Domestic Abuse Bill (Fifth sitting)
Wednesday 10th June 2020
(3 years, 10 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 10 June 2020 - (10 Jun 2020)
The Chair
I have a few opening remarks. For the benefit of the shadow Minister, we are definitely stopping for lunch. This sitting will run until 11.25 am, so that Members can get to the main Chamber by the time it sits, if they so wish. Please turn your electronic devices on silent. Hot drinks are not allowed during sittings. Social distancing is exceptionally important, so please maintain it. If anyone is unhappy about the social distancing arrangements, they should let me know—we take it very seriously. Obviously, you cannot hand notes to Hansard now, so please email electronic copies of any speaking notes to hansardnotes@parliament.uk.
Clauses 11 and 12 ordered to stand part of the Bill.
Clause 13
Annual reports
Peter Kyle (Hove) (Lab)
I beg to move amendment 45, in clause 13, page 8, line 16, leave out from “must” to “on” and insert “report annually to Parliament”.
This amendment changes the requirement for the Commissioner to submit an annual report to the Secretary of State to a requirement to report annually to Parliament.
The Chair
With this it will be convenient to discuss amendment 46, in clause 13, page 8, line 25, leave out subsections (3) to (5) and insert—
“(3) The Commissioner must arrange for a copy of every annual report under this section to be laid before Parliament.
(4) Before laying the report before Parliament, the Commissioner must ensure that no material is included in the report which—
(a) might jeopardise the safety of any person, or
(b) might prejudice the investigation or prosecution of an offence.
(5) The Commissioner must provide a copy of the report to the Secretary of State.”.
This amendment is linked to Amendment 45.
Peter Kyle
It is an absolute pleasure to serve under your chairmanship, Mr Bone. I do not know about you, but I like to start every day with a quote from an inspirational political figure, and I thought today there could be no better inspirational political figure than the Minister for safeguarding. On 18 September 2019, the Minister said:
“The focus of the Commissioner will be to stand up for victims and survivors, raise public awareness and hold both agencies and government to account in tackling domestic abuse.”
That is key: to hold Government to account. The most important Government Department that the commissioner needs to hold to account will be the Home Office.
Yesterday we explored the independence and importance of the commissioner. I will not go over all the arguments made yesterday, as we want to make some progress today, but we established that it is absolutely essential. For the commissioner to be successful in the role, she will need a degree of independence from the Home Office. Amendments 45 and 46 would deliver the independence that she will need.
The Minister is right that the role of the commissioner is to hold Government to account. An essential part of the commissioner’s role is to advise, support and inform, and at times to challenge. Nothing must stand in the way of her being able to perform that challenge. Holding to account sometimes involves disagreeing. Sometimes it involves saying publicly, “I believe they are wrong,” or, “I believe they should be doing things differently.”
We need the commissioner to be 100% focused on giving a voice to victims and survivors, and that is not possible if they are worried about the reaction of the people paying their wages. That is true for any other organisation up and down the country, and it is true for this appointment as well. The thing that makes the biggest difference to a survivor’s life is the way that public services respond to their needs.
Most of the commissioner’s time will be spent trying to improve and change things. By definition, improvement is change, so the role of the commissioner will be to change Home Office policy. The vast majority of that change must come from the Home Office. Yet the Home Office pays the bills, sets the budget, hires or fires the commissioner and sets the framework. The Home Secretary is, in essence, the commissioner’s line manager, and even gets to mark her homework.
The Minister has drawn the Committee’s attention to the exhaustive prelegislative process that the Bill has been subjected to, and it is true that the Bill is one of the most heavily scrutinised pieces of legislation—even before arriving in the House—of any in recent years. However, what if every part of that exhaustive process comes to the same conclusion—as, when it comes to the Home Office, it has? If every part of prelegislative scrutiny results in saying the same thing but the Home Office does the exact opposite, we must ask ourselves what the point of all the prelegislative scrutiny was.
As I have said, the commissioner is popular—everyone wants a piece of the commissioner. Everyone wants her to report to them or to someone else. The Home Affairs Committee wants her to report to Parliament. The Joint Committee on the Draft Domestic Abuse Bill wants her to report to the Cabinet Office. However, they all have one thing in common: none of them thinks that it is appropriate for her to report to the Home Office.
That can be seen in the prelegislative scrutiny. I will quote from paragraph 306 of the Joint Committee’s report. It mentions two names: Emily Frith, who worked for the Children’s Commissioner, and Kevin Hyland, the former Independent Anti-Slavery Commissioner. It states:
“Emily Frith noted that the Children’s Commissioner had to send draft reports to the Secretary of State for Education before publication, and that the Secretary of State had to approve its annual strategic plan. She stated, ‘We would like to see both those things removed, because that would give the commissioner much more independence to report directly to Parliament.’”
That was with reference to the domestic abuse commissioner. The report continues:
“Kevin Hyland told us that, during his reappointment, he was criticised for giving evidence to a parliamentary committee. He suggested that, if the Commissioner were to be responsible to a parliamentary committee rather than a government department, then they would be able to express concerns more openly.”
Paragraph 307 states:
“In its report on domestic abuse, the Home Affairs Committee recommended that the Commissioner be accountable, and report directly, to Parliament rather than to Government, and should be independently accommodated and resourced.”
The safeguarding Minister drew the Committee’s attention to the process, and it is incumbent on us to heed the Joint Committee’s advice. It did not mince its words, and concluded, in paragraph 323, that it had
“grave concerns about the proposal for the Commissioner’s role to be responsible to the Home Office.”
It recommended in paragraph 324
“that the Commissioner be responsible to the Cabinet Office”.
The Opposition—[Interruption.] I reassure the Committee that my cough is the result of the London plane trees outside Parliament, not anything else that might be making its way around the city. [Laughter.] I am well protected by the Brighton Gin hand sanitiser that sits before me.
The Opposition accept the clear advice of both parliamentary inquiries, which involved both Houses of Parliament, and their exhaustive deliberations. Since those inquiries completed, Britain has left the European Union and the Cabinet Office is consumed—some might say overwhelmed—by the challenges posed by the negotiations and preparations for our future relationship. It is unlikely that a domestic abuse commissioner would find a suitable home there right now, bearing in mind that the Joint Committee reported almost two years ago.
We accept the clear recommendation of the Home Affairs Committee that for matters of substance the commissioner should report directly to Parliament. I feel certain that if the Joint Committee were reporting today, rather than two years ago, it would totally agree.
Amendment 45 and 46 are straightforward. Amendment 45 would simply exchange “Secretary of State” for “Parliament” for the submission of the commissioner’s annual report. Amendment 46 achieves a similar outcome but has regard to a concern raised by the Minister yesterday, by requiring the commissioner by law to ensure that no material be included that might jeopardise the safety of anyone or prejudice an investigation or prosecution.
These amendments refer to the annual report. We do not cover all the different areas of reporting. These amendments are intended to probe the issue of accountability and independence and will not be pressed to a vote. We urge Ministers to look afresh at the conclusions of pre-legislative Committees and, if they are in a generous mood, to ensure that we can argue for the amendments, engage with them as they stand and keep an open mind as to whether the role of the commissioner could be strengthened, delivering an outcome that I believe would put it in a much safer, stronger and more secure position, to enable the commissioner to do their job. My God, the people whom the commissioner seeks to give a voice to need the strongest possible voice that we can muster.
There is one final aspect of the relationship between the Home Office and the commissioner that I want to raise. I do this carefully and with respect to all hon. Members, because I know that when we talk about individuals it is a sensitive issue. I do not want to squander the constructive nature of our deliberations so far, but I believe that this is relevant and important. This relates to the nature of the Home Secretary and issues raised about her own personal behaviour in recent times.
At this time there are two separate formal processes underway that involve multiple allegations of abusive behaviour by the Home Secretary: one is an internal civil service inquiry being conducted by the Cabinet Office; and the other is a legal tribunal by the Home Office’s former most senior official for constructive dismissal. Both are ongoing and I will say nothing that will prejudice either inquiry.
The Chair
Order. I liked the part where you said that you will say nothing on this issue, because I am not really sure what the relevance is to amendment 45 to clause 13.
Peter Kyle
Mr Bone, I would like to explain. We are talking about the establishment of a commissioner for abuse, reporting directly to the Home Secretary. The amendment seeks to change the line management of the commissioner. I believe I am treading lightly as I progress through this. I think it will become apparent why I want to put this on the record.
As I say, we will not push the amendment to a vote, but there are arguments here that I believe need to be made. Many people who have contacted me are aware of the irony of having a commissioner for abuse reporting to somebody who has two active investigations into abusive behaviour. I will tread lightly.
The Chair
Order. I am afraid that you will not tread lightly, because you have made the point. I understand the argument you are making, but we are talking about the post of Home Secretary, not an individual. The point is on the record and I think we should now move on.
Peter Kyle
I am very respectful of your chairmanship. I will move on and conclude my remarks. I have put on the record what I wanted to say, which was to explain delicately the parallels between the comments that were made in public statements relating to the Home Secretary. What I said—I will not repeat it—was meant to acknowledge your point, Mr Bone, that this legislation will almost certainly last for a generation and will therefore see successive Home Secretaries. A particular issue right now is the character of the one who—
The Chair
No, I am not having this. I do not want to spoil the hon. Gentleman’s speech, but I am going to. I thought he was making a very well-argued speech until he got to that point, which I think is out of order. In fact, I am telling him that it is out of order. We will now move on.
Peter Kyle
I appreciate that. In our debates yesterday, during an exhaustive set of speeches about the independence of the role of the commissioner, the case was made that it is extremely important that the link between independence and effectiveness is categoric. That has been exhaustively investigated by two previous inquiries by the Home Affairs Committee and by a Joint Committee of both Houses of Parliament. The direct link between effectiveness in that role and where it reports—its independence—comes from a central role of the commissioner: to give voice to people who have, for too long, been shut out of public debate. Victims and survivors of domestic abuse are some of the most disempowered people in our society.
The reason that independence is important is that there will be times when the commissioner needs to give voice to people who are suffering abuse but comes into conflict with current Home Office policy. That area is never more acute than on the issues of migrant women, legal aid and the experience of women at the hands of law enforcement agencies. Overwhelmingly, there will be a constructive relationship between the Home Office, the Home Secretary and the commissioner—there is already a good and fruitful working relationship between the Home Office and the commissioner designate—but there will be times when we need the commissioner to be an unflinching advocate for survivors and victims and to be 100% focused on the needs of those individuals, and not even 1% focused on the delicacies of managing a complex set of relationships within the Home Office.
There are also technical reasons why that is seen as more effective. As we heard in evidence, reporting to the Home Office is a complex relationship. The Home Office is a complex organisation with numerous officials and various levels that can have direct relationships with the commissioner. The commissioner will have a handful of staff, while the Home Office will have thousands, and although those thousands will not all report directly, dozens will—that is a very high-maintenance reporting line.
We will not push the amendment to a vote, but I urge the Minister to assure us that she will use her influence at the Home Office to ensure that the reporting line is effective and efficient and that the commissioner is not overwhelmed with different people asking for different things. As we all know, the civil service rightly needs to protect taxpayers’ money, and people’s liberty and safety, so it can sometimes overwhelm small organisations with bureaucracy. We want to ensure that the commissioner has all the freedom to act in a way that fully represents the victims and survivors for whom she is there to give voice.
Nickie Aiken (Cities of London and Westminster) (Con)
I understand the concerns that you raise about effectiveness and independence. We have a Children’s Commissioner and a Victims’ Commissioner, and they are both very independent. What makes you think—
The Chair
Order. It is not supposed to be “you”, because I am “you”—you are supposed to speak through me.
Nickie Aiken
Yes, Mr Bone.
What does the hon. Gentleman think? Why would this commissioner be any different in independence and effectiveness compared with the Children’s Commissioner, the Victims’ Commissioner or any other commissioner that the Government may have?
