justice gave the Committee a number of reasons including:

“We were unable to act when the Female Genital Mutilation Bill was going through the UK Parliament, because that coincided with our parliamentary elections, which meant that there was a gap. Although a relatively small number of people are affected, we did not want too long a delay, in case anyone was affected who could otherwise have been protected. We wanted to act quickly. Extending the consultation period would have had the unfortunate consequence of causing other parliamentary delays; we had to manage a fairly heavy parliamentary agenda, with other bills going through, but managed to procure a slot.”

and

“We thought that we would be able to get views in a relatively short space of time. We realised that there was not a huge geographical spread of interest and that that interest was concentrated among specific groups. We thought that we would be able to cope with the consultation in a relatively short period.”^[5]

34. In the Committee’s view, however, none of the reasons given qualify as ‘very exceptional circumstances’ – to paraphrase the Executive’s own good practice guidelines - which would justify such a short consultation timescale, particularly during a holiday period. It is of particular concern to the Committee that the local authority most likely to have to deal with issues related to FGM did not have enough time to produce a response which complied with its normal internal procedures.

35. The Committee acknowledges that the Executive was keen to move quickly to bring forward its proposals to ensure that the protection already provided elsewhere in the UK was made available in Scotland. However, it considers that, regardless of the pressures of the Executive’s parliamentary agenda or other political factors such as the timing of Scottish Parliament or other elections, there is an expectation that consultation on legislative proposals should be carried out in an appropriate and reasonable manner.

36. The Committee therefore recommends that the Executive must take the necessary steps in future consultation exercises to ensure that it complies with its own consultation guidance, and that the 12 week response period identified in the guidance is regarded as a minimum requirement.

37. It further recommends that where the Executive considers that there are very exceptional circumstances which justify reducing the consultation period, it should make these circumstances clear in the documentation issued with the consultation and with the Bill.

38. Concern was also expressed in evidence to the Committee in relation to the format of the consultation material. For example, Susan Elsley of Save the Children Scotland noted:

“… I am concerned about whether there was sufficient opportunity for information to get out to communities that may be particularly affected by the bill and whether that information was presented to them in an appropriate form and in appropriate languages.”^[6]

39. Efua Dorkenoo from FORWARD highlighted the issue of providing information in relevant formats:

“… there is a need to ascertain whether the people who should read the material are literate. There is a tendency to translate material quickly into local languages, but members of the community, particularly women, might not be able to read the documents; it might be better to put the information on tape.”^[7]

40. Witnesses from the Somali Women Action Group agreed in evidence to the Committee that various alternative formats, such as tape, images and translation, would have been useful particularly for members of the Somali community in Scotland.

41. Councillor Graham of Glasgow City Council pointed out in evidence:

“We all – whether the Executive or the councils – have to think about other forms in which to make such sensitive information available. For example, a well-placed key worker working with the communities often provides a good route in.”^[8]

42. A report from the International Centre for Reproductive Health at Ghent University which carried out a study of legislation on FGM advises:

“In the event that specific legislation is developed, or that there are amendments to be made to existing legislation, the government must ensure that members of the community and NGOs are fully consulted, and that they are adequately resourced to advocate.”^[9]

43. It is of concern to the Committee that it appears from evidence that it was only a matter of luck that the Somali Women Action Group were included in the consultation process. Jean Murphy of Glasgow City Council said:

“It was sheer chance that I had been invited along to the group’s inaugural meeting a week before I received the consultation document. At that meeting, the group had stated that one of its objectives was to tackle FGM, so I knew that it would have something to say on the issue, which is why I encouraged it to respond to the consultation.”^[10]

44. The Minister indicated in evidence that the Executive was “ not aware of the Somali women's action group”, but that it “offered to have a range of meetings in case people preferred to discuss the issues with officials rather than providing written evidence”. Whilst this may have been the case, the Committee is disappointed that not enough effort appears to have been made by the Executive to identify and contact the appropriate representatives of the relatively small range of community groups which were most likely to be potentially affected to make them aware of its proposals.

45. The Committee therefore recommends that in future the Executive should be proactive in identifying, contacting and consulting with any specific groups that are likely to be affected by its policy and legislative proposals.

46. The Committee further recommends that the Executive should also be proactive in identifying and implementing the most effective methods and means of communication and consultation with such groups to ensure that they are given the opportunity to participate effectively in the consultation process.

47. The report on the responses to the consultation makes it clear that three changes had been suggested by the respondents. The Policy Memorandum notes that “No changes were made to the draft Bill as a result of the consultation.” The Scottish Executive, however, provides no explanation for its decision not to act on these suggestions.

48. The Committee recommends that where suggestions for change are identified in a consultation report the Executive should, as well as giving a clear indication as to whether it intends to accept proposed changes, provide an explanation of its response to the points raised.

