27 May 2016
FGM and Human Rights Law in the UK: Still a national scandal?
Research blog by Megan Park.
The failure to respond adequately to the growing prevalence of FGM in the UK over recent years has likely resulted in the preventable mutilation of thousands of girls to whom the state owed a duty of care. This is a national scandal for which successive governments, politicians, the police, health, education and social care sectors all share responsibility.
(Home Affairs Committee, 2014, Conclusions and Recommendations)
Human Rights law is typically conceived as governing the relationship between the state and the individual, holding public authorities to account for unjustified intrusions into individual rights and freedoms. In the UK context, Female Genital Mutilation (FGM) is rarely perpetrated by state actors and often takes place extra-territorially. As such, the connection between the FGM, human-rights law and the state may initially appear unclear. This post will explore the obligations which have emerged from the complex system of rights protection applicable in the UK, finding obligations which reach far beyond a simple negative obligation to refrain from perpetration, to a comprehensive catalogue of obligations to prevent and prosecute FGM.
In June 2014, the Home Affairs Committee (2014, Conclusions and Recommendations) declared that the UK Government's response to FGM in recent years constituted a 'national scandal' and had likely breached international rights standards. The Committee called for a national action plan to address these concerns and to meet international legal standards. Subsequent to this pronouncement, the Government took action, amending the Female Genital Mutilation Act 2003 and rolling out a host of new measures aimed at addressing these concerns. This post aims to assess UK Government policy in two key areas – criminal justice and asylum claims.
Human Rights Standards in the UK
The UK is party to a variety of international legal instruments which address gender-based violence, of which the UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) [1971] is the most significant. The Convention sets out an agenda for national action, including the adoption of appropriate laws to prohibit discrimination against women and to ensure effective legal protection from such discrimination. The practice of FGM falls within the definition of discrimination in Article 1 of the Convention as a 'distinction, exclusion or restriction made on the basis of sex' which impairs or nullifies enjoyment of a human right or fundamental freedom.
In the UK, international law is viewed as a distinct system of law, requiring incorporation into the domestic system as a condition of application by national courts. Nevertheless, treaties which are signed and ratified may take indirect effect in domestic legal proceedings as persuasive authority. In addition, UK Government Ministers are required to comply with international law obligations under the Ministerial Code. In contrast, rights protected under the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ‘European Convention’) may be relied upon directly in domestic courts, being incorporated in UK domestic law by the Human Rights Act 1998.
The practice of FGM is relevant to a variety of rights protected by these instruments. Significantly, FGM has been recognised as a form of torture or inhuman treatment under Article 3 (Prohibition of Torture) of the European Convention, and under the International Covenant on Civil and Political Rights. In the case of Fournah v Home Secretary, Lord Bingham held that FGM 'will almost inevitably amount to either torture or to other cruel, inhuman or degrading treatment'. In extreme cases, in which the life of the victim is at stake, Article 2 (Right to life) of the European Convention may also be engaged (UNHCR, 2009). Articles 2 and 3 entail both an unqualified, negative obligation to refrain from involvement in the practice of FGM and a set of positive obligations to prevent FGM and to prosecute offenders (Lazarus, 2010). The practice has also been held to violate further rights such as the right to the highest attainable standards of health (Article 5, UN Declaration of Human Rights, the right to health and bodily integrity) and the right to non-discrimination on the grounds of gender (under Article 14 of the European Convention, again recognised by Lord Bingham in Fournah v Home Secretary).
The practice of FGM further relates to human-rights legislation in the context of refugee law, constituting a form of persecution sufficient to ground a claim for asylum. Under the 1951 Convention Relating to the Status of Refugees, the threat of FGM may constitute a form of persecution 'for reasons of...membership of a particular social group or political', the 'social group' being constituted by women and girls at risk of being subjected to FGM.
Criminal Justice: Positive obligations to protect and to prosecute
Human-rights law generates a number of positive obligations to investigate, prevent or prosecute criminal activity (Lazarus, 2010). The case of Osman v UK highlighted both the range and intensity of obligations which flow from the European Convention in relation to criminal acts perpetrated between private individuals which violate individual rights. States are required to put in place 'effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of the breach of such provisions', including taking proactive measures to ensure the protection of individuals at risk (Osman v United Kingdom, 1998 at 115). The 19th General Recommendation of the CEDAW committee held that 'state parties should take appropriate and effective measures to overcome all forms of gender-based violence, whether by public or private act'. In addition, the Committee recommended that states provide support services for victims and the gender-sensitive training of public officials.