Peter Kyle
I welcome the hon. Lady’s intervention. As I said yesterday, I remember my first Bill Committee well. I assure every Member sitting on a Bill Committee for the first time that they are in the safest of environments if they want to stand up to speak—and, like me, to make mistakes in an honest, open and sincere way. Believe me, it is much better to do so here in Committee than over there in the Chamber.
The hon. Lady is completely right about other commissioners, including the two she named. In fact, the Victims’ Commissioner reports directly to a Department. The Children’s Commissioner has a slightly different reporting line, because more aspects of her role involve reporting directly to Parliament. What those commissioners have in common, however, is that they have both given evidence to the Joint Committee and to the Select Committee on Home Affairs, and one commissioner gave evidence in our evidence session only last week.
Both those commissioners believe that greater independence for the domestic abuse commissioner is desirable. Based on their experience of being commissioners, they believe that that is more desirable, and they have both said so on the record in the firmest possible terms. That reflects on their own positions—they would like more freedom in their roles—and they are generously willing to share their experience with this Committee so that we can get it right for the new commissioner. We got it mostly right in previous times, but there is always room for improvement and, given on their experience, the issue of independence is something they would like to see improved.
With that, Mr Bone, I conclude my remarks.
The Chair
I thank the hon. Gentleman, and I wish him well with the cough because I suffer from exactly the same problem. You never know when it is going to come on—if I start to have a coughing fit, please, that is the reason.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
It is a pleasure to serve under your chairmanship, Mr Bone.
I thank the hon. Member for Hove for emphasising yet again the exhaustive scrutiny that the Bill has received. When we look over the history of the Bill and its scrutiny, we see that he is right to say that few other pieces of legislation in recent history have received such scrutiny. Yesterday, the hon. Member for Birmingham, Yardley said that we had “got away with it” this time with the appointment of Nicole Jacobs, but, on behalf of the commissioner, I should say that it is not a question of getting away with it.
We had a recruitment process in line with the public appointments process, which is carefully managed and objective. I interviewed Nicole myself, and she was the stand-out candidate. That is why I advised the Home Secretary to appoint her. I know that the hon. Member for Hove does not mean to do this, but the more it is suggested that Nicole, the designate commissioner, will somehow not be independent, the more I fear that that risks undermining her. We have to accept that Ms Jacobs is a professional, highly qualified and highly experienced person in the world of domestic abuse. We should welcome her appointment, which shows that the system has worked.
Jess Phillips (Birmingham, Yardley) (Lab)
I absolutely echo the Minister’s words about Nicole Jacobs—and, I am sure, anyone who had been given the position.
May I ask if that same process was followed in the appointment of Kevin Hyland as the Independent Anti-slavery Commissioner? Where does the Minister feel that that relationship broke down, to the point that his evidence on this Bill led to concerns that are now shared by me, Parliament, my hon. Friend the Member for Hove, the Home Affairs Committee and so on?
Victoria Atkins
I cannot speak to that appointment process, because I was not the Minister at the time, although I know that, personally, I had a good relationship with Mr Hyland at the tail end of his tenure.
Clearly, however, I was involved in the appointment process for the current Anti-slavery Commissioner, Dame Sara Thornton. I asked officials to double-check this: I do not believe that she has voiced any concerns about her independence in the year—it must be at least a year—that she has been in role. I remind the Committee that Dame Sara is a former chief constable and was chair of the Association of Chief Police Officers before the National Police Chiefs Council was set up. She is, again, a very highly qualified, highly experienced professional with decades of public service under her belt.
In exploring these issues, I would not for a moment wish to risk undermining the work or reputations of Dame Sara, Ms Jacobs or any of the commissioners that we have heard reference to.
Jess Phillips
There is absolutely no sense that anybody here wishes to undermine the commissioners—we also work with those commissioners. We wish to empower them. We are concerned about relationship breakdown, and not necessarily with the current commissioner. Can the Minister speak more to the relationship with the previous Anti-slavery Commissioner, which definitely broke down?
Victoria Atkins
Forgive me, but I am returning to the Bill, which is what we are concerned with now.
I am very happy to talk about the Children’s Commissioner, who is sponsored by the Department for Education. I do not know whether anyone has been listening to the news recently, but I do not think anybody could accuse Ms Longfield of not being independent or not expressing her views pretty forcefully and vehemently. Only yesterday there was a statement in the House about the issues she has raised.
Peter Kyle
I am keen for us not to fall into the bearpit that the Chair has already identified. We are not talking about the specific officeholder; we are talking about the role. We need to make sure that we get the role right so that future holders of the office are able to exercise powers correctly and so that the powers encourage a certain type of behaviour, rather than relying on a character who can find their way through unideal rules, making the best of it.
Victoria Atkins
I am absolutely focusing on the powers available. Ms Longfield is exercising her powers as a commissioner who is sponsored by the Department for Education, just as Dame Vera Baird is—I think the hon. Member for Birmingham, Yardley referred to Dame Vera’s political background. I have to say that she was appointed by a Conservative Government. She is very capable and experienced, with decades of public service under her belt. Again, the appointments process identified the correct candidate and she uses her powers to great effect. No one can accuse Dame Vera of holding back when she feels there is a need to hold the Government to account.
The point is that the powers and the offices already exist, they work, and it is on that basis that we have listened to the Joint Committee’s recommendations. We have made changes between the first iteration and this iteration of the Bill. For example, clause 13 has been changed. It was the case that the Home Secretary would lay a copy of the report before Parliament, but we listened and took on board what the Joint Committee recommended. We have now changed that so that it is the commissioner who must arrange for a copy of her report to be laid before Parliament—it is the commissioner who decides when that happens, within the realms of the reporting framework and the financial year and so on. It is the commissioner who decides what is in that report, with that tiny, narrow exception that we discussed yesterday, which mirrors the previous clauses. I am grateful that the hon. Member for Hove withdrew that amendment; I took it that he was satisfied with my explanation.
I would very much argue that the domestic abuse commissioner is empowered. She has oversight by a Department—the Home Office—as does pretty much every other commissioner, with the three exceptions that we have identified, including the Parliamentary and Health Service Ombudsman, which by definition reports directly to Parliament. We have followed that model, but adapted it to take into account the matters raised by the Joint Committee.
In recommending the clause to the Committee, I pray in aid the fact that, when Ms Jacobs appeared before the Public Bill Committee in the previous Session, she was asked about sponsorship of her office by the Home Office. She replied that she felt
“confident about the hosting at the Home Office.”––[Official Report, Domestic Abuse Public Bill Committee, 29 October 2019; c. 9, Q10.]
In separate evidence to the Public Bill Committee last October, Zoë Billingham, who is one of Her Majesty’s inspectors of constabulary and fire and rescue services, said:
“The fact that I have a relationship with the Home Office does not undermine my personal statutory independence as an HMI or our organisation’s independence.”––[Official Report, Domestic Abuse Public Bill Committee, 29 October 2019; c. 43, Q70.]
I fully appreciate why hon. Members want to debate and explore the issue, but I hope that they will be reassured by the fact that office holders do not have a problem, and feel confident about the hosting at the Home Office. What is more, we have listened to the Committee and adapted the measures so that the commissioner has the direct relationship with Parliament that Members feel is so important.
Peter Kyle
I briefly make the point that you cannot have it both ways—or, rather, the Minister cannot have it both ways. You, Mr Bone, can obviously have it any way you like.
The Minister cannot say that the commissioners speak up freely, and give examples of that, but ignore what they say, and have a reporting line for them. Every one of the commissioners that she mentioned believes that the commissioner for domestic abuse should report somewhere other than the Home Office.
The Minister is right to quote Nicole, because she is a formidable and generous advocate. She has been given the role, and was clear from the outset about the reporting lines, which she accepted when she began to apply for the job. However, I remind the Minister that last week, in giving evidence, she made it clear in her opening exchange with me that she would welcome greater independence from the Home Office. She was clear about that.
I will lay the argument to rest, and accept the arguments of the Minister. I hope that she sees the sincerity with which we make our argument, which in no way impugns our belief that Nicole Jacobs will be a fantastic advocate. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 ordered to stand part of the Bill.
Clause 14
Duty to co-operate with Commissioner
Victoria Atkins
I beg to move amendment 30, in clause 14, page 10, line 2, after “London” insert “in its capacity as a local authority”
This amendment clarifies that the reference to the Common Council of the City of London in the definition of “English local authority” in clause 14 is to the Common Council in its capacity as a local authority.
Victoria Atkins
I can be brief. The amendments are technical ones to clauses 14 and 57. Clause 14 uses the term “English local authority” while part 4 of the Bill uses the term “local authority”. In both cases, the definition of those terms includes the Court of Common Council of the City of London.
The City of London Corporation has both public and private functions, so it is appropriate that public legislation should apply to it only in respect of its public functions. The amendments to clauses 14 and 57 therefore provide that the references to “the Common Council” relate to its capacity as a local authority.
Amendment 30 agreed to.
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
Clause 14 is about the duty to co-operate with the commissioner. We addressed parts of it yesterday. It is an absolutely crucial part of the commissioner’s powers. The commissioner may specify public authorities as laid out in subsection (3) to co-operate. We can add to the list in due course by regulations, but the public authorities listed in subsection (3) may not be removed. In this case I would recommend the clause to the House, although I appreciate that the hon. Member for Birmingham, Yardley might have some things to say about it.
Jess Phillips
We went over this extensively yesterday. I just want complete clarity for the record—don’t worry, I will not go on for 50 minutes, although I could. I want to feel absolutely certain about this issue. When the commissioner says something to any one of the authorities—the list is absolutely fine—and they have the duty to respond, where in the system does the duty to act come in? Does that fall within the reporting line to the Home Secretary, who will then help the commissioner to ensure that action is taken? As somebody who often seeks a response from the Government, what I am actually seeking is action.
Victoria Atkins
Yes, of course. There are organisations on the list that are directly accountable to the electorate, such as local authorities, or are accountable via elected officials such as police and crime commissioners. We expect those bodies to be mindful and act on what the commissioner recommends. There will be consequences for them at the ballot box if they do not do so, which is the case for Ministers as well as any other Member of Parliament.
As for the other bodies, we are mindful of the independence of the police, the British Transport Police and organisations such as the Criminal Cases Review Commission, so there will be a delicate balancing act between what Ministers can do and the independence of those organisations. As with other commissioners, where a public body is given fully reasoned recommendations by the commissioner in her report, they would be expected to respond to that, and that includes action.
Question put and agreed to.
Clause 14, as amended, accordingly ordered to stand part of the Bill.
Clauses 15 to 18 ordered to stand part of the Bill.
Clause 19
Power to give a domestic abuse protection notice
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
Clause 19 signifies the beginning of part 3 of the Bill, which introduces domestic abuse protection notices and domestic abuse protection orders. These are very important aspects of the Bill. It may help if, before turning specifically to clause 19, I recap why we are creating the new protective orders, and the significant value that they will provide to victims and to agencies in holding perpetrators to account.
Responses to our public consultation in 2018 emphasised that the multitude of orders currently available in domestic abuse cases, which include non-molestation orders, occupation orders, restraining orders and domestic violence protection orders, can be confusing for victims and, indeed, practitioners. Each of those orders is available in different circumstances, does different things and has different consequences for breach. No single order provides victims with the comprehensive protection that they need to rebuild their lives. Our intention, in creating the new DAPOs, is to bring the strongest elements of the existing protective order regime together in one comprehensive and flexible order, and for DAPOs to become the go-to order in domestic abuse cases.
Clauses 19 to 23 create the new domestic abuse protection notice, which is designed to provide victims with immediate protection and breathing space from the perpetrator following a crisis incident. The notice will be issued by the police and could, for example, require the perpetrator to leave the victim’s home for up to 48 hours. Issue of the notice triggers an application by the police to a magistrates court for a DAPO, an order, which, if made by the court, provides the victim with longer-term protection.