Specification of Relevant Procedures

49. The procedures which qualify as female genital mutilation are specified in section 1(1) of the Bill as excising, infibulating or otherwise mutilating the whole or any part of the labia majora, labia minora or clitoris. According to the World Health Organisation, FGM comprises:

“… all procedures involving partial or total removal of the external female genitalia or other injury to the female genital organs whether for cultural, religious or other non-therapeutic reasons.”^[11]

50. WHO notes that there are different types of FGM practised, which can be categorised as follows:

Type I – excision of the prepuce, with or without excision of part or all of the clitoris;
Type II – excision of the clitoris with partial or total excision of the labia minora;
Type III – excision of part or all of the external genitalia and stitching/narrowing of the vaginal opening (infibulation);
Type IV – pricking, piercing or incising of the clitoris and/or labia; stretching of the clitoris and/or labia; cauterization by burning of the clitoris and surrounding tissue;

scraping of tissue surrounding the vaginal orifice (angurya cuts) or cutting of the vagina (gishiri cuts);
introduction of corrosive substances or herbs into the vagina to cause bleeding or for the purpose of tightening or narrowing it; and any other procedure that falls under the definition given above.

51. The Committee notes the concerns raised in evidence regarding the clarity of specification of procedures which qualify as unlawful under the provisions of the Bill.

52. Efua Dorkenoo of FORWARD, for example, said in evidence to the Committee:

“The Scottish Parliament could consider the definition in the bill. The English law talks about excising or mutilating, but that creates a tendency for people to think that other forms of genital mutilation are okay, as long as they are not the radical form. … It is important to use the WHO terminology to spell out what is allowed and what is not allowed. The English act is not very clear.”^[12]

53. When asked if a reference to the different types should be on the face of the Bill, she responded:

“Yes. All the different types should be noted. Perhaps a footnote could state that female genital mutilation means any of the WHO classifications – types I, II, III and IV.”^[13]

54. The Deputy Minister for Justice in his evidence to the Committee accepts that WHO classification Type IV FGM is not included in the provisions of the Bill:

“I know that type IV female genital mutilation encompasses a range of procedures, some of which involve injury to the vagina rather than to the labia and will not, therefore, be covered by the bill.”^[14]

55. Whilst accepting that some of these procedures “involve injury to the vagina”, the Deputy Minister’s justification for this exclusion appears to be threefold:

“… we need to be sure that we do not catch other procedures, such as tightening procedures on women who have had a number of children. … ..we do not have evidence that type IV female genital mutilation is necessarily prevalent in Scotland. … It is right to have a degree of consistency across the UK.”^[15]

56. With regard to the lack of evidence of prevalence of Type IV FGM in Scotland, the Committee notes that the Bill contains an extra-territorial provision and should, therefore, relate to procedures which are likely to be carried out in other countries. FORWARD’s evidence also suggests that practitioners of FGM might change the procedures they carry out in order to remain within the law.^[16]

57. Following evidence received from both Dr Pamela Buck of the Royal College of Obstetricians and Gynaecologists and John Telfer, Consultant Plastic Surgeon, the Committee is content that vaginal tightening procedures on women who have had a number of children are routinely performed procedures which would fall under the health exception of the Bill (section 1(2)(a)).

58. In relation to the question of the need for consistency across the UK, the Committee considers that clear and effective legislative provision is more important than consistency. The Committee therefore recommends that the WHO classification system in its entirety (currently types I to IV) is used in the Bill as a reference point to specify procedures which are unlawful under the legislation.

59. The Committee notes the Deputy Minister’s comments in relation to the WHO classification:

“… the WHO is rethinking and reformulating the definition of female genital mutilation and I would be worried that a more specific definition in the bill could miss some of the forms of FGM that the WHO might describe.”^[17]

60. However, as Dr Baumgarten of the WHO noted in evidence to the Committee:

“The WHO definition is internationally recognised as the standard definition of what we mean if we talk about female genital mutilation, female genital cutting or female circumcision. Usually, the countries that have legislation refer to that definition, although some countries make exceptions in respect of piercing in the area of the vagina, for example.”^[18]

61. The Committee is not suggesting that the Bill lists exhaustively the specific procedures to be made unlawful, but rather refers to the WHO classification as the internationally recognised definition of FGM and specifically identifies any procedures to be excluded in terms of the legislation in Scotland.

62. The Committee welcomes the Deputy Minister’s assurance that he will reflect on the use of the WHO classification in the Bill.^[19]

Elective cosmetic vaginal surgery

63. It has been brought to the attention of the Committee in evidence that there are certain elective cosmetic procedures, such as reduction in the size of the labia minora, which fall within the scope of the procedures identified as unlawful in the Bill.

