No Legal certainty: every element of the offence is open-ended

Criminal offences often begin with broad words such as “any conduct”. The narrowing is meant to come from the elements that follow. In this Bill, none of them narrows: the protected identity is self-reported and non-exhaustive, the intent element covers exploration, “abuse” is undefined, the listed pressures are undefined and non-exhaustive, and the harm threshold can be met by existing distress.

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Nor does the Bill require fault as to the elements that make the conduct criminal. The defendant need not know or intend that the conduct is abusive, since abuse is judged objectively, after the event (cl. 1(5)). The defendant also need not know or foresee that it will cause serious harm or distress (cl. 2(1)). The only mental element is the intention in cl. 1(2), which covers exploration (concern 3).

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The Bill is stricter on accessories. A person who encourages or assists an abusive conversion practice must intend to encourage or assist an abusive practice; foreseeability is not enough (cl. 3(2)). On its wording, the person who carries out the conduct can therefore be convicted on less than the person who encouraged it.

Several reassurances about the Bill’s scope appear only in the Explanatory Notes. Courts may read Explanatory Notes as context (R (Westminster City Council) v NASS [2002] UKHL 38), but they cannot narrow statutory words that are clear and broad, and criminal statutes are construed strictly. Where the Government intends a narrower meaning, it should be on the face of the Bill.

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Effects: A parent, teacher or practitioner cannot know in advance whether ordinary conduct is criminal. A parent who intends no harm, and does not regard a conversation as abusive, may learn only after the event that a court does. The law requires criminal offences to be clear enough for people to foresee whether their conduct is lawful (Article 7 ECHR; Rimmington). This Bill leaves that to be decided after the event.

At a mimimum