Unlike the current domestic violence protection notices and orders, the new domestic abuse protection notice and order can be used to protect victims from all forms of domestic abuse and not just from violence or the threat of violence. However, it will not always be the case that there is a single crisis incident that necessitates the issuing of a notice by the police. Furthermore, we know that some victims do not want to involve the police in their case at all; they just want the abuse to stop. That is why the Bill provides for a range of flexible application routes to obtain an order, enabling not just the police but victims themselves or any other person, with the leave of the court, to apply for a DAPO. In addition, it is open to a judge or magistrate to decide to make a DAPO as part of existing proceedings in the criminal, civil or family courts.
The DAPO is designed to be fully flexible, so that it can be tailored by the court to meet the needs of the victim, based on the specific facts of each individual case. That is one of the order’s most important characteristics. Unlike the existing domestic violence protection orders, which have a maximum duration of just 28 days, DAPOs can be flexible in duration and can therefore provide victims with longer-term protection if needed. It will be for the court to determine the duration of an order or, if necessary, to decide that it should be open-ended until such time as the court makes a further order.
The Bill also provides courts with the flexibility to attach to the order not only restrictions but positive requirements, depending on what is necessary in each case to protect the victim from abuse. For example, the conditions attached to a DAPO could range from basic non-contact requirements and an exclusion zone, right up to requirements to wear an electronic tag or to attend a behaviour change programme. Crucially, breach of an order will be a criminal offence, subject to a maximum penalty of five years’ imprisonment.
We know how important it is to get the implementation of the new orders right and to ensure that the whole process is as simple as possible for victims, the police and others to navigate. That is why we will issue statutory guidance on the orders and also pilot them in a small number of areas prior to any national roll-out. The Bill expressly provides for that.
We must acknowledge, however, that the creation of the new protective order will not by itself deliver a better response to domestic abuse. The success of DAPOs will rest on a strong, multi-agency approach to ensure that these orders are the protective tool that they are intended to be. Everyone will have a role to play in this: the justice system, other statutory agencies, and specialist domestic abuse organisations will be expected to work together to manage those who are subject to an order and, most importantly, keep victims and their children safe.
Clause 19 confers a power on a police officer to issue domestic abuse protection notices. It sets out the two conditions that must be met in order for the police to issue a notice. The first condition is
“that the senior police officer has reasonable grounds for believing that P”—
the perpetrator—
“has been abusive towards a person aged 16 or over to whom P is personally connected”,
in line with the definitions we discussed yesterday, contained in clauses 1 and 2.
As I have mentioned, unlike with the current domestic violence protection notice, this clause provides that the new notice can be used to protect victims from all forms of domestic abuse, not simply from violence or the threat of violence, which the Joint Committee commented
“removes a key weakness of the previous scheme.”
Furthermore, it does not matter if the abusive behaviour that provides grounds for the issue of the notice took place outside England and Wales.
The second condition is that the police officer
“has reasonable grounds for believing that it is necessary to give the notice to protect that person from domestic abuse.”
The requirements imposed by the notice, which are provided for in clause 20, have effect in all parts of the United Kingdom, not just in England and Wales. For example, if a notice required the perpetrator not to make contact with the victim in any way, the perpetrator would breach the notice by sending a text message or email to the victim from Scotland. I therefore commend the clause to the Committee.
Jess Phillips
I feel I have been remiss in not having yet said that it is an absolute pleasure to serve under your chairship, Mr Bone, as others have. I will not start with an inspirational quote, though I am sure you have given plenty in your time.
I thank the Minister for a detailed and forensic walk through the new DAPO system. It can sometimes feel like we say all these things in all these different scrutiny bodies, but absolutely nothing comes of it; however, from what the Minister has walked us through, I can see how different systems have evolved over time and over the course of lots of conversations. For people who love scrutiny, worry not: it does sometimes get heard.
I feel very hopeful about the new system of DAPNs and DAPOs. The Opposition, along with most witnesses who reported to the Joint Committee, strongly support any tool that gives the police and courts greater powers to protect victims of abusive relationships. We very much welcome the fact that the new orders just require abusive behaviour—rather than violent behaviour—as a precondition, although time will tell how that plays out on the ground. For too long, judges have looked for evidence of scars and bruises, rather than the emotional pain that victims suffer, so this is a real step forward, and one of which the Government should be proud.
The Opposition are also pleased to see the introduction of criminal sanctions—I believe that another amendment on this topic will be debated later—with the power of arrest for a breach of the order. For too many years, I have worked with women and children for whom the orders in place to protect them were not worth the paper they were written on. For far too long, victims have been left to argue with police forces about what constitutes a breach.
As modern technology has advanced—certainly since I started working in the field of domestic abuse—we have seen a host of new ways in which a perpetrator, or those connected with one, can breach an order. Sending posts through a family member on Facebook, for example, is a very common one that I have seen time and again. When the victim has highlighted that as a breach of an order with the police, it has not been acted on. This is not necessarily just a complaint about the police. I am not suggesting that they can act on literally everything; they have their own set of circumstances.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
Very briefly, I want to take the opportunity to describe the rural experience.
Liz Saville Roberts
They are different in different ways. There is immense pressure in terms of population, but the rural experience is that there might well be a desired staffing level on the police of six to cover the whole of north-west Wales. It is physically impossible to reach people within the hour.
Jess Phillips
That is a deeply important thing. For my constituents, it would take four minutes to drive across if there was no traffic, so that is not such an issue. It will definitely lead to victimisation by different means. It also has to be added on to the police resource, for when they see a call and have an immediate issue they need to deal with, because the order has potentially been breached, and they are going to have to drive 50 miles.
I am not suggesting for a second that the police do not want to act on these calls. I think that they do. Every police officer I meet—this has definitely changed over the last 10 years—deeply cares about domestic abuse and wants their force to be brilliant at tackling it. I am just concerned.
What I do not want to happen with the DAPO is for it to have the same reputation as all the other orders among victims and victims’ organisations. All the other orders are basically, “Isn’t that nice? I’ve got this piece of paper,” apart from an occupation order, which is given vanishingly rarely. If we were to sit down with a group of victims, they would say, “What was the point of it?”. I do not want the DAPO to have that. The inclusion of abuse and the inclusion of criminality will go some way to allaying that fear, but without resource, it will be very difficult.
The Joint Committee clearly shared some of our concerns. Its report noted:
“Particular concerns were that the proposed new notices and orders did not ‘cure’ the difficulties seen in the operation of the current Domestic Violence Protection Notices and Orders and the practical workings of the DAPO scheme had not been considered, or funded, sufficiently.”
I give the Minister her due; that is from a year ago and a lot of consideration has gone into it since.
The Joint Committee also found that the use of the existing model of DVPNs and DVPOs—different in flavour, if not in name—by police forces across England and Wales a year after they were rolled out nationally was “patchy.” We are not just referring to breaches; this is about whether they are even given out. I am concerned about resources for dealing with breaches, but there is quite a lot of concern about resources for the orders being given out in the first place.
The Joint Committee noted:
“Numbers ranged from three DVPNs and three DVPOs in Cambridgeshire”—
where there is either no domestic violence, or they are not giving them out properly—
“to 229 DVPNs and 199 DVPOs in Essex”.
Bravo to Essex! The majority of forces submitted figures between 10 and 100.
The Joint Committee continued:
“A review of the police response to domestic abuse by HM Inspectorate of Constabulary, Fire and Rescue Services”—
I noticed the Minister also struggled to say that earlier; it needs a better acronym—
“in 2017 found: ‘Many forces are still not using DVPOs as widely as they could, and opportunities to use them are continuing to be missed. Over half of the forces that were able to provide data—
that were able to provide data does not speak to many—
“on the use of DVPOs reported a decrease in the number of DVPOs granted per 100 domestic abuse related offences in the 12 months to 30 June 2016 compared to the 12 months to 31 March 2015.’”
Those comments speak to my concerns about the capacity of the police, rather than their desire.
I very much hope that the inclusion of the term “abuse” rather than “violence” will act to massively improve the numbers—I really hope that we are proven right on that—and that the act of criminalising has a similar effect on the uptake and usefulness of DAPOs. However, I seek from the Minister an understanding of how and at what intervals that will be assessed.
A number of organisations, from the perspective of both the victim and the perpetrator, have expressed concerns about the new scheme and the act of criminalisation. I am sure that some minds will be put to rest if a framework for review and possible action plans from the evidence of such reviews were put in place—the Minister has spoken about a two-year review in specific areas. For example, if there is limited use in a certain police force after a year and it is identified that that is because of training deficits—that is what it usually is—action plans could then be put in place to ensure a remedy.
Some concerns about the criminalisation element would certainly be allayed if we have an idea about exactly how the pilot is going to work and what actions will be taken to remedy any possible deficits.
There are two potentials. In one of the pilot areas, they may not do it well, and we could all say, “Maybe DAPOs don’t work,” and go and look at something else. Alternatively, pilot areas could put a lot of effort and resources in because of the very nature of being pilot areas. Fair play to all of them, but when we scale that up to the Metropolitan police, the West Midlands police or a police force in a completely rural area, for example, and the scheme is ongoing, there is a concern that we need to ensure that we are reviewing it constantly and pushing for it to work.
I want to the order to work, and the sector wants it to work. I could be glib about people rolling their eyes when an does not work, but that tells victims that the police do not care, even if that is not the case. If someone rings the police and they do not act on a breach, the view is, “It’s because they don’t care about me.” That will stop that person going forward again in the future. That demoralises the whole system, and we cannot have that.
I welcome the fact that domestic abuse protection orders may be applied for without victims’ consent—by the police, specialist agencies and third parties, with the consent of the court. That will end a process that can be very onerous on victims, both administratively and, much more keenly, emotionally. As the Joint Committee highlighted,
“the nature of domestic abuse is such that pressure not to take action against the perpetrator will often be overwhelming and it would significantly weaken the protective effect of the orders if only victims were able to apply for them.”
I cannot sing the praises of that enough.
I turn now to some of the concerns raised by police about the cost of the DAPO application. We welcome the Government’s assurances that no victim will have to pay any costs. I have seen incidences, in times of austerity, where local authority partnership boards moved from systems for application of civil orders, where there was no cost to a victim for application, to a system where victims have been asked for large sums to apply for various orders. Some were asked for thousands of pounds in fees to keep them and their children safe—or, as it turned out, partially safe. It is welcome news that there will be no cost to the victim in this new regime.
Currently, however, an application for a DVPO costs the police £205—admittedly, that is under the current system—and a contested hearing costs £515. In evidence to the Joint Committee, Rights of Women explained:
“the police will seek a costs order against the respondent, which will only be granted when the application is successful. It is unclear how many costs orders are made following applications for DVPOs, and, most pertinently, how much money is actually recovered from respondents when costs orders are made. The National Audit Office report from the summer of 2011 concluded that as much as £1.3bn was owed in court fines, prosecutor costs and other payments arising from court proceedings.”
I especially like the bit at the end of a court hearing, when we talk about the money. It is so academic, as hardly any of it will be paid, but I often enjoy that moment in court.
To date, police forces have not received any additional funding for DVPOs. Olive Craig, legal officer at Rights of Women, told the Joint Committee:
“the organisation had been told by police officers, victims, and frontline domestic violence support staff that one of the reasons they did not use these orders was because they were seen as ‘too expensive’.”
It has been the concern of many specialists that courts will not want to be seen as being draconian, so courts may be less likely to grant DAPOs in the first place, especially now, with the criminalisation element.
Julie Marson (Hertford and Stortford) (Con)
I want to add my voice in supporting the belief that the orders will be a step change in the courts. As a magistrate, I have grappled with many restraining orders and non-molestation orders, and with bail conditions. One of the frustrations I have seen on the bench arises from the desire to know what tools we have to do more, particularly for what seem like minor offences, when someone is not breaking down someone’s door, but writing Facebook messages, or text messages, to their mum or sister.