64. Consultant Plastic Surgeon, John Telfer, explains in his written submission to the Committee that, in relation to the procedure known as reduction labioplasty:

“… there are a group of patients, who do not have physical problems or significant, clinically apparent, psychological concerns, who request such surgery. Currently, under these circumstances, such surgery, if the letter of the law is to be applied, would be illegal.”

65. He comments on the frequency of such cosmetic surgical procedures:

“It was recognised at the meeting of the British Society of Sexual Medicine in London, in January 2004, that the request for cosmetic procedures to the female genitalia was rising.” He concludes;

“It would … seem inappropriate to outlaw such procedures specifically or by including such surgery under the terms of the Prohibition of Female Genital Mutilation (Scotland) Bill and yet allow other forms of cosmetic surgery.”

66. Comfort Momoh from the Royal College of Midwives confirmed that:

“Cosmetic procedures are common in London. I know that people go to Harley Street to have their labia reduced.”^[20]

67. A report from the International Centre for Reproductive Health in Ghent supports the need for clarity:

“In case specific law provisions exist, these should be very clear about the forms of FGM that are prohibited, especially with regard to the emerging practice of piercing/tattooing of the genitals and cosmetic vaginal surgery vis- à -vis FGM.”^[21]

68. The Committee assumes that this type of surgery is not the intended target of this legislation. It considers therefore that it would be inappropriate to outlaw such elective cosmetic procedures which are commonly and increasingly carried out throughout the UK - and which could not be considered to be FGM - as a consequence of the Bill.

69. The Committee recommends that the Executive specifically exclude from the provisions of the Bill those elective cosmetic surgical procedures, such as reduction labioplasty, which are increasingly commonly carried out in the UK.

70. The Committee therefore recommends that, in the interest of clarity, the Executive, in addition to referencing the WHO classification of FGM (see paragraph 58 above) should specify in the Bill the particular procedures which it wishes to remain outwith the scope of the Bill, such as, for example, decorative piercing, tattooing and specified cosmetic procedures.

71. The Committee welcomes the Deputy Minister’s assurances that the Executive will continue to discuss matters in relation to cosmetic surgery^[22] and that he will reconsider the definitions to see if there could be some unintended consequence.^[23]

Age limit/consent

72. In view of the fact that some countries which have laws against FGM have an age limit of 18 years of age, allowing for consenting adults to have relevant elective cosmetic surgical procedures carried out, the Committee considered whether Scotland should make similar provision in its legislation. This proposition did not, however, find favour with any of the witnesses who gave evidence.

73. Efua Dorkenoo mentions in evidence, for example, the following issues in relation to age and consent:

“FGM is usually done up to the age of puberty, but it is also done to 18-year-olds and it is forced on older women by their families.”^[24]

and:

“… the reality is that gross pressure is brought to bear on African women and it is more likely for women to be conditioned — the push factor is strong.

You must also consider the pressure that the extended family might put on a woman over the age of 18 — she might not even be from the community. Years ago, I worked with a white woman in Manchester who married a Sudanese man and was pressured by the women in the community to undergo infibulation. She underwent the procedure to be accepted within the group.”^[25]

74. The Somali Women Action Group in a meeting with the Committee’s Gender Reporter strongly expressed the view that FGM procedures should be made unlawful irrespective of age^[26]. The Committee is persuaded by the evidence that it has heard that this would not be a helpful addition to the Bill. The Committee, therefore, recommends that there should be no age limit in the Bill.

Re-infibulation

75. Concern was expressed in evidence to the Committee regarding the clarity of the legislation in relation to the status of re-infibulation — restitching after childbirth to return a woman who had previously undergone stage III FGM (infibulation) to the condition she was in before childbirth.

76. Dr Mary Hepburn, Consultant Obstetrician, notes in her written submission that the legislation does not clearly state that re-infibulation following childbirth is unlawful:

“… health care workers in maternity services who have to make incisions to enlarge the introitus for delivery are often put under pressure to repair this incision to restore the genitalia to the condition before pregnancy/delivery. At present this is clearly illegal. However, I am concerned that the wording of the proposed legislation does not make that explicit. … I think it is important that the legislation leaves no room for ambiguity.”

77. The report from the International Centre for Reproductive Health also supports this view and highlights the need to differentiate clearly between re-suturing an episiotomy and re-infibulation:

“To avoid confusion, re-infibulation needs to be defined and specific law provisions should be very clear about re-infibulation.”^[27]

78. The Committee is concerned that there should be no confusion between the common and necessary practice of re-suturing after an episiotomy and the unnecessary and mutilating practice of re-infibulation. The Committee, therefore, recommends that re-infibulation is defined and mentioned specifically on the face of the Bill as an unlawful procedure.

