, David Hodson
and Madeleine Gordon
explain the progress with the Istanbul Convention on the Prevention of Domestic Violence following the Royal Assent on 27th April to the Private Members Bill, which brings forward the Convention’s ratification by the UK
On 8 June 2012, the UK government made a commitment to help end violence against women by signing and promising to ratify The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (CETS No.210) (the 'Istanbul Convention').
To the dismay of many, it did not initially appear that the government intended to follow through on this promise. Questions were raised (seemingly from government) as to whether the requisite extra-territorial effect of the Istanbul Convention could feasibly be incorporated into English law. Challenges were (understandably) mounted by politicians who said that the Istanbul Convention discriminated against male victims of violence. The Istanbul Convention’s ratification seemed to be slipping down the priority list of our lawmakers.
Then there was in the last day of this Parliament some welcome news. On 27 April 2017, the Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Bill
, which takes the first step towards incorporating the Istanbul Convention into domestic law, was given Royal Assent and became an Act of Parliament.
The Istanbul Convention
Born from an acknowledgement that a harmonised structural and legislative response to domestic violence was needed to ensure that victims receive the same protection wherever they are in Europe, the Istanbul Convention was opened for signature on 11 May 2011 in Istanbul, Turkey. The aim of the Convention was, and remains, to provide a comprehensive legal framework and approach to combat violence against women.
The Convention lays a strong emphasis on prevention of violence. The measures set forth in the Convention include granting the police the power immediately to remove perpetrators of domestic violence from the home, setting up national telephone helplines and accessible shelters, and increased availability of rape and sexual violence crisis shelters (which continue to be rare across Europe).
The Convention also defines and criminalises various forms of violence against women, including stalking, sexual harassment and psychological violence. In order for states to give effect to the Convention, they are required to introduce new offences and co-ordinated policies where they are not adequately met by existing domestic criminal legislation and policy measures. The Convention also aims to encourage states to work to eliminate ‘cultural justifications’ for violence against women, such as ‘tradition’ or ‘honour’. We have written previously on the issue of ‘honour’ based violence and legislative changes in Pakistan to address this and please see this article here
The Council of Europe states in the Safe From Fear Safe From Violence FAQ document it produced in 2013 that ‘by accepting the Convention, governments are obliged to change their laws, introduce practical measures and allocate resources to create a zero tolerance zone for violence against women and domestic violence. Preventing and combating such violence is no longer a matter of goodwill but a legally binding obligation. The Convention makes it clear that violence against women and domestic violence can no longer be considered as a private matter but that states have an obligation to prevent violence, protect victims and punish the perpetrators. This will help victims all over Europe’.
On 12 March 2012, Turkey became the first country to ratify the Convention and 22 countries have now ratified. On 4 March 2016 the European Union Commission proposed that the EU itself ratify the Istanbul Convention (as in law it is, or regarded as, a legal entity equivalent to sovereign states). Although this is yet to occur, the EU accession should mean a mandate for better data collection at an EU level, accountability for the EU at the international level and encourage remaining EU member states to ratify or at least introduce appropriate domestic provisions. It does not however bind EU member states and is not signing on their behalf.
Barriers to ratification
The UK government had flagged the issue of extra-territorial effect as a significant barrier to the ratification of the Istanbul Convention. It recognised the requirement in Article 44 of the Istanbul Convention for domestic legislation to include provisions allowing the UK’s legislation potential extra-territorial effect so that jurisdiction could be established over an offence committed by, or against, a UK national outside of our territory.
The UK already exercises extra-territorial jurisdiction in relation to many serious offences, including several relevant to the Convention, such as forced marriage, FGM, trafficking and sexual offences against children. However, other offences like rape, sexual assault and domestic violence are not covered by extra-territorial effect. Significant changes in domestic law would be required for the extra-territorial effect to be properly asserted and the Istanbul Convention’s provision to have full effect as intended.
There were also concerns raised by the Government as to the necessity of ensuring a consistent approach to ratification across the devolved administrations of Northern Ireland, Scotland and Wales. These devolved administrations would need to be coordinated in order to ensure that ratification resulted in wholesale implementation of the Convention by each of our home nations, including the extra-territorial jurisdiction provisions.
Aside from the issue of extra-territorial effect, public opposition was mounted by some, such as Philip Davies MP, who opposed the ratification of the Istanbul Convention on the basis that it only addresses violence against women, as opposed to violence against both genders. Article 2 of the Istanbul Convention sets out that the protective measures of the Convention are to apply to all forms of violence against women, including domestic violence, identifying that these issues sadly affect women disproportionately. However, the Article goes further to say that “parties are encouraged to apply this Convention to all victims of domestic violence” thus widening the potential scope of the Convention to apply it in this way i.e. to protect all victims, irrespective of gender. The UK government would therefore have the option, and be actively encouraged, to apply its provisions in such a way that male victims would receive the same support as female victims as a result of the Convention’s protective provisions. It would be overtly discriminatory for the UK government to ratify the Convention without making it clear that it and reciprocal countries treated gender alike.