Many in the police and the courts recognise that the point of crisis for women—in my experience, it is mainly women, as the hon. Member for Birmingham, Yardley said—is when they try to break away from an abuser. That is the moment of greatest danger for a woman, because the perpetrator can see the control slipping away. That is a moment of desperation, when the perpetrator wants to reassert that control, and will use every tool and every trick in the book to do so.
In my experience, the courts and the police are crying out for the tools that they can use, and for the clarity and scope that the measures introduce. I am optimistic, and I believe that lots of people in the system are crying out for just this kind of measure. It will be very welcome and effective.
Victoria Atkins
Forgive me, Mr Bone, but I should explain that, because we do not have box notes, I am having to use my phone. If I may, I will deal with a couple of points that the hon. Member for Birmingham, Yardley raised. A lot of the questions that she posed sit with other clauses in the Bill, and I do not want to detract from the magnificent occasion that will be my hon. Friend the Under-Secretary of State for Justice getting to his feet and talking through some of those clauses, so I will defer to him.
The hon. Lady raised the issue of police fees and recognised that the Government have accepted the Joint Committee’s recommendation, which means that, for the two-year pilot, we will cover the police’s court fees for applying for the orders. We very much want to use the pilot to understand the resource implications of the new orders for the police and other agencies, and to use that to inform our considerations in future.
When she spoke to the Public Bill Committee in 2019, Deputy Chief Constable Louisa Rolfe, the National Police Chiefs Council lead on domestic abuse, said:
“The cost of the DAPO would be the least of our concerns. There are many positive aspects to the DAPO…Policing is not deterred by cost and I have some examples of that. We have a strong record of sometimes stepping in where other agencies are not able to.”––[Official Report, Domestic Abuse Public Bill Committee, 29 October 2019; c. 27, Q47.]
In any event, as I say, we have said that we will cover the cost in response to the concerns raised by the Joint Committee.
In terms of training, we will provide statutory guidance on the new orders, to ensure that the police and other frontline practitioners use them effectively and consistently to protect victims and their children. We will consult with the commissioner, the police and others on the guidance before it is issued, and we will ensure that the police and other frontline practitioners have enough time to prepare for the introduction of the new orders.
The Judicial College has a regular training programme for all judges and magistrates, and Her Majesty’s Courts and Tribunals Service provides training for court staff. We will work with both those partners to assess how to incorporate training on DAPOs into their ongoing training programmes.
Jess Phillips
I do appreciate the back and forth of this forum. I am pleased to hear that about the guidance. Will there be some overview to check whether that training has been done? What body might that sit with? I understand that the Minister may have to get the answer from somebody else.
Victoria Atkins
Obviously, in relation to the judiciary, it will be the Judicial College. The College of Policing plays a vital role in training constabularies across the country to ensure consistency, as do chief constables.
To move away from the Bill momentarily and reflect on the last couple of months, the Home Secretary, I and others have had daily operational calls with the NPCC and other chief officers, and I have been struck by how much domestic abuse has been absolutely at the top of every chief constable’s mind in the last month or two. Some innovative policing practice has been going on, precisely because we are worried about the effects of lockdown.
I know that chief constables take that training responsibility very seriously. Of course, the Home Office has a role to play as well. The hon. Lady said that training is a constant theme in these discussions, which it is, but we should acknowledge that we are in a better place than we were, certainly 10 years ago and, actually, five years ago. I hope that I will be saying that in another five years as well.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
The Chair
I was struck by what the Minister said about the problem of not having the officials here, and so not having inspiration fluttering from behind. If it is of any help to the her in these exceptional circumstances, if she is stuck on a point, I am happy to come back to the matter later, because the Committee would then be better advised.
Jess Phillips
I beg to move amendment 56, in clause 20, page 13, line 8, after “lives”, insert “or works.”
This amendment would ensure that those giving Domestic Abuse Protection notices have the discretion to consider the workplace as well as the home.
The Chair
With this it will be convenient to discuss the following:
Amendment 57, in clause 20, page 13, line 10, after “lives”, insert “or works.”
This amendment would ensure that those giving Domestic Abuse Protection notices have the discretion to consider the workplace as well as the home.
Amendment 58, in clause 20, page 13, line 11, after “lives”, insert “or works.”
This amendment would ensure that those giving Domestic Abuse Protection notices have the discretion to consider the workplace as well as the home.
Amendment 59, in clause 21, page 13, line 29, after “lives”, insert “or works.”
This amendment would ensure that those giving Domestic Abuse Protection notices have the discretion to consider the workplace as well as the home.
Amendment 60, in clause 21, page 13, line 32, after “lives”, insert “or works.”
This amendment would ensure that those giving Domestic Abuse Protection notices have the discretion to consider the workplace as well as the home.
Amendment 61, in clause 32, page 20, line 24, after “lives”, insert “or works.”
This amendment would ensure that those giving Domestic Abuse Protection Orders have the discretion to consider the workplace as well as the home.
Amendment 62, in clause 32, page 20, line 26, after “lives”, insert “or works.”
This amendment would ensure that those making Domestic Abuse Protection Orders have the discretion to consider the workplace as well as the home.
Amendment 63, in clause 32, page 20, line 27, after “lives”, insert “or works.”
This amendment would ensure that those making Domestic Abuse Protection Orders have the discretion to consider the workplace as well as the home.
Amendment 64, in clause 32, page 20, line 28, after “person from”, insert “part of”
This amendment would ensure that those making Domestic Abuse Protection Orders have the discretion to consider the workplace as well as the home.
Amendment 65, in clause 32, page 20, line 28, after “the”, insert “workplace or”
This amendment would ensure that those serving Domestic Abuse Protection Orders have the discretion to consider the workplace as well as the home.
Amendment 66, in clause 33, page 20, line 43, after “establishment”, add “except in a case where the person against whom the order is made works in the same premises as the person for whose protection the order is made;”
This amendment would ensure that those making Domestic Abuse Protection Orders have the discretion to consider the workplace as well as the home.
Jess Phillips
We got here quickly—we are a bit quicker today, aren’t we? I realise that is my responsibility, so maybe we will not be quick anymore. The amendments would expand the DAPO to cover the workplace. In 2016, four women were murdered in their workplaces by men.
In one high-profile case, Andrew Burke cut the throat of his ex-partner’s new girlfriend, Cassie Hayes, at the Southport branch of Tui. The 28-year-old was killed by her lover’s ex-partner at her agency branch in what the judge called a
“cold-blooded execution in public”.
Burke slit Cassie’s throat at the travel shop in front of horrified customers, including families with young children. A court heard how events turned toxic in the lead-up to the murder, after the killer realised that Cassie had begun a relationship with his ex. In 2017, Burke admitted to sending malicious communications and was fined and warned to keep away from Cassie after threatening to kill her. It is particularly poignant for any of us here who have had the exact same thing happen. The perpetrator was already awaiting sentencing for harassing the mother of his child, and was being investigated for further harassing Cassie.
Rachel Williams, about whom I spoke yesterday in the context of the suicide of her son Jack, suffered much of her abuse in the workplace. Rachel’s employer recounted to a newspaper the behaviour of the perpetrator—Rachel’s husband, Darren Williams—in the workplace:
“First, her employer recalled, Williams banned Rachel from working with male colleagues and cutting the hair of any man—or even lesbian women.
When they employed a young man, the entire salon had to enact the charade that he was gay.
Rachel’s boss recalled: ‘Darren’s demeanour was intimidating and we were all afraid of him “kicking off.” He would make surprise visits to the salon and check our appointment book to try to catch her cutting men’s hair.’
‘I remember one particular day when Rachel was the only stylist available to cut a gent’s hair and I had to order all my trainees to circle around her and the client to block any view from the street while she cut his hair. The fear of her getting caught was tangible and the whole salon was on pins.’”
Some 47.3% of respondents to a TUC survey said that their partner physically turned up at their workplace, while 43.6% said that their partner stalked them outside their workplace. Three quarters of women who experience domestic violence will also be targeted at work. Clearly there is a problem with the protection of victims in their places of work. I feel as though the Government were prepared for this speech, because I am very pleased to hear of a review—we all know how much I love a review—into what is needed in workplaces, although I think the issue still stands with regard to the DAPO.
I have seen time and again, working both in domestic abuse services and, I am afraid to say, as an employer, how women can be targeted. Although it did not always mean that the perpetrator would turn up, women would be threatened with the idea that the perpetrator would come and make a scene at their workplace. Imagine being in an abusive relationship—even someone in our job or someone who works for us—and to be kept being told, “I will come and make a scene at your work.” We would do almost anything. It is one of the worst controls that I can imagine—I say that as someone who is so driven by my work—someone turning up at work to humiliate me, causing a scene. I remember one case of a victim whose perpetrator rang her workplace switchboard hundreds of times a day, but she was disciplined for it.
I also recall the case of a teaching assistant who called the police many times about the abuse she suffered at home, including violence and sexual abuse. As in many cases, unfortunately, no convictions were ever secured, for one reason or another. However, were this case to occur now, after this Bill, with which we are all trying to improve the situation, I can very much foresee that we might have got a DAPO—whether through the family courts, the police, the victim or, potentially, a third party, because in that case the woman had an older teenage daughter who was fiercely fighting for her mother.
One day at work, that victim was told that her perpetrator would be coming as a visiting dignitary to the school where she worked. The school had no idea of the connection or the abuse but, when she expressed concerns, she was asked to take the day off. The tentacles of control are hard for us to beat. When we look at domestic abuse, we see that it is about power and control. In that case, someone who wishes to exert power and control is being given the option—which they always are—of using another model of power and control, which is the hierarchies we have at work, such as fear of the boss, worry about what colleagues will think, or that they will say, “Gosh, she is always causing trouble”, or, “She’s whinging again.” It happens, because that is human nature—these things happen—but the two power structures together are a dangerous and heady combination.
In that case, the perpetrator knew that he had the power to go to his ex-partner’s place of work, and that her position as a teaching assistant in that power structure meant that he trumped her even in her workplace. The thought of him delighting in the fact that she would have to take action because of him going about his business makes my blood boil. Perpetrators will use every power option they have, so there is no reason to think that they would not do that in a place of work.
We do not have anywhere near robust enough policies and procedures to deal with workplace domestic abuse, and it is barely seen as a side issue by most. Some really notable examples of good employers, such as Lloyds bank, Vodafone and the Welsh Government, have all sought to take the issue and to go above and beyond with it. They offer paid leave, instances of support and proper policies, for example on what to do if there is a perpetrator and a victim at the workplace.
Alex Davies-Jones (Pontypridd) (Lab)
My hon. Friend mentioned the Welsh Government and yesterday we discussed the Violence against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015, which puts a statutory duty on organisations in Wales to provide training. Some of our local authorities have extended that duty to local employers as well. That is about engagement with local businesses and employers to make their staff aware, so that they can identify the signs, picking up on domestic abuse to help their employees. Some of our local authorities have also introduced paid leave, following what has been done in Scotland. We would definitely look to that as a blanket measure across the UK.
Jess Phillips
When the Minister stands up, I am sure that she will urge us all to take part in the consultation on the current review and say that very thing. My hon. Friend is absolutely right. This is another issue on which this Bill, although it is for England and Wales, is up against some potential differences in Wales—there might be different guidance—and I very much hope that the statutory guidance that comes with the Bill will look at that. The specific issue is that of the DAPO.
I want to talk about how little the issue of violence against women and girls at work is currently considered. As a member of the Women and Equalities Committee, I raised the issue of abuse in the workplace with the Health and Safety Executive as part of our inquiry into sexual harassment in the workplace. Obviously, we know that there is much crossover in this area. I said—this is like a script; I could act it out, but I am definitely better at being Jess Phillips than I am at being Philip White from the Health and Safety Executive. I said:
“Do you know what caused the most deaths of women at work last year?”