Additional Offences

79. In its written submission to the Committee, Amnesty International Scotland suggested that the Bill should include two additional offences — attempted FGM and incitement to FGM. Rosemary Burnett of Amnesty International Scotland pointed out in evidence:

“We believe that it is important to include in the bill a provision on incitement to FGM. “Incitement” is a very strong word. We are dealing with a cultural practice that has been deeply rooted in many communities for many generations. Many people, especially older people, in those communities are deeply committed to the practice — for very good reasons, as far as they are concerned.”^[28]

80. The Committee questioned the Deputy Minister on the possibility of including these additional offences in the Bill and he indicated that incitement to commit a crime and attempted crime are already offences in Scots law:

"Section 294 of the Criminal Procedure (Scotland) Act 1995 states:

"Attempt to commit any indictable crime is itself an indictable crime.""; and

"… conspiracy and incitement to commit crimes are offences under Scots common law."^[29]

81. The Committee is content with the reassurance given by the Deputy Minister that attempted FGM and incitement to commit FGM will become offences in Scots law should the Bill be passed and that there is, therefore, no need to add these specifically to the Bill.

82. The Committee recommends that these offences be referred to specifically in guidance issued in respect of the Bill to communities likely to be affected by FGM.

Exceptions

Mental health exception

83. Section 1(2)(a) of the Bill provides that no offence is committed when an approved person performs “a surgical operation on another person which is necessary for that other person’s physical or mental health.” However, concerns have been raised in evidence that the mental health exception in the Bill might provide a loophole which could be open to abuse. Glasgow City Council, for example, notes in evidence:

“We are a wee bit concerned that the bill says that it would not be illegal for someone to perform the procedure if it was for the good of a person’s mental health. We think that could be used as a loophole; that is what worries us.”^[30]

84. Councillor Irene Graham from Glasgow City Council expands on this concern:

“We know that women in the communities in which FGM takes place and is long established are under severe cultural pressure from everybody in the those communities. … a coherent and cogent argument might be made for FGM being good for a woman’s or child’s mental health. For that reason, we are against the provision in the bill as it stands.^[31]

85. This concern is echoed by the Royal College of Physicians of Edinburgh (RCPE) in its consultation response to the Scottish Executive, where it states:

“Perhaps it would be stronger if the person’s physical need for the operation must be agreed by two consultant obstetricians/gynaecologists with a certificate of completion of specialist training (or equivalent) and registered with the UK General Medical Council. The same clause could also be added for the mental health requirement with two psychiatrists, again with a certificate of completion of specialist training (or equivalent) and registered with the UK General Medical Council.”

86. The Committee raised the issue of the potential loophole with the Deputy Minister and asked if he would consider including in the Bill a provision for two competent people to decide whether a proposed procedure is acceptable under the exemption.

87. The Deputy Minister noted that he did not think that there was a loophole and that the requirement for two medical practitioners to agree on a procedure would:

“ … introduce unnecessary complications, and it could introduce unnecessary delays.”^[32]

88. The Committee is of the view that it is important that the legislation should ensure that the procedures for permitting surgery which may be considered to be FGM on the basis of either the physical or mental health exceptions should be robust enough to ensure that they are not open to abuse. It considers that there is merit in the RCPE’s suggestion that a second specialist medical opinion would go some way towards achieving this.

89. The Committee therefore recommends that the Scottish Executive should bring forward proposals to amend the Bill accordingly at Stage 2. It welcomes the assurances of the Deputy Minister that he will reconsider this matter.^[33]

Extra-territorial Provision

90. The Bill creates extra-territorial offences that prevent UK nationals or permanent UK residents being taken abroad to have FGM performed on them. In addition, the Bill prevents UK nationals or permanent UK residents performing FGM abroad. The provisions in this Bill go further than the 1985 Act in relation to where the offence of performing FGM can take place and the provisions in the Bill would bring Scotland in line with the 2003 Act’s provisions.

91. The Committee welcomes this proposed extension to the current legislation but notes that there are remaining concerns about the level of protection afforded to asylum seekers.

92. The Committee was assured in evidence from Executive officials that the proposals would protect asylum seekers whilst they were in the UK. A member of the Scottish Executive Bill Team said:

“I want to make it absolutely clear that while asylum seekers are in Scotland — or, for that matter, the rest of the UK — they are covered by the terms of the bill.”^[34]

93. However concern was expressed by a number of witnesses that asylum-seeker children would not be covered by the Bill if they were taken abroad to have FGM performed on them. In evidence, Simon Hodgson from the Scottish Refugee Council said:

“… the Bill will still not protect children who are seeking asylum.”^[35]

94. Councillor Irene Graham from Glasgow City Council said:

“… we cannot assume that children will never be taken out of the country by other family or community members. We are concerned that the bill should contain additional protection.”^[36]

