On 27 June 2022, the House of Lords is due to consider the following motion:

Baroness Hayter of Kentish Town (Labour) to move that this House takes note of the Council of Europe Convention on preventing and combating violence against women and domestic violence [Istanbul Convention], laid before the House on 17 May [2022].

1. What is the Istanbul Convention?

The Istanbul Convention is formally known as the ‘Council of Europe Convention on preventing and combating violence against women and domestic violence’. It was adopted by the Council of Europe Committee of Ministers on 7 April 2011 and opened for signature on 11 May 2011 at a session in Istanbul. The convention entered into force on 1 August 2014. The UK signed the convention on 8 June 2012. On 17 May 2022, the Home Secretary Priti Patel announced the UK’s intention to ratify the convention.

Article 1 of the convention states that its purposes are to:

  • Protect women against all forms of violence, and prevent, prosecute and eliminate violence against women and domestic violence.
  • Contribute to the elimination of all forms of discrimination against women and promote substantive equality between women and men, including by empowering women.
  • Design a comprehensive framework, policies and measures for the protection of and assistance to all victims of violence against women and domestic violence.
  • Promote international co-operation with a view to eliminating violence against women and domestic violence.
  • Provide support and assistance to organisations and law enforcement agencies to effectively co-operate in order to adopt an integrated approach to eliminating violence against women and domestic violence.

The Istanbul Convention has four pillars. Countries which have ratified the convention are required to take a range of measures around the following issues:

  • Prevention, including awareness-raising campaigns, promoting women’s empowerment, and training of professionals.
  • Protection, including regional and international complaints mechanisms, protection or restraining orders, and safe custody and visitation rights for children.
  • Prosecution. Measures on law enforcement and judicial proceedings include dissuasive sanctions for perpetrators, consideration of aggravating circumstances and legislation criminalising violence against women. On victim’s rights, measures include no victim-blaming, victims’ right to information and support and victims’ protection during investigation and judicial proceedings.
  • Co-ordinated policies, including inter-agency co-operation, human rights-based policies and comprehensive legislation and gender-sensitive policies

Currently, 35 member states of the Council of Europe have ratified the Istanbul Convention. There are 10 signatories which are yet to ratify the treaty (including the UK). Turkey withdrew from the treaty in July 2021. The Council of Europe has 46 member states

2. Ratification of the convention by the UK

On 17 May 2022, Home Secretary Priti Patel announced the UK’s intention to ratify the convention. In her statement she said that tackling violence against women and girls was “a government priority and these crimes have no place in our society”.

Ms Patel described the convention as a “gold standard international charter for the protection of women and girls”. She said that since signing the agreement in 2012 the UK had been working on strengthening its legal framework. The government was “now satisfied” that it had “the legislative framework and other necessary measures in place to meet the requirements of the convention”. The statement fulfilled a requirement under section 1(3) of the Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Act 2017 that the secretary of state make a statement when they had determined that the UK was compliant with the Istanbul Convention (for more information on the 2017 act see section 2.3 of this briefing).

The explanatory memorandum on the treaty, written by the government, sets out the main pieces of UK legislation that satisfy the requirements of the convention. It states that no further changes are required to UK legislation to allow the UK to ratify the convention.

2.1 Reservations to be made by the UK

The home secretary also said that the UK would be making two ‘reservations’ on provisions in the convention (as provided for under article 78(2) of the convention). A reservation is a declaration by a state, made when signing or ratifying an international treaty, that it reserves the right not to be bound by certain provisions. Reservations are formally defined in article 2(1)(d) of the 1969 Vienna Convention on the Law of Treaties. Article 78(2) of the Istanbul Convention includes specific provision for states to reserve “the right not to apply or to apply only in specific cases or conditions” the provisions in the following articles:

  • Article 30, paragraph 2;
  • Article 44, paragraphs 1.e, 3 and 4;
  • Article 55, paragraph 1 in respect of article 35 regarding minor offences;
  • Article 58 in respect of articles 37, 38 and 39;
  • Article 59.

Ms Patel said the UK would be making reservations on part of article 44, which relates to “the prosecution of UK residents for committing acts in another country which are crimes in UK law but not under the law of that other country”. She said that the reservation would reflect the provisions of the Sexual Offences Act 2003 and the Domestic Abuse Act 2021. She also said the UK would make a reservation on article 59. She explained that the UK wanted to be able to ratify the convention before it had concluded its evaluation of its support for migrant victims scheme. The government would then “consider the policy issues involved substantively, and whether that reservation should continue”.