The answer, of course, is violence against women and girls. Philip White said, “I don’t know.” That is from the Health and Safety Executive. I asked:
“Would you consider that deaths of women at work came under Health and Safety Executive legislation?”
This is the best answer I have ever received in Parliament; it has stayed with me and will stay with me forever. He said:
“If they were killed by a reversing vehicle or an exposure to gas—”.
I asked:
“So when their safety is not their interpersonal safety, it would come under the Health and Safety Executive?”
The then Chair of that Committee, the right hon. Member for Basingstoke (Mrs Miller), tried to push the issue, asking:
“Surely a death at work would come under you?”
We talked through different incidents of violence at work that would fall under the Health and Safety Executive. As hon. Members might imagine, it did not fill me with much hope, so I asked him
“do you think that the Health and Safety Executive has a role in making sure that workplaces have safety practices at work that keep people safe from violence at work?”,
to which the response was a simple yes.
I pushed further, asking
“does the Health and Safety Executive have any specific guidance for violence against women and girls at work?”
Philip White answered:
“We don’t have any specific advice regarding violence against women and girls at work.”
I mean, we are only 52% of the population. He said that there was some evidence on the website and that HSE was part of
“a European piece of guidance that has been developed”,
which has nothing to do with violence against women and girls. I pushed him further, saying:
“Three women were murdered at work last year due to violence against women and girls, so it might be worth looking into.”
While the amendments we are proposing would not improve the role of the Health and Safety Executive, my encounter with it points to the current lack of proper understanding about the effect of interpersonal violence and abuse in people’s workplaces. It is stark. From my scrutiny of the Health and Safety Executive, I was left with the firm feeling that an employer had a role to protect me as a woman if I was hit by a van, but not if I was hit by a man. The extension of the DAPO to include protections based on people’s workplaces would have not only a material effect by literally protecting people at work, but the effect of forcing employers to take on the role of protecting their workforces from this very real problem.
The right hon. Member for Maidenhead (Mrs May), not normally a union firebrand, herself the originator of this very Bill—[Interruption.] I would not like to speak to what Government Members know of the right hon. Lady’s union firebrandery, but she agrees with me, and on Second Reading of this Bill she very clearly spoke of the need for improvements in the workplace and safety in the workplace. In fact, on Second Reading of the sister Bill, the predecessor to this Bill, the right hon. Lady bravely spoke about specific issues of domestic abuse in the workplace when people work in the police force. She has been a constant champion of this particular issue, and she found many bedfellows on Second Reading of this Bill in people I would definitely describe as union firebrands.
The Bill rightly and nobly includes economic abuse, and the definition is clear—it would be abusive to perpetrate any behaviour that has “a substantial adverse effect” on a victim’s ability to “acquire…or maintain money”. It is clear that perpetrators will use a victim’s workplace as part of their pattern of control, and we have an opportunity in the Bill to stop that. A victim should be safe in the knowledge that they can attend their workplace without their abuser being able to reach them, and all that my amendments would do is simply add the words “and workplace” where the Bill refers to the provisions of a DAPO.
Alex Davies-Jones
We need this amendment to the Bill, because nearly a quarter of all people now meet their partners at work. If someone is working with an abusive partner as well as living with them, it makes sense that they will be subjected to domestic abuse while at work. That is another reason why we need this amendment.
Jess Phillips
I agree, and I will move on to concerns about people working in the same building. It is a very real issue; a quarter of people meet their partner at work—I met my husband in Kings Heath Park when I was 12; it is now many happy years later.
The Bill must not exclude the workplace from victims’ protections, when it is the place where many victims will spend the majority of their time—those of us in this room know that our time at work far outstrips the time we spend anywhere else. I have to say that what is in the Bill with regard to DAPOs really does recognise the idea of a victim’s life and where people are. The only deficit is specifically with regard to workplaces.
For example, as my hon. Friend the Member for Pontypridd referred to, where a victim and a perpetrator share a workplace, a DAPO could specify distances and support employers to make the changes to shift patterns, or locations, or the perpetrator’s work space. The amendment would allow victims to keep their job and to continue working, as necessary steps can be taken to ensure that they have no contact with the perpetrator.
I understand that the Government may feel that non-police interventions for protections may be considered more effective. However, my interaction with the Health and Safety Executive speaks to a different reality, and the evidence that victims need protection in the workplace is clear.
Undoubtedly, in some situations there will need to be stronger enforcement to protect victims and to ensure that there is no unnecessary loss of life. In situations where the victim is in serious danger, workplaces should be a place of safety, but this will only be the case if protections are properly enforced by police interventions.
The amendment seeks for judges to include the consideration of the workplace in DAPOs; it does not have to be included. As we have said, one of the good things about DAPOs is that they are flexible, and there is no compulsion on the court or the applicant to request this consideration in addition to protection in the home. The amendment does not necessarily mean that all DAPOs will feature the victim’s workplace; as I have said, it will be at the discretion of the judiciary and those presenting the case.
In cases where perpetrators’ access to their workplace is restricted due to a DAPO, workplaces should be able to support both the perpetrator and victim to ensure that as few limitations as possible are placed on them, but ultimately they must ensure that they operate a zero-tolerance policy towards any kind of harassment.
I am fearful. I have been trying for years to look at different models for how we can support victims of domestic abuse in the workplace. When perpetrators and victims work together, the issue we always run up against is that it gets too difficult because of the potential infringement on the liberties of people in the workplace. But this infringes on the liberties of the victim every single day. We put a man on the moon 50 years ago. It is not too difficult for us to come up with something. Let him Zoom in—that is what we have all been doing. Can he not use Zoom in his new place of work? We have all learned that we do not have to physically be here in order to work—unless the Leader of the House says otherwise, in which case we are entitled to different options. We cannot live in this modern society and think that this is too difficult to address because people work together, as my hon. Friend the Member for Pontypridd has said. We are better than that. What is that phrase? “World beating”. Let us be world beating in how we deal with domestic abuse in the workplace.
The amendment would protect victims with life-saving orders and give them the opportunity to be protected at work. It would also present a chance to push forward, as so much of the Bill seeks to do, the idea that workplaces across the country should be safe for vulnerable people. The amendment would force employers to consider their role. By agreeing to this amendment, the Committee would be saying that we believe in the DAPO and that it has a chance to keep people safe. The amendment would also do what we all hope the Bill will do. It would break ground and enable us to say, for the first time, to the bosses and to Philip White of the Health and Safety Executive, “This is the responsibility of all of us.”
Virginia Crosbie (Ynys Môn) (Con)
Like every other area of the UK, the constituents of Ynys Môn who suffer domestic abuse are supported by a range of agencies, including police, local authorities and charitable organisations. These organisations provide housing, counselling, education and other services that are vital to keeping safe those escaping domestic abuse. However, as those organisations are all too aware, the issue of domestic abuse goes well beyond the home. Domestic abuse-related stalking and harassment cases make up more than 60% of cases heard at magistrates courts, and more than one third of all reported stalking and harassment takes place at work or at home. It is difficult for those suffering domestic abuse to escape when their abuser follows them.
We all know from evidence provided by organisations such as Refuge that the current injunction system is of limited effectiveness. I therefore welcome the introduction of domestic abuse protection orders, which are a critical part of the Bill. The orders will enable anyone who suffers domestic abuse of any kind to access services knowing that they will be supported and protected beyond the home.
Victoria Atkins
May I start by saying that I have some sympathy with the aim of the amendments? I recognise that the targeting of the victim’s place of work is often a tactic used by domestic abuse perpetrators to cause distress and exercise coercive control. I have been a strong supporter of the work of the Employers’ Initiative on Domestic Abuse, which aims to help businesses and employers take practical steps to help members of their workforce who suffer from domestic abuse. They can often be very small steps, including allowing time off for a victim to go and seek medical help, but they can also include much larger ideas, such as setting up a bank account so that she can siphon money off to get a little bit of independence from the perpetrator. I am very interested in what employers can do to help their employees who are suffering from domestic abuse. Indeed, the Government are looking into this. Only yesterday, the Department for Business, Energy and Industrial Strategy launched a consultation calling for evidence on what more can be done by employers to protect their workforce against domestic abuse. That is very much the direction of travel of this Government.
My hon. Friend the Member for Ynys Môn mentioned stalking, and the hon. Member for Birmingham, Yardley referred to some terrible cases in which victims have been murdered at their workplace. The story that always comes to my mind is that of Hollie Gazzard, as I lived not very far from Gloucester at the time. That was a horrendous case, and her parents have been quite extraordinary in doing what they have done to try to stop other families suffering in the same way. Our efforts to address the issue of stalking have included the introduction of stalking protection orders, which have a similar format to these orders. We have tried to mirror in DAPOs things like the positive requirements and the criminal breach that are in stalking protection orders, so that there is a protection order for stalking if the facts fit one, but if the facts are better suited to a DAPO, those orders will be available as well—subject to the approval of the House, of course. A huge amount of work is going on to recognise the role that the workplace can play in a victim’s life, and in the attempts of a perpetrator to continue their aggressive or coercive behaviour.
To be clear, clauses 19 to 23 relate to the notices, and these are emergency orders. They are issued not by a court, but by a senior police officer, and the perpetrator has no opportunity to make representations against the imposition of the notice. They apply for a very short period—for 48 hours—so that we can give a bit of space to the victim, and so that the police or others can take steps to make the formal application for an order before a court. These emergency orders are different in nature. They are much more restrictive, because obviously if they are issued by a police officer rather than a court and the perpetrator does not have the chance to make representations, we have to reflect that in the nature of the orders. That is why the list of conditions in clause 20 is exhaustive, and they relate in particular to the occupation of the premises shared with the victim. These were drafted because they mirror the existing provisions in the domestic violence protection notices that are in operation at the moment, but I will consider what the hon. Member for Birmingham, Yardley and others have said about introducing the workplace into these notices.
There is one caveat. The hon. Lady has talked about the notices more generally. I hope, Mr Bone, you will forgive me if I veer into clause 21. The reason we are being very careful and methodical is that clause 21(2) requires the police to consider, before issuing a notice that restricts the perpetrator’s access to the premises, the opinion of other people who work on those premises. In very small workplaces, that may be practicable, but in a workplace of thousands—the House of Commons, a Government Department or elsewhere—there would be significant logistical challenges. We will look into the overall principle, but we flag that as a practical concern about amendments 59 and 60. We also have to bear in mind as we look at these amendments that a victim may not wish to disclose their abuse to their employer.
The purpose of amendments 61 to 65 is to make equivalent amendments to provisions that may be made by a DAPO. The Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham may deal with those specifically in relation to the clauses on orders. It may be that they are not quite as necessary in orders as they are in notices, given that orders will be considered by a court and there is much more freedom for the court to impose necessary restrictions.
Jess Phillips
I welcome the Minister’s comments. I am happy about the announcement of a Government review, although a number of reviews about workplace violence against women and girls are outstanding after a number of years. That is not the Minister’s responsibility, but the issue of non-disclosure agreements, for example, has been raging, as part of a review and consultation, for three years since the Weinstein affair.
I welcome the Minister’s commitment to this particular issue. I do not think that anybody wants victims to be controlled in that way in their workplaces. I recognise the concerns about when people work together and that, in those instances, it will potentially be much easier to have that conversation in court. I am happy to withdraw the amendment on the proviso that the Government have given, having said that they will listen and try to take that on board and see how it could work. I welcome that, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 ordered to stand part of the Bill.
Clause 21
Matters to be considered before giving a notice
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
Clause 21 relates to matters that must be considered by the senior police officer before giving a notice. Again, I emphasise the difference between a notice and an order. First, the police officer must consider the welfare of any child whose interests the officer considers relevant to ensure that any safeguarding concerns are addressed appropriately. The child does not have to be personally connected to the perpetrator for their interests to be relevant and could therefore be the victim’s child from a previous relationship.