95. The Deputy Minister, when asked by the Committee to clarify the position in relation to children of asylum seekers, confirmed that if an asylum seeker child was taken abroad by a foreign national to have FGM performed, there would be no offence, because:

“… the law does not cover individuals who have no rights here. The act would take place in a country over which we had no jurisdiction and would be carried out by someone who would not be subject to UK law.”^[37]

96. Kathleen Marshall , the Commissioner for Children and Young People in Scotland, expressed in evidence concern that some children would be excluded from the Bill’s protection “in a way that appears discriminatory in terms of article 2 of the [United Nations] Convention on the Rights of the Child.” (UNCRC)

97. The Committee raised this concern with the Deputy Minister in evidence and he stated:

“ That is one interpretation. I repeat my earlier point that when children come to this country they are protected against any such acts that are carried out within this country. However, there are limits in international law to how wide we can extend our extraterritorial powers. International law requires a tangible link to Scotland.”^[38]

98. On considering the evidence received the Committee is satisfied that the Bill is not in breach of the UK’s obligations under the UNCRC. Article 2 of the UNCRC states that:

“ States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”^[39]

99. The Committee understands that because the Bill provides that FGM against any child in Scotland is an offence, the Bill will not be discriminatory for the purposes of article 2.

100. In addition, the Deputy Minister said:

“It would be highly unusual in international law for us to take jurisdiction over acts committed abroad by people who are not UK residents…. International law requires a tangible link to Scotland. Establishing a link becomes more difficult if someone is temporarily here without any legal rights and then goes abroad, where something happens.”^[40]

101. The Scottish Refugee Council also expressed concern that a situation could potentially arise whereby a UK national or permanent UK resident could arrange for FGM to be carried out abroad on an asylum seeker child. However, it is the Committee’s understanding that if a UK national or permanent UK resident were to become involved in such activity, they would not be guilty of an offence under this Bill. The Deputy Minister confirmed that this was the case for the following reason:

“… the UK resident would be committing an act in relation to someone who had no tangible link to Scotland.”^[41]

102. The Committee notes, however, that the Deputy Minister suggests that there might be scope for considering how further protection might be offered to asylum seeker children. In evidence the Deputy Minister stated:

“There is a technical issue about the competence of the Parliament and the scope of the bill. Presumably, something could be done, but there could be ramifications in relation to international responsibilities and obligations, and we are unsure of the net result.”^[42]

and

"We are consulting the Home Office on difficulties and the matter has not been concluded. We want to resolve some of the ambiguities and difficulties."^[43]

103. The Committee seeks further clarification from the Minister as to what steps might be taken to extend the provisions of the Bill to provide further protection for asylum seeker children from FGM should they be removed from Scotland.

Penalties for Offences

104. Section 4 of the Bill increases the maximum penalty from 5 to 14 years imprisonment. This proposal was welcomed by the majority of those who gave evidence to the Committee. As Rosemary Burnett of Amnesty International Scotland notes in evidence:

“It is important to send out a signal that the practice is wrong. We need to be clear that the practice constitutes torture and that it will not be countenanced in Scotland. The Bill sends out that signal.”^[44]

105. The Committee welcomes the increase in the maximum custodial sentence for those found guilty of carrying out offences under the proposed legislation. It is of the view that this provides a clear indication of the seriousness with which the offences laid down in the legislation are viewed in Scotland. The Committee recommends that the relevant penalties should be given some prominence in information and guidance material circulated to the communities likely to be affected.

Prosecutions

106. The Executive notes in the Financial Memorandum which accompanies the Bill that:

“Given the lack of FGM investigations and prosecutions under the 1985 Act, few, if any, prosecutions are anticipated under this Bill …”

107. However, the Committee has heard evidence which suggests that this might not be the case. Efua Dorkenoo of FORWARD stated in evidence to the Committee:

“We must not … underestimate the possibility of prosecution. Right now, we have second-generation British girls asking us to pursue legislation because they want to take their parents to court. In France, about two years ago, a 22-year-old woman of Malian parentage not only identified the woman who mutilated her - the communities were bringing traditional practitioners into France to do it - but was able to get hold of about 22 other girls who had undergone genital mutilation. … We should not say that prosecution is not going to happen, because it is a process. At the moment, even though we do not want to alienate girls from their families, some girls feel very angry about what has happened to them and may move in the direction of prosecution."^[45]

108. he Committee notes that prosecutions may be more likely as cultural changes take place due to the introduction and acceptance of legislation such as that proposed together with awareness-raising work in the target communities. However, the Committee is also aware of the need for support to be available for members of affected communities.