Article 44 of the convention relates to extraterritorial jurisdiction and dual criminality. The explanatory memorandum sets this out as follows:

Article 44(1) requires the UK to take the ability to prosecute UK nationals and people who live in the UK but are not UK nationals, for certain crimes which they commit overseas. This is often referred to as ‘extraterritorial jurisdiction’. The UK is compliant with article 44(1). In UK law extraterritorial jurisdiction usually applies only when the offending behaviour is a criminal offence in the country where it happened as well as in the UK. This is known as ‘dual criminality’. Article 44(3) states that we may not apply a dual criminality requirement for offences encompassed by articles 36 (sexual violence, including rape), 37 (forced marriage), 38 (female genital mutilation [FGM]) and 39 (forced abortion and forced sterilisation). Dual criminality is the norm in UK law when dealing with extraterritorial jurisdiction, because it is not generally right to prosecute someone for doing something in another country for which they could not be prosecuted in that country.

There are sometimes good reasons to depart from the dual criminality rule, if there is an offence which is not a crime in a number of countries. That is true for forced marriage and FGM, and so we do not have dual criminality for those crimes in UK law. We can therefore prosecute a UK national or resident for carrying them out in a country where they are not crimes. This means that we are compliant with Article 44(3) to the extent that it relates to offences covered by Articles 37 and 38.

The UK would use the reservation on article 44(3) to preserve dual criminality for some offences. The reservation would apply to crimes encompassed by article 36 (sexual violence, including rape), when committed by UK residents who are not UK nationals, and crimes encompassed by article 39 (forced abortion and forced sterilisation). The explanatory memorandum states that 12 other countries had made such a reservation, including France and Sweden. Paragraphs 9.4 to 9.9 of the explanatory memorandum go into further detail on this reservation.

Article 59 of the convention relates to residence status. The article states that parties should provide victims with an autonomous residence permit where their residence status depends upon their spouse or partner:

Parties shall take the necessary legislative or other measures to ensure that victims whose residence status depends on that of the spouse or partner as recognised by internal law, in the event of the dissolution of the marriage or the relationship, are granted in the event of particularly difficult circumstances, upon application, an autonomous residence permit irrespective of the duration of the marriage or the relationship. The conditions relating to the granting and duration of the autonomous residence permit are established by internal law.

The government has said that its position on article 59 is under review “pending the results and evaluation of the support for migrant victims scheme”. The scheme has “provided accommodation and wrap around support for migrant victims of domestic abuse with no recourse to public funds, as well as providing the data required to inform subsequent policy decisions”. The scheme was launched on 1 April 2021. The government stated that it would conclude before summer 2022. The government has said that “in order to enable swift ratification”, it has decided to apply a reservation to the whole of article 59. It said this decision would be reviewed:

This decision is without prejudice to the substantive decisions which the government will make on the matters relating to article 59, in the light of the results and evaluation of the support for migrant victims scheme. As part of that process ministers will revisit the reservation on article 59, with the option of withdrawing it under article 78(4).

Article 79 of the Istanbul Convention sets out that reservations are valid for a period of five years but can be renewed. It also sets out certain notification periods for the state to inform the secretariat general of the Council of Europe of its intention to uphold, amend or withdraw any reservations it may have.

2.2 Ratification process

The treaty was laid before both Houses on 17 May 2022. It has been laid under section 20 of the Constitutional Reform and Governance (CRAG) Act 2010.

The CRAG Act 2010 contains requirements about what must happen in UK law before the government can ratify a treaty. The usual process, as set out in section 20(1), is that a treaty cannot be ratified unless:

  • a minister has laid a copy before Parliament;
  • the treaty has been published in a way that the minister thinks appropriate; and
  • a period of 21 sitting days has elapsed since the day after the treaty was laid before Parliament, without either House resolving that it should not be ratified.

Should the Commons resolve against ratification, the minister may lay a statement indicating that the minister is of the opinion that the treaty should nevertheless be ratified and explaining why. A second period of 21 sitting days is then triggered, during which the Commons may resolve again against ratification. Similarly, the minister may then lay another statement. In such a way the Commons theoretically has the power to delay ratification indefinitely.

The House of Lords does not have this power. Should the Lords resolve against ratification and the Commons not resolve against ratification, then the treaty may be ratified “if a minister of the crown has laid before Parliament a statement indicating that the minister is of the opinion that the treaty should nevertheless be ratified and explaining why”.