The police officer must also take reasonable steps to find out the opinion of the victim as to whether the notice should be given. However, as set out in subsection (4), the police officer does not have to obtain the victim’s consent to give a notice, which I think the Committee—I observe the nodding heads—is in agreement with. That enables the police to protect victims who may be coerced by the perpetrator into expressing the opinion that a notice should not be given or who are fearful of the consequences should they appear to be supporting action against the perpetrator.
Where the notice includes conditions in relation to the premises lived in by the victim, reasonable steps must be taken to find out the opinion of any other person who lives in the premises and is personally connected to the perpetrator, if the perpetrator also lives there. For example, if the perpetrator had caring responsibilities for a family member with whom they shared the premises, it would be important for the police to be aware of that. Consideration must also be given by the police officer to any representation that the perpetrator makes in relation to the giving of a notice, although that is not a formal process as with the courts.
I want to be absolutely clear that the primary consideration in determining whether notice should be given must be the protection of the victim and their children. We will ensure that that is set out clearly in the statutory guidance.
Peter Kyle
The decision that the officer has to make on whether he asks permission from an alleged victim or issues the notice without the support of the victim is going to be very difficult. What guidance will the Home Office issue to assist frontline officers in making that decision in a way that is consistent within and across police forces?
Victoria Atkins
The hon. Gentleman raises a sensible point. There will be moments where an officer has to judge the situation as it is presented to her or him. We will be issuing statutory guidance and, as with the statutory guidance on the Bill, that will very much be in consultation with the commissioner and frontline charities.
These sorts of decisions have to be made regularly by officers. During the current crisis, officers are making decisions about whether they visit certain premises to check that people are okay and the potential impact of that. There will be difficult decisions, but we will very much engage with people in a transparent way to make sure that the guidance is in a good place before it is issued formally.
Liz Saville Roberts
A point that has been raised with me is that training in domestic abuse for junior police officers is often much more thorough than that which their senior officers have experienced, and that, as well as guidelines, specific training for those officers who will be making the decisions could be very useful.
Victoria Atkins
That is not the case with all senior officers. Deputy Chief Constable Louisa Rolfe, who is the NPCC lead on domestic violence, is a very senior officer and an absolute expert. I take the point that officers at different stages in their career will have different levels of experience and training. I am sure the guidance will help address that so that we have a wealth and diversity of experience in the decision-making process.
Jess Phillips
I will be brief. I have a number of concerns about the notice, some of which have, quite rightly, already been raised. Louisa Rolfe is currently a West Midlands police officer—she is just about to leave that post—and an excellent one at that, but I get the point that has been raised.
Last night, a journalism award was given to someone who investigated what happens when there is domestic abuse within the police force. In this instance, we are putting so much of the onus on the individual police officer. If a social worker suffers domestic abuse or is accused and convicted or perpetrating domestic abuse, or any other type of abuse, the LADO process—the local authority designated officer—is followed. They go through that process at work and are not allowed to work on certain areas. I just want to make sure that something similar applies in this case. Individual police forces are huge; a variety of people work for them. If issues were raised in an officer’s case, that kind of process would ensure that they were taken into consideration when deciding who within the force gives out notices. I imagine that that sort of situation would be vanishingly rare, but it is worth noting.
On breach of a notice, we are talking about victims who do not give consent. As the Minister said, I nodded—I totally agree—but if a victim breaches a notice, I do not want that to end up being used against them in court. A lot of issues came up in the sad case of the suicide of Caroline Flack—
Domestic Abuse Bill (Sixth sitting)
Wednesday 10th June 2020
(3 years, 10 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 10 June 2020 - (10 Jun 2020)
Jess Phillips (Birmingham, Yardley) (Lab)
I was just discussing the issue of a notice being breached on behalf of the victim. I had started to say that in the case of Caroline Flack, who sadly took her own life, there was a notice between her and her partner that they had not breached. In that instance, the partner would be considered the victim in the context we are discussing. That case has highlighted in the public’s mind the fact that when a victim is told not to contact somebody, there will always be pressures, for lots of different reasons, and certainly if the victim shares children with the perpetrator.
In a case where somebody is struggling with their mental health or wishes to reach out, I just want some assurance about how it might play out in court if a breach of these notices occurred on the side of the victim—that is, if a victim breached a notice for pressure reasons, or even for humanitarian reasons. I have seen lots of cases in the family courts, for example, where the fact that orders have not been kept to has been used against victims. I wondered what we might think about breaches of these particular notices from the victim’s point of view.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
The hon. Lady’s question relates to clause 23, but my answer will be given on the basis that we are debating clause 21. Before I answer, I want to clarify that when I said the perpetrator could not make representations, I was thinking of court representations. I suspect that the officer can take representations into account if they arrive at the scene and the perpetrator says something to that officer, or whatever.
In relation to breaches, again, we need to be careful about the language we use. The notice will be between the police, who issue it, and the perpetrator; it does not place any restrictions on the victim. However, with other types of orders, there are of course circumstances in which non-contact orders have been made and the person being protected by that non-contact order contacts the person on whom it is placed.
That must be a matter for the court. As the hon. Member for Birmingham, Yardley has set out, the person being protected may well have had perfectly reasonable grounds for making contact, but that must fall into the arena of the court. I do not think we could interfere with that, because the judge will have to engage in that balancing exercise when considering the orders, as opposed to the notices we are debating at the moment. I am sorry that I cannot provide the hon. Lady with more information than that, but in those circumstances I recommend to the Committee that the clause stand part of the Bill.
Question put and agreed to.
Clause 21 accordingly ordered to stand part of the Bill.
Clause 22 ordered to stand part of the Bill.
Clause 23
Breach of notice
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
I will address this clause briefly, because the hon. Member for Birmingham, Yardley has raised a query about it. Clause 23 relates to a perpetrator who is alleged to have breached the grounds of their notice. If a constable has reasonable grounds for believing that a person is in breach of a notice, they can be arrested without warrant, held in custody and brought before a magistrates court within 24 hours, or in time to attend the scheduled hearing of the application for a domestic abuse protection order—whichever is sooner. It is fair to say that these are very strong powers, which I hope shows the seriousness with which we believe the alleged perpetrator should be viewed, but also the seriousness with which the police and the courts view these notices.
The Bill also provides the police with a power of entry when they are arresting someone for breach of notice, and that is stronger than the current domestic violence protection notice provisions, which do not go quite that far. This additional power of entry will improve the police’s ability to safeguard victims and to gather vital evidence at the scene of an incident.
Peter Kyle (Hove) (Lab)
One of the most striking features of the clause is set out in subsection (2), which states:
“A person arrested by virtue of subsection (1) must be held in custody”.
These are indeed strong powers, but they send a very clear signal that the law and law enforcement are on the side of the alleged victim at such times. It is a very welcome move and will give confidence and respite to any alleged victims in future, so we thank the Government for delivering it.
Victoria Atkins
I thank the hon. Gentleman for that intervention. I am pleased that he sees what we are trying to achieve with this clause.
Question put and agreed to.
Clause 23 accordingly ordered to stand part of the Bill.
Clause 24
Meaning of “domestic abuse protection order”
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
Sorry. Just to explain, I am obviously very keen that the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham, plays his part, but this shows that there is real interaction between both our Departments on the Bill, so we have had to do a certain amount of carving-up between us.
It is my pleasure to introduce clause 24. We are moving now from the provisions in the Bill about notices to those about domestic abuse protection orders. Clause 24 defines a DAPO for the purposes of part 3 of the Bill and signposts the subsequent provisions in this chapter relating to the making of an order.
The definition in subsection (1) provides that a DAPO is
“an order which…places prohibitions or restrictions or both on the subject of the order, namely, the perpetrator for the purpose of protecting another person, namely, the victim from abuse and in accordance with Clause one, the victim must be aged 16 or over”
and “personally connected” to the perpetrator.
Question put and agreed to.
Clause 24 accordingly ordered to stand part of the Bill.
Clause 25
Domestic abuse protection orders on application
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
One key advantage of the DAPO over other existing orders is that it can be obtained via a range of different application routes. Unlike the current domestic violence protection order, which can only be applied for by police to a magistrates court, or the non-molestation order, which can only be applied for by victims to the family courts, the DAPO provisions allow far greater flexibility in who can apply for an order, and to which court the application may be made.
Clause 25 sets out who can apply for a DAPO: namely, the victim, the police, a relevant third party specified in regulations, or any other person with the leave of the court. The provision for relevant third parties, which is to be set out in the regulations, ensures that such parties would be able to apply for an order directly without first obtaining the leave of the court. We will use the pilot of the orders to assess whether the current provisions for anyone to apply with the leave of the court are sufficient, or whether it would be beneficial to enable local authorities, for example, to make an application without first having to seek leave of the court. If there is a case for expanding the list of persons who can apply for a DAPO as of right, we can provide for that in regulations at a later stage.
Subsections (3) and (4) set out which police force, including the British Transport police and the Ministry of Defence police, should lead on an application for an order in different circumstances. Where a notice has already been given, the application must be made by the police force that gave the notice. Where the police wish to apply for a stand-alone order without a notice having been given, the application should be made by the force for the police area in which the perpetrator resides currently or intends to come into. The purpose of the provision is to make it absolutely clear which police force has responsibility for applying for a DAPO in order to avoid any confusion, duplication of effort or delay in putting protective measures around the victim.
The clause also sets out to which courts applications can be made. Police applications are to be made to a magistrates court, as is the case for domestic violence protection orders, and other applications are to be made to the family court. To ensure that DAPOs are widely accessible in other circumstances where they may be needed, the clause also allows for applications to be made by a victim during the course of certain proceedings in the family and civil courts, as specified at clause 28.
Jess Phillips
The clause is very robust and replaces an incredibly confusing picture of which orders one can get where. As somebody who has filled in the paperwork for pretty much all of these orders, I do not think I could explain it right now. It is very complicated, but we have a clear listing of exactly who can do what. What the Minister has said about regulations being laid around relative third parties is an important point. I know that the Joint Committee on the Draft Domestic Abuse Bill and also anyone who works in this building will have potential concerns about the misuse of third parties applying for DAPOs. I cannot imagine many circumstances in which they could be misused, but unfortunately perpetrators are particularly manipulative and can sometimes find ways to do that, so I will be interested to see the regulations on third parties when they are laid and how much that will be in consultation with the victim and, in fact, the perpetrator. We are infringing on people’s rights. Although I want to see those rights inhibited in lots of cases, they are none the less rights that we are here to fight for.
The Minister has outlined the police force area in which the DAPO is filed. This is always a complicated thing, but does she foresee any problems with resource in the police force area? I raise this because of personal experience in having orders in my own cases. I am not very popular in Manchester for some reason. I feel desperately sorry for Greater Manchester police. When coming to take statements from me to look at options around protections for me personally, it takes a whole day out of a police officer’s time to come all the way to Birmingham and sit in my house, sometimes for nine hours.
Is there a plan that could be put in guidance around police force partnerships where there is a big geographical spread? In these cases, most likely people will be close by, but when women go into refuge they can move across the country, often from Birmingham to Wales, for some reason—I do not know why, but it is close and we like the water. I have concerns about victims feeling, “Oh, that’s really far away,” or, “Gosh, I’m bothering the police.” I have certainly felt myself that I am bothering Greater Manchester police and that I might just give up on this because it is such an effort for them to drive there.
Those are not reasonable things, and we cannot mitigate people’s feelings in the law. As the Minister said, we do not try to put people’s feelings into the law, because we would never be able to represent them properly, but I think this has to be considered. The clause is well written and substantive in its detail.
Victoria Atkins
On the potential for conflict between the different areas for the victim and perpetrator police forces, we absolutely understand that. We very much expect those sorts of issues to be drawn out through the pilot. Interestingly, any police force can issue a notice to the perpetrator in response to a crisis incident, whether or not it is the police force where the perpetrator resides. That prevents any delay in protecting the victim and means that the forces do not have to reach a decision in each case on who should issue the notice. Clause 25(3) provides that whichever police force issues the notice to the perpetrator must then apply for the order against them.