109. FORWARD noted, for example, in relation to work done in England:

“… we have found that older siblings have acted to protect their younger siblings. They know that there are places where they can call for help and where help will be given.”^[46]

110. The Committee asked the Deputy Minister whether sufficient support mechanisms were in place for those members of relevant communities who report cases of FGM and heard that:

“ … we have been improving the services that we give to those people who report crime … who are vulnerable witnesses.”^[47]

111. The Committee is concerned that existing measures to protect vulnerable witnesses may not be wholly appropriate given that it is likely that those who report FGM would wish to remain within their communities. The Committee welcomes the Deputy Minister’s undertaking that:

“We will discuss with the Crown Office and Procurator Fiscal Service how some of the substantial training that it is carrying out on how vulnerable witnesses should be treated is applied to people who give evidence in cases that arise under the bill.”^[48]

112. The Committee recommends that the Executive take forward these discussions as soon as is practicable and would welcome a report on any subsequent efforts taken to ensure that measures are available which assist those reporting FGM to stay within their communities whilst providing them with adequate support and protection.

Guidance, Education and Training

113. Much of the evidence provided to the Committee highlights the importance of supporting the legislation through the provision of guidance, education and training for professionals as well as awareness-raising and support for members of affected communities.

114. Dr Baumgarten of the World Health Organisation notes in evidence:

"In Europe, we have become aware through consultative meetings with technical experts in the health field that health care providers in many countries — whether doctors, midwives, nurses, paediatric nurses or others — still have insufficient knowledge. They do not know what to do if they are confronted with FGM — they are embarrassed and afraid to take action that might result in their being labelled as having a racist attitude and they might not know how to deal with problems."^[49]

115. Comfort Momoh of the Royal College of Midwives echoes this concern when she states:

"From my experience of running conferences and seminar, I am sad to say that only about 70% of professionals in the UK are aware of FGM even if they are not aware of the law."^[50]

116. More worryingly, in the Committee’s opinion, a health report notes:

"A study^[51] among professionals in health, education, social services and police in three major UK cities found nearly four-fifths felt ill-equipped to deal with cases."^[52]

117. Efua Dorkenoo of FORWARD pointed out in evidence:

"Professionals need to be given protocols and guidelines. … Once a local authority has developed policies, professionals will require a lot of training to help them to work with the subject."^[53]

118. The Committee is concerned that, although FGM has been unlawful in the UK since 1985 under the provisions of the Prohibition of Female Circumcision Act 1985, the evidence the Committee has received shows that there is still a lack of understanding and expertise amongst the professionals who are likely to be confronted with FGM and its consequences. This is despite the fact, as has been made clear to the Committee in evidence from FORWARD, the Royal College of Obstetricians and Gynaecologists and the Royal College of Midwives, that guidance and information is currently available.

119. The Committee recognises that the issue of FGM cuts across the remits of a number of departments of the Executive and considers that effective implementation of the policy objectives of the proposed legislation can only be achieved through a co-ordinated and integrated, strategic approach.

120. Rosemary Burnett of Amnesty International Scotland stated in relation to the legislation:

"… it should be part of an integrated strategy to protect girls and women from harmful cultural practices. It will not work in isolation but will be part of an integrated approach by the Scottish Executive."^[54]

121. The Committee, therefore, welcomes the recognition on the part of the Deputy Minister that:

"Across the Executive — perhaps more so for my colleagues who deal with health and social work issues — there is a need to work together with a range of agencies to ensure that further guidance is integrated with existing relevant work on child protection, domestic abuse, sexual health and maternal health issues. … as is integrated and co-operative work across departments of the Executive and agencies, which we need to ensure are working towards the same purpose."^[55]

122. The Committee notes the reference in the Executive’s recently published sexual health strategy to the production of a form of guidance on FGM^[56] and looks forward to receiving notification from the Executive that the guidance referred to has been produced and implemented.

123. The Committee, nevertheless, urges the Scottish Executive to carry out an immediate review of the guidance, education and training currently available for the full range of professionals who are likely to have to deal with instances of FGM and its consequences, assess its effectiveness and develop a plan to ensure the availability and effective implementation of suitable, updated and appropriate material.

124. The Committee heard in evidence and received examples of a range of guidance materials produced by organisations such as FORWARD, the Royal College of Midwives and the World Health Organisation. The Committee, therefore, further recommends that the Executive should take cognisance of such material which is already available.

125. The Committee seeks an assurance from the Executive that a process will be put in place to ensure that an integrated approach is taken across the Executive and invites a response from the Executive providing information on how this will be achieved.