State obligations in this area are complicated by the transnational nature of the practice of FGM. Notably, Articles 38 and 44 of the Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention, 2011) requires the criminalisation of 'inciting, coercing or procuring a girl to undergo' FGM and additionally the prevention of the 'subordination' of national jurisdiction. The UK has signed but not ratified the Istanbul, undermining its effect as a persuasive authority in domestic courts. There is anecdotal evidence to suggest that it is common for girls to be taken abroad to undergo FGM (Home Affairs Committee, 2014) and therefore addressing the possibility of extra-territorial offences is crucial in order to adequately protect women and girls at risk. Evidence presented by the Bar Human Rights Council before the Home Affairs Committee (BHRC, 2014), suggested that insufficient protection in this area has constituted a breach of the UK's international obligations.
Under the law of England and Wales, FGM is criminalised as a specific offence under the Female Genital Mutilation Act 2003. The Act had the effect of extending the offence of FGM to acts committed abroad by UK nationals or permanent UK residents. In response to criticism in relation to the efficacy of the legislation, Parliament made several amendments to the 2003 Act in the Serious Crime Act 2015. Notably, the scope of the Act was amended so as to include acts both perpetrated and suffered by habitual residents, reflecting those criticisms made by the Bar Human Rights Council and bringing the UK closer to the standard laid out by the Istanbul Convention. Further developments may have also ameliorated the position in relation to victim protection. For example, under Section 4A and Schedule 1, provision has been made to protect the life-time anonymity of victims.
Despite these promising developments, the efficacy of UK law remains in question as national authorities have failed to achieve a single conviction under the 2003 Act. From October 2015, a mandatory reporting duty contained in Section 5B of the (amended) 2003 Act has come into force. Aimed at medical, social-care professionals and teachers in England and Wales, the provision requires that professionals report 'known cases' of FGM in relation to girls under the age of 18. The duty to report is a first step towards the imposition of a new scheme of protection orders introduced in June 2015, which can provide a legal basis for the revocation of passports and restrictions on travel. The efficacy of these new measures is, at this stage, uncertain. A follow-up report by the Home Affairs Committee (2015) highlighted a single hospital in Birmingham, in which 1,500 cases of FGM had been reported over the course of five years, yet no convictions secured. During the three months subsequent to their introduction, only 18 special protection orders were approved, prompting calls for greater support for professionals (The Guardian, 2015).
Immigration and Asylum: FGM as persecution
FGM also constitutes grounds for asylum under the 1951 Convention relating to the Status of Refugees. This has been recognised in UK domestic law; for example, in the case of Fournah v Home Secretary, Lord Bingham held that 'FGM constitutes treatment which would amount to persecution within the meaning of the Convention'.
Whilst FGM is formally recognised as a form of persecution, claims on these grounds raise specific concerns which must be addressed to allow women and girls to safely make claims and receive adequate support. The World Health Organization (2014) has noted that women and girls who have undergone FGM are likely to experience significant psychological effects, including anxiety disorders and PTSD. As a result, a woman who has undergone FGM may appear detached and unemotional when recalling the act, which may diminish the credibility of her account in the eyes of the authorities. Women may experience 'secondary victimisation' during the asylum claims procedure; that is, insensitive attitudes on the part of public officials, which may compound existing trauma. As noted above, CEDAW has recommended that officials be given specialised training in this area, in order to increase sensitivity to the psychological effects of FGM. Furthermore, the UNHCR (UNHCR, 2013) has highlighted the need to build a body of gender-sensitive 'Country of Origin Information' to document the particular issues facing women and girls who make asylum claims related to FGM.
A report published by Asylum Aid in 2014 highlights that the alternative of internal relocation (relocation within the country in which the woman is at risk) may be used as a reason to refuse asylum, even where such relocation is likely to be impractical, unfeasible or detrimental to the woman's health (Clayton, 2014). UN guidelines state that the lack of effective state protection in one part of the country is an indication that the state 'will not be able or willing to protect the girl or woman in any other part of the country' (UNHCR, 2009).
The special issues relating to FGM in relation to asylum claims have received significantly less attention from the UK Government. The national action plan instigated in the wake of the 2014 Home Affairs Committee report is aimed primarily at those women and girls already resident in the UK and fails to consider the special considerations which arise in the asylum context and the special role of immigration officers.
Conclusion
Human-rights legislation is engaged by both the intra- and extra-territorial practice of FGM. Accordingly, when women and girls who have undergone FGM or who are at risk of FGM come into contact with UK public authorities, they are protected by a wide and demanding set of human-rights obligations. However, formal legal protection will only constitute tangible protection when significant efforts are made by public authorities to meet both their negative and positive obligations. Greater investment in training for professionals who come into contact with women and girls who have undergone or who are at risk of FGM is needed in order to meet the standards of sensitivity demanded by the UN.
Furthermore, developments in this area belie a double standard by which women who are visitors or seeking asylum are denied effective protection on the same footing as nationals or residents. While the protection of the criminal justice system has been extended to cover habitual residents, non-habitual residents are beyond its scope. Moreover, the needs of women and girls who have experienced or who are at risk of FGM in their home country and who come into contact with UK public officials by way of asylum proceedings have largely been neglected by the otherwise positive steps taken by recent UK governments.
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