We are very alert to the issue of distances. That is why in subsection (8)(b) we have ensured that a victim cannot be compelled to attend the hearing or answer questions unless they have given oral or written evidence at the hearing. That means that the police and other third-party applicants can make evidence-led applications that do not rely on the victim’s testimony. Of course, where the application is supported by evidence provided by the victim, the court should have the opportunity to hear from the victim in person. We will ensure that there are guidance materials for victims to make it clear what they can expect from the DAPO process and to address any concerns they may have about the DAPO application hearing.
Question put and agreed to.
Clause 25 accordingly ordered to stand part of the Bill.
Clause 26
Applications where domestic abuse protection notice has been given
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
Clause 26 covers the steps that the police must take to apply for a DAPO following the issuing of a domestic abuse protection notice. Subsections (2) and (3) set out that the application for a DAPO must be heard in a magistrates court within 48 hours of the notice being given. That 48-hour period gives the police time to make the application for the order while giving the victims breathing space from the perpetrator until more comprehensive and longer-term protective measures can be put in place through the DAPO.
Clause 22 requires the police giving the notice to ask the perpetrator to provide an address at which they may be given notice of the hearing of the application for the order. Clause 26 provides that if the notice of the hearing is left at this address or, in cases where no address is given, reasonable efforts have been made by the police to give the perpetrator the notice, the court may hear the application without notice to the perpetrator. That is to ensure that the sorts of manipulative individuals that we have heard about cannot try to frustrate this process by simply not turning up.
To ensure that the victim remains protected if the hearing of the DAPO application is adjourned by the court, subsections (7) and (8) ensure that the notice continues to have effect until the application for the DAPO has been determined or withdrawn. The perpetrator can be remanded if they have been brought before the court after breaching the notice. Again, these are very powerful measures, and I hope that assures the Committee about the strength that we want to give to the police, the courts and those who are trying to stop perpetrators and protect victims, and about our determination to support them.
Question put and agreed to.
Clause 26 accordingly ordered to stand part of the Bill.
Clause 27
Remand under section 26(8) of person arrested for breach of notice
Question proposed, That the clause stand part of the Bill.
The Parliamentary Under-Secretary of State for Justice (Alex Chalk)
Thank you very much.
Alex Chalk
I am glad that all hon. Members are taking this seriously. It is a pleasure to serve under your expert chairmanship, Mr Bone, and to be one of the Ministers leading on this Bill. When I was a Back Bencher, together with another Member of Parliament, I ended up doing some work on stalking laws to try to increase the maximum sentence for stalking, so if I could have chosen any Bill to be a Minister on, it would have been this one. It is a real pleasure to be here. I am delighted to see my shadow, the hon. Member for Hove, and the hon. Member for Birmingham, Yardley. We share a common endeavour in wanting to make this the best piece of legislation.
Clause 27 is a procedural clause that sets out how long a person can be held on remand if they are arrested for breach of a police-issued domestic abuse protection notice and the magistrates court adjourns that hearing. A magistrates court can normally remand a person for up to eight days, but clause 27 sets out that the court can also remand the person if a medical report is required. In such cases, a person can be remanded for only up to three weeks at a time if they are remanded in custody, or up to four weeks at a time if they are remanded on bail.
If the person is suffering from a mental disorder and a report is needed on their mental condition, they may be remanded to hospital so that such a report can be produced. That can be for up to a maximum of 28 days at a time or a total of 12 weeks if there are multiple stays in hospital.
If the court decides to remand a person on bail, it can attach any conditions necessary to prevent the person from obstructing the course of justice—for example, interfering with witnesses. These are standard provisions that largely replicate the approach taken for remand following breaches of other types of protective orders, such as non-molestation orders, occupation orders and antisocial behaviour injunctions.
Question put and agreed to.
Clause 27 accordingly ordered to stand part of the Bill.
Clause 28
Domestic abuse protection orders otherwise than on application
Question proposed, That the clause stand part of the Bill.
Alex Chalk
Clause 28 makes provision for the court to make a domestic abuse protection order of its own volition during other ongoing proceedings that do not have to be domestic abuse-related. It is an important provision that shows the flexibility of the legislation.
The family court will have the power to do so in cases where both the victim and the alleged abuser are parties to the proceedings, which means that the family court will be able to make an order in other ongoing proceedings where the court becomes aware that an order would be beneficial. For example, if an issue of domestic abuse is raised during ongoing child contact proceedings, the victim would not have to make a separate application to the court to obtain an order. Instead, the court can make an order of its own volition as it sees necessary. That is an important element of flexibility, and indeed robustness, built into the legislation.
In criminal courts—I am conscious that we have expertise here in the form of a former magistrate, which is excellent—as with the current restraining order, the court will be able to make a domestic abuse protection order on either conviction or acquittal. To that extent it is similar to a restraining order, which can also apply in the event of an acquittal. Importantly, however, the DAPO is an improvement on the current restraining order because it can impose positive requirements as well as prohibitions on the perpetrator. All Committee members will recognise that, although we of course want to protect victims first and foremost, we also want to stop further abuse happening, so anything that can be done to ensure that people are rehabilitated and see the error of their ways is a positive thing for society as well as, of course, for the victim.
In the case of a conviction, that will allow the court to, for example, set an order with a longer duration than the sentence passed, to ensure that the victim receives the protection they need beyond the length of their sentence. In the case of an acquittal, it will ensure that the victim still receives protection if the court thinks that is necessary.
The court will also be able to make a DAPO of its own volition during other ongoing civil proceedings where both the victim and the alleged abuser are parties to the proceedings.
We will specify the type of civil proceedings in regulations, but initially we expect it to cover civil proceedings in which issues of domestic abuse are most likely to be raised or revealed in evidence, such as housing-related proceedings.
Jess Phillips
I feel that, now Minister Chalk is on his feet, I should have some things to say; I do not want to leave him out.
I cannot say how important the idea that the court can put in place an order on acquittal in these circumstances is to somebody like me, who has watched many cases fall apart over the years. I am always slightly jealous of the Scottish system of not proven, because in too many cases in the area of violence against women and girls, it may well be that the balance of evidence needed cannot be provided either at the magistrates court or at the Crown court in these circumstances, but there is still gross fear among all involved that the fact that it is not proven does not mean that it did not happen.
The idea that, on acquittal, courts could put these orders in place is a huge step forward, ideologically and politically speaking. My concern—I am almost doing myself an injustice on what I am going to say about some of the amendments later—is what the Ministry of Justice foresees as a review mechanism to ensure where this is going, how it is working and how regularly the family courts are dishing out such orders.
If everybody was like Essex police force, I would be jumping for joy. I do not hope for this, but maybe one day somebody will perpetrate a crime against me in Essex and I will see how brilliant the force is at orders, as we heard from the evidence earlier. What worries me is whose responsibility it will be, after a year or two years—even after the pilot scheme—between the Ministry of Justice, the head of the family courts structure and the chief prosecutor at the head of the Crown Prosecution Service, to see how readily these orders are being used in our courts.
I have already said this once today, but often people like me put in annoying questions to people like the Minister, such as, “Can you tell me how many times this has been used in these circumstances?”, and very often the answer that we receive back is, “We do not collect this data nationally”, or, “We do not hold this data in the Department.” I want a sense of how we are going to monitor this, because while I know this just looks like words on paper, to people like me it is deeply, deeply important that the courts could take this role.
However, I have seen too many times that, even the powers that the courts have—certainly the family courts, which no doubt we will come on to tomorrow—are not always used wisely and well, so I want an understanding of how specifically we are going to monitor the use of the courts giving out the orders, which is new in this instance. How are we going to test that it is working and try to improve its use? I would be very interested in even just a basic data gathering each year of how many were done on acquittal, how many were done on conviction and how many were done in family court proceedings where both parties were part of proceedings.
With regard to the family court, and in fact in all these circumstances—whether it is a notice or an order; whether a police officer has to make a decision there on the doorstep or we are talking about orders—how are we going to deal with some of the “he said, she said”? I have seen an awful lot of counter-claims in the family courts. Often somebody will talk about being victimised as part of domestic abuse, and it becomes: “Well, actually, she was domestically abusing me,” or, “He was domestically abusing me.” I wonder whether any thought has been given to how, in giving out DAPOs in a family court, we do not end up with potentially two people, both with an order against each other—or maybe that could happen.
Alex Chalk
I will say a couple of things. First, I completely agree with the hon. Lady’s observation that the powers are very stark but very welcome. It is important to note why they are in place. It is not uncommon that cases cannot necessarily be proven to the criminal standard: beyond reasonable doubt. The tribunal has to be satisfied that it is sure; however, there can be serious lingering concerns that, were it to apply a test of the balance of probabilities, it would have no difficulty in finding that the abuse had taken place.
It is to cater for those circumstances that the courts can now impose really quite robust measures to ensure the protection of complainants and the rehabilitation of perpetrators. They are important powers, and benches and courts will want to exercise them wisely. Inevitably, they apply to individuals who have not been convicted of any offence. The courts will therefore need to tread carefully to ensure that justice is done, but they have shown themselves well able to do that for many centuries.
Peter Kyle
My hon. Friend the Member for Birmingham, Yardley made the point very well that, for some of the issues that we are tackling with the legislation, the powers already existed in other pieces of legislation, but the courts, in their conservatism, refused to exercise them. As my hon. Friend asked, will the Minister ensure that his Department gives the right steer to the courts, which the president of the family division can translate into something that is actionable on the front line in family courts up and down the country?
Alex Chalk
The hon. Gentleman makes an important point. Ultimately, he will understand why I say that a very proper distinction exists between the legislature, the Executive and the judiciary. The judiciary are proudly and profoundly independent, and they will take their course and impose the orders if they think that it is in in the interest of justice to do so. Of course, we must ensure that courts are properly aware of the powers available to them. I have no doubt that the president of the family division, and indeed the Lord Chief Justice in the criminal sphere, will use their good offices to ensure that that takes place.
On the point that the hon. Member for Birmingham, Yardley made about whether we can look after the event to check that the powers are being used, first, there is, as she knows, the issue of the pilot. That provides a significant period to establish whether the orders are being taken up. Secondly, the Office for National Statistics has an annual publication of DA statistics that includes the different orders, so we will be able to get a sense of the extent to which they are being applied.
I hope that this will not sound overly fastidious, but one should not necessarily automatically read reluctance into a low level of use in one part of the country compared with others. It may be, because each case turns on the facts, that it was not appropriate in those circumstances. However, as a general observation, we will keep an eye on it, and there will be data on which the hon. Lady will no doubt robustly hold the Government to account. I beg to move.
Question put and agreed to.
Clause 28 accordingly ordered to stand part of the Bill.
The Chair
For the benefit of the Committee, and perhaps for the Minister, I should say that you do not need to beg to move stand part clauses, because they are already in the Bill; the only thing that you have to move are the amendments—but you, sir, are one of many Ministers who make that mistake.
Clause 29
Conditions for making an order
Question proposed, That the clause stand part of the Bill.
Alex Chalk
Thank you, Mr Bone—that’s my career over.
Clause 29 sets out two conditions that must be met before the court may make a domestic abuse protection order. The first is that the court must be satisfied—on the balance of probability, as I have indicated—that the person has been abusive towards the victim. Our intention with the DAPO is to bring together the strongest elements of the existing protective order regime.
One of the key benefits of existing civil protection orders is that if a victim who needs protection from abuse is not able to gather sufficient evidence to meet a criminal standard of proof, they can still apply to the courts for protection. We have ensured that that will be the case for the DAPO as well by explicitly providing for a civil standard of proof: on the balance of probabilities. The Joint Committee in examining the draft Bill were content with the application of the civil standard.