126. Evidence has highlighted the need, in addition to introducing the legislation and providing guidance and training for relevant professionals, to work effectively with the target communities to raise their awareness about FGM, the legislation and the services which are available to them. Efua Dorkenoo of FORWARD, for example, notes in evidence:

"The other angle relates to providing support, resources and empowerment to communities to enable them to start to address the issue. … Work must be done with the professionals at the same time as the message is being sent out to the communities."^[57]

127. The Somali Women Action Group in Glasgow pointed out in evidence:

"We know that it is illegal, but our group does not understand what is legal or illegal. People do not understand if we say that it is illegal. They say that they do not want to change their culture. Our group needs more education."^[58]

128. Comfort Momoh of the Royal College of Midwives underlines one of the issues in relation to working with the target communities:

"The mistake that was made in respect of the Prohibition of Female Circumcision Act was that the communities were not aware of it because it had not been translated into different languages."^[59]

129. The Committee, therefore, welcomes the Deputy Minister's assurance that:

"It is incumbent on us to approach this matter with sensitivity and to consider education, awareness raising and confidence building in the communities."^[60]

130. The Committee recognises that this will entail a range of different actions by various organisations and agencies as well as the effective deployment of suitable resources. The Committee seeks clarification from the Executive regarding its plans to develop and support these activities in the relevant communities.

131. The Committee considers that the effective provision of guidance, education and training to support the Bill is likely to involve costs which have not been identified in the Financial Memorandum. Dr Inge Baumgarten of the World Health Organisation, for example, noted in evidence to the Committee:

"It is unrealistic to assume that we will be able to do what needs to be done without any additional funding. For example, if we want to know more about the prevalence of the practice in Scotland, we will need to carry out research, which will require money. It we want to train people, we will need money. An integrated approach that brings together representatives from the various sectors will need time and resources to be allocated to it to ensure that people can attend meetings, for example. Producing materials will also require funding."^[61]

132. The Committee recognises the Deputy Minister's view that:

"I do not think that the bill is the place for us to resolve issues around providing support mechanisms, education and training and raising awareness in a range of communities."^[62]

133. However, as the Committee has heard, such measures must accompany the law to make it effective in the long run. This being the case, and as the Deputy Minister recognised in evidence such a need, the Committee seeks clarification from the Executive as to the costs it expects the range of required initiatives to incur and how it expects them to be funded.

Research and Information

134. It has become clear from the evidence the Committee has heard that there is insufficient reliable information about the prevalence of FGM. Although FGM has been unlawful in the UK since 1985 and the law in England, Wales and Northern Ireland was extended by means of the Female Genital Mutilation Act 2003, Efua Dorkenoo from FORWARD reports:

"… if you were to ask us about the prevalence of FGM in England, we do not have data; the evidence is all anecdotal. At the moment, we are designing a study of prevalence by examining a number of maternity hospitals and asking them what they are seeing. We will set those data as our baseline so that we can check in the next generation whether there has been a change. We need such data, but we also need to do attitudinal studies within communities. Such studies would inform the educational strategy, tell us where we should target information and tell us whether the critical issue is the religious angle or something else."^[63]

135. In the absence of such baseline data, it will be difficult to monitor the impact of the Bill and any other initiatives put in place to support the Bill. The Committee recommends that the Executive take steps to develop methods of collecting such data, whether as part of a UK-wide process, or specifically targeted at the prevalence of FGM in Scotland.

Conclusion

136. Subject to the recommendations and comments contained within this report, the Committee welcomes the introduction of the Prohibition of Female Genital Mutilation (Scotland) Bill as a means of restating and strengthening the protection currently afforded under the Prohibition of Female Circumcision Act 1985.

137. The Committee therefore recommends that the general principles of the Bill be agreed to.

Footnotes:

^[1] Scottish Executive, Respect and Responsibility; Strategy and Action Plan for Improving Sexual Health, Edinburgh 2005, page 20

^[2] Equal Opportunities Committee, Official Report, 11 January 2005, col 743

^[3] Equal Opportunities Committee, Official Report, 14 December 2004, col 713

^[1] Scottish Executive: Consultation Good Practice Guidance (June 2004), page 5

^[5] Equal Opportunities Committee, Official Report, 1 February 2005, col 826

^[6] Equal Opportunities Committee, Official Report, 18 January 2005, col 772

^[7] Equal Opportunities Committee, Official Report, 24 December 2004, col 714

^[8] Equal Opportunities Committee, Official Report, 11 January 2005 col 744

^[9] Legislation in Europe Regarding Female Genital Mutilation and the Implementation of the Law in Belgium, France, Spain, Sweden and the UK, Els Leye and Jessika Deblonde (coord.), International Centre for Reproductive Health, Ghent University, April 2004, page 47, paragraph 2.