In her statement, Priti Patel said that she expected the UK to have ratified the convention by 31 July 2022.

2.3 Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Act 2017

The Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Act 2017 was introduced in the House of Commons as a private member’s bill by Dr Eilidh Whiteford (the then SNP MP for Banff and Buchan). It was sponsored in the House of Lords by Baroness Gale (Labour).

The act’s purpose is to encourage the government to ratify the Istanbul Convention. It requires the secretary of state to lay a report before each House setting out the steps required to enable the UK to ratify the convention, and the timescale within which this is expected to happen.

Section 2 of the act requires the secretary of state to lay a report before both Houses each year until ratification, setting out any changes to the timescale contained in previous reports; administrative measures taken by the government to enable the UK to ratify the convention; legislative proposals brought forward to enable the UK to ratify; and measures to be taken and legislation required to enable the UK to ratify the convention.

The first annual report under section 2 of the act was published on 1 April 2017. The most recent (and fifth) annual report on progress towards ratification was published on 1 November 2021.

3. International Agreements Committee: Report

The House of Lords International Agreements Committee published a report on the Istanbul Convention on 17 June 2022 as part of its scrutiny of international agreements. The committee reported the agreement to the special attention of the House because “it is politically important and gives rise to issues of public policy that the House may wish to debate prior to ratification”. It welcomed ratification but said it regretted that it had been 10 years since the UK’s signature in 2012.

The committee also said that it was “concerned” about the government’s proposed reservations. It recommended “in particular” that the reservation “relating to migrant victims of domestic violence should be lifted as soon as possible, with clear criteria established to indicate the circumstances in which the reservation should be withdrawn”.

On the reservation on dual criminality, the committee referenced one of the government’s examples from its explanatory memorandum regarding offences under article 36, where the government had said removal of the principle could be problematic:

The EM [explanatory memorandum] gives some examples where the government considers the removal of dual criminality in respect of sexual violence offences to be problematic if applied to non-UK nationals resident in the UK. It cites the example of a German national resident in the UK “who on return to Germany for a short period had sex with their 15-year-old partner, which is legal in Germany, where the age of consent is 14”. The EM also contends that the government’s approach means that “it is less likely that other countries will make reciprocal provisions which affect our nationals in ways which we would not welcome”.

However, the committee argued that the government’s rationale for seeking to maintain the rule of dual criminality for article 39 was less clear:

The government provides a rather less clear-cut rationale for why it is seeking to maintain the rule of dual criminality in respect of UK residents who have committed forced abortions and sterilisations abroad. The EM [explanatory memorandum] notes that the Domestic Abuse Act 2021 preserved the dual criminality requirement in respect of offences that would fall under this part of the Convention. Hence, prosecution of a UK resident (national or non-national) for forced abortion or sterilisation is only possible if it also qualifies as a crime in the other country. The EM notes, “However, a dual criminality requirement should not be a barrier to prosecution as we know of no jurisdiction which does not have general offences of violence equivalent to ours”.

The committee called on the government to “provide a more detailed justification for the reservation entered in respect of forced abortion and sterilisation offences”.

On the reservation on residence status, the committee said it did not see “any justification” for this and that it regretted that the government had not ensured the convention could be ratified without it:

We do not see any justification for the reservation regarding the obligation to provide autonomous residence permits to migrant women whose residency depends on that of their spouse or partner and who have been victims of domestic abuse, and regret that the government did not ensure that the convention could be ratified without such a reservation.

It also said that whilst the support for migrant victims scheme pilot was important, it was not clear how this linked to the obligation in the convention:

It is also far from clear to us how the pilot scheme, while important in ensuring that local authorities do not discriminate in their provision of support to migrant victims of domestic violence, ties into the obligation to grant autonomous residency permits to those women whose residency status is dependent on that of their partner or spouse.

The committee said that the government should justify its decision and explain how it would measure the success of the support for migrant victims scheme pilot, and a timetable for reviewing the reservation:

We call on the government to justify the exclusion and set out (1) how the pilot interacts with the obligation under the convention to provide an autonomous residence permit, (2) the criteria that will be used for (a) measuring the success of the support for migrant victims scheme pilot and (b) the withdrawal of the reservation, and (3) a timetable for reviewing the reservation as soon as possible.

The committee said that this was the first international agreement it had considered where the government had stated its intention to enter formal reservations. It noted that this was a prerogative power and that Parliament had no role in authorising reservations under the process in the CRAG Act 2010.

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Cover image by Priscilla Du Preez from Unsplash