^[10] Equal Opportunities Committee, Official Report, 11 January 2005, col 744

^[11] World Health Organisation, Fact sheet No 241, June 2000

^[12] Equal Opportunities Committee, Official Report, 14 December 2005, col 717

^[13] Equal Opportunities Committee, Official Report, 14 December 2005, col 718

^[14] Equal Opportunities Committee, Official Report, 1 February 2005, col 828

^[15] Equal Opportunities Committee, Official Report, 1 February 2005, col 829

^[16] Equal Opportunities Committee, Official Report, 14 December 2005, col 717

^[17] Equal Opportunities Committee, Official Report, 1 February 2005, col 829

^[18] Equal Opportunities Committee, Official Report, 18 January 2005, col 775

^[19] Equal Opportunities Committee, Official Report, 1 February 2005, col 829

^[20] Equal Opportunities Committee, Official Report, 18 January 2005, col 800

^[21] Legislation in Europe Regarding Female Genital Mutilation and the Implementation of the Law in Belgium, France, Spain, Sweden and the UK, Els Leye and Jessika Deblonde (coord.), International Centre for Reproductive Health, Ghent University, April 2004, page 47, paragraph 2.

^[22] Equal Opportunities Committee, Official Report, 1 February 2005, col 831

^[23] Equal Opportunities Committee, Official Report, 1 February 2005, col 832

^[24] Equal Opportunities Committee, Official Report, 14 December 2004, col 726

^[25] Equal Opportunities Committee, Official Report, 14 December 2004, col 728

^[26] Gender Reporter’s Meeting with the Somali Women Action Group (SWAG) 28 January 2005, Annex

^[27] Legislation in Europe Regarding Female Genital Mutilation and the Implementation of the Law in Belgium, France, Spain, Sweden and the UK, Els Leye and Jessika Deblonde (coord.), International Centre for Reproductive Health, Ghent University, April 2004, page 47, paragraph 2.

^[28] Equal Opportunities Committee, Official Report, 18 January 2005, col 778

^[29] Equal Opportunities Committee, Official Report, 1 February 2005, col 848

^[30] Equal Opportunities Committee, Official Report, 11 January 2005, col 755

^[31] Equal Opportunities Committee, Official Report, 11 January 2005, col 755

^[32] Equal Opportunities Committee, Official Report, 1 February 2005, col 842

^[33] Equal Opportunities Committee, Official Report, 1 February 2005, col 842

^[34] Equal Opportunities Committee, Official Report, 30 November 2004, col 689

^[35] Equal Opportunities Committee, Official Report, 18 January 2005, col 776

^[36] Equal Opportunities Committee, Official Report, 11 January 2005, col 760

^[37] Equal Opportunities Committee, Official Report, 18 January 2005, col 847

^[38] Equal Opportunities Committee, Official Report, 1 February 2005, col 843

^[39] Convention on the Rights of the Child, Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989

^[40] Equal Opportunities Committee, Official Report, 18 January 2005, col 843

^[41] Equal Opportunities Committee, Official Report, 18 January 2005, col 846

^[42] Equal Opportunities Committee, Official Report, 18 January 2005, col 842

^[43] Equal Opportunities Committee, Official Report, 1 February 2005, col 844

^[44] Equal Opportunities Committee, Official Report, 18 January 2005, col 780

^[45] Equal Opportunities Committee, Official Report, 14 December 2004, col 723

^[46] Equal Opportunities Committee, Official Report, 14 December 2004, col 721

^[47] Equal Opportunities Committee, Official Report, 1 February 2005, col 849

^[48] Equal Opportunities Committee, Official Report, 1 February 2005, col 850

^[49] Equal Opportunities Committee, Official Report, 18 January 2005, col 774

^[50] Equal Opportunities Committee, Official Report, 18 January 2005, col 792

^[51] Lawrence A. Assessing training needs of UK professionals on female genital mutilation (FGM). London: FORWARD 2001

^[52] R.A. Powell et al./Health policy 70 (2004) 151-162: Female genital mutilation, asylum seekers and refugees: the need for an integrated European Union agenda, page 156

^[53] Equal Opportunities Committee, Official Report, 14 December 2004, col 719

^[54] Equal Opportunities Committee, Official Report, 18 January 2005, col 784

^[55] Equal Opportunities Committee, Official Report, 1 February 2005, col 835

^[56] Scottish Executive, Respect and Responsibility; Strategy and Action Plan for Improving Sexual Health, Edinburgh 2005, page 20

^[57] Equal Opportunities Committee, Official Report, 14 December 2004, col 719

^[58] Equal Opportunities Committee, Official Report, 14 December 2004, col 732

^[59] Equal Opportunities Committee, Official Report, 18 January 2005, col 795

^[60] Equal Opportunities Committee, Official Report, 1 February 2005, col 835

^[61] Equal Opportunities Committee, Official Report, 18 January 2005, col 790

^[62] Equal Opportunities Committee, Official Report, 1 February 2005, col 836

^[63] Equal Opportunities Committee, Official Report, 14 December 2004, col 726