In the Bill, we have made it clear that domestic abuse includes many different types of abusive behaviour, as we have heard, including physical and sexual, as well as controlling, economic and emotional abuse. That is a novel and important departure. That means the court will be able to take into account all the abuse present in the case when deciding whether to make an order.
That is a step forward compared to current domestic violence protection orders, which require either violence or the threat of violence before a notice can be issued or an order made; we understand that this is currently interpreted to mean physical violence only. Members of the Committee will immediately see the extent to which the ambit has been broadened.
The second condition is that the court must be satisfied that it is necessary and proportionate to make the order to protect the victims of domestic abuse or those at risk of domestic abuse. Once the threshold is met, the court may impose only those requirements that it considers are necessary to protect the victim. Incidentally, that necessary threshold is important in ensuring that the measure is compliant with our responsibilities under the European convention on human rights.
The clause also specifies that an order can be made only against a person who is 18 or over. We recognise that younger people can be involved in abusive relationships, which is why we have included 16 and 17-year-olds in the new statutory definition of domestic abuse. There is, however, a balance to strike. We do not want to rush to criminalise young people, in line with our youth justice guidelines, as DAPOs carry a criminal penalty for breach, punishable by up to five years’ imprisonment or a fine, or both.
Pausing on that, it is important to recognise that DAPOs will be imposed on somebody who is not guilty of any crime, yet breach of them is punishable by imprisonment: these are robust powers, and that is why we have circumscribed them carefully in the way that we have. I do not need to beg to move, so I shall just sit down.
Question put and agreed to.
Clause 29 accordingly ordered to stand part of the Bill.
Clause 30
Matters to be considered before making an order
Question proposed, That the clause stand part of the Bill.
Alex Chalk
This clause concerns matters to be considered before making an order. Similar to the provisions at clause 21 in relation to a notice, clause 30 sets up particular matters, which the court must consider before making a domestic abuse protection order.
First, the court must consider the welfare of any person under the age of 18, whose interests the court considers relevant, in order to ensure that any safeguarding concerns can be appropriately addressed. The person does not have to be personally connected to the perpetrator and could, therefore, for example, be the victim’s child from a previous relationship.
The court must also consider the opinion of the victim as to whether the order should be made. As set out, however, in subsection (3), the court does not have to obtain the victim’s consent in order to make an order. We have already discussed why that is desirable. It enables the court to protect victims who may be coerced into withholding their consent, or who are fearful of the consequences should they appear to be supporting action against the perpetrator.
Where the order includes conditions in relation to premises lived in by the victim, the court must consider the opinion of any other person who lives in the premises and is personally connected to the victim or, if the perpetrator also lives in the premises, to the perpetrator. For example, if the perpetrator has caring responsibilities for a family member, the court would need to consider the family member’s opinion on the making of an order excluding the perpetrator from the premises.
Jess Phillips
I wonder whether the Government foresee a child being included in that instance. If it was an elderly relative, that is reasonable. But are we saying here—or perhaps it will be in the much-awaited guidance—that if a child was living in the house, their opinion might be sought?
Alex Chalk
Yes, I think it would be and I think that is appropriate. One thing that certainly the criminal law has done over the last 20 years is start to recognise that people under the age of 18 have views that are sometimes worth hearing. In the past, they were almost kept out of court, but now of course we try to facilitate their giving evidence. I would imagine that that would be the case in these circumstances and that a court would want to hear that.
It will be for the court to weigh up the different factors to come to its decision on whether a DAPO is necessary and proportionate in order to protect the victim from domestic abuse or the risk of it.
Question put and agreed to.
Clause 30 accordingly ordered to stand part of the Bill.
Clause 31
Making of orders without notice
Question proposed, That the clause stand part of the Bill.
Alex Chalk
Clause 31 makes provisions for making an order without giving prior notice to the person who is alleged to have been abusive. These are standard provisions and consistent with existing protection orders. Before making an order, a court would normally inform the relevant person of the hearing taking place. However, as with existing orders, we recognise that in some cases an order may be urgently required. Clause 31 enables the court to make an order without notice in those cases where it is just and convenient to do so.
When deciding whether to make an order without notice, a court must first consider the risk to the victim if the order is not made immediately and the risk that the victim would be deterred from pursuing the application if the order were not made immediately. This measure also allows the court to take action in cases where it believes that the person alleged to have been abusive is aware of the proceedings but deliberately evading service, in order to ensure that the victim can still receive the protection that they need. In other words, it provides scope to the court, if it thinks that an individual is seeking to frustrate justice, simply to go ahead in the normal way and ensure that the protection is put in place.
If an order is made without notice, the court must schedule a return hearing as soon as is just and convenient, to allow the affected person to make representations about the order. That is in line with the usual procedures for current protective orders, and you may feel, Mr Bone, that it is in the interests of justice. If an order is made without notice, the individual who is subject to it should have the opportunity to make representations as soon as is just and convenient.
It is worth mentioning that subsection (2) of clause 34, which makes further provision about electronic monitoring requirements, provides that an electronic monitoring or tagging requirement may not be imposed on a person in their absence. I trust that the reason for that is obvious, but if anyone wants to ask me about it, they can.
Question put and agreed to.
Clause 31 accordingly ordered to stand part of the Bill.
Clause 32
Provision that may be made by orders
Question proposed, That the clause stand part of the Bill.
Alex Chalk
Clause 32 concerns provision that may be made by orders. The Committee will recall that we heard earlier about provision that may be made by notices. This is the twin in respect of orders.
Clause 32 provides courts with the flexibility to impose in respect of a DAPO not only restrictions but positive requirements, depending on what is necessary in each case to protect the victim from all forms of abusive behaviour. Subsections (4) to (6) provide examples of the kinds of conditions that could be imposed by a DAPO, but subsection (3) expressly provides that those are not exhaustive.
It is up to the court carefully to tailor the conditions of the DAPO to meet the needs of the individual victim and take into account the behaviour of the perpetrator. The reason is that circumstances are varied and it is important to ensure that the court considers each case on its merits, and the circumstances as they apply, and ensures that the conditions are tailored accordingly.
Jess Phillips
Specifically with regard to what we were discussing earlier in relation to workplaces, does the Minister foresee that that could be one of those issues that could be discussed in the court—that there would be an allowance for the workplace to be included, with leave of the court?
Alex Chalk
Absolutely; I do not see why not at all. In fact, when the hon. Lady was making those points in respect of notices, I did fast-forward to clause 32, and it is deliberately broadly cast. Clause 32(2) says:
“The court must, in particular, consider what requirements (if any) may be necessary to protect the person for whose protection the order is made from different kinds of abusive behaviour.”
Jess Phillips
It is very pleasing to hear that—it is reassuring. I urge that the point is made explicitly in the guidance that will go along with all the orders. I wanted that on the public record.
Alex Chalk
It may be in the guidance but, I respectfully suggest, does not necessarily need to be in it. When a court comes to consider what it will or will not do, it may look at this measure and say, “Are we precluded from banning him from her workplace? If the answer to that is no, we will go ahead and do it, regardless of what is in the guidance.” It may be that it will be in there anyway, but I am confident that, as the Bill is set out, it is drafted sufficiently widely—deliberately so—for the courts to see their way to do justice and impose protections as they see fit.
Peter Kyle
One benefit of this approach to legislation is that it allows scope for creativity in the individual court to tailor to a specific circumstance that might not be predictable. In such circumstances, how can other courts learn from that innovation? It is obviously the responsibility of the judiciary, including the president of the family division of the High Court, but we have learnt from bitter experience that some courts and judges are almost impervious to change—I speak with respect to the former one before us. How does the Department seek to use innovation on the frontline in family courts to ensure that family courts in other parts of the country benefit?
Alex Chalk
May I gently push back on that? I understand the hon. Gentleman’s observations about the need to ensure that one modernises and so on, but if we think for a second about the sorts of conditions that the court is likely to impose, those will be along the lines of conditions routinely imposed in respect of bail, for example—not to contact an individual, not to go within a certain a postcode, not to go to a school, not to visit the home or not to contact relatives directly or indirectly.
I am confident that the courts will be well able to impose those conditions without requiring any particular leap of imagination. They will welcome and embrace these powers, which are deliberately drawn widely, so that the courts may apply their everyday experience of the world to understanding what is required to do justice and to provide protection in an individual case.
On the issue of keeping an eye on this, there are data and statistics, which will be published in due course. It will be open to hon. Members, the domestic abuse commissioner and the Victims’ Commissioner to keep a close weather eye on that. I know that the hon. Member for Hove will do precisely that.
Question put and agreed to.
Clause 32 accordingly ordered to stand part of the Bill.
Clause 33
Further provision about requirements that may be imposed by orders
Jess Phillips
I beg to move amendment 51, in clause 33, page 21, line 3, leave out subsection (2) and insert—
“(2) A domestic abuse protection order that imposes a requirement to do something on a person (“P”) must—
(a) specify the person who is to be responsible for supervising compliance with that requirement; and
(b) meet the standard published by the Home Secretary for domestic abuse behaviour interventions, if the requirement is to attend an intervention specifically designed to address the use of abusive behaviour.”
The Chair
With this it will be convenient to discuss the following:
New clause 26—Publish statutory standards—
“It is the duty of the Home Secretary to consult on and publish statutory standards in furtherance of section 33(2)(b) within 12 months of royal assent to this act, and to review these standards at least once every 3 years.”
This new clause is contingent upon Amendment 51 and seeks to ensure that all interventions designed to address abusive behaviour, that are imposed by DAPOs, are of a quality assured standard, as made clear under published statutory standards.
New clause 27—A strategic plan for perpetrators of domestic abuse—
“Within one year of the passing of this Act, the Government must lay before Parliament a comprehensive perpetrator strategy for domestic abuse to improve the identification and assessment of perpetrators, increase the number of rehabilitation programmes, and increase specialist work to tackle abusive attitudes and behaviour.”
Jess Phillips
The amendment is not dissimilar to new clause 26, so I shall speak to them together, before moving on to new clause 27.
This part of the Bill is specifically about further provisions, beyond those that the Minister has just outlined for us—about where people can and cannot go. This is about positive actions that can be taken in the court. Of course, that is not new to the Bill. This is a new Bill, and a new clause in it, but for many years the court has had the option to make positive requirements in such cases as those we are discussing and many others, so it is no surprise to see this in the Bill.
The new Bill establishes domestic abuse prevention orders that enable judges to require perpetrators to attend behaviour change interventions as part of their sentence. Again, they exist already. It is estimated that a need for 15,200 extra places on behaviour change and drug or alcohol programmes could spring out of the possible requirement to take positive action. I do not stand in criticism—I am looking forward to 15,200 extra people going through behaviour change courses—but there are currently no proposals to ensure that such interventions meet any sort of minimum standard.
I feel as though my hon. Friend the Member for Hove and I have been constantly asking the Minister about how we will review things and how we will know how they are going. Currently, there is no minimum standard for positive actions ordered by the court. At worst, poorly run programmes can increase the risk to victims. I know the Government would not want to put themselves in a position where a programme that they have funded would ever harm a victim. At best, a poor programme is a waste of money. We can all agree that there is no room for waste in the field of domestic abuse, with services up and down the country already strapped for cash. With the necessary quality assurance amendments, however, the Bill could mark a new era in which perpetrators are held to account and given genuine chances to change.
In a sort of change theory moment, the fact that I just stood in the House of Commons and said my last sentence proves that people can change, because I did not have any time and/or respect for behaviour change programmes when I worked in domestic abuse services, largely because of some of the experiences that I am referring to and the need for such programmes to be quality assured. I saw waste, and what I saw very rarely ended up being rooted in the safety of the victim. Provision is at best patchy; there have been years of problems with evidence-based programmes for perpetrators, and it seems patchy even in areas that one might think would be compelled to deliver them, such as probation.
I have seen instances of one local authority in the area where I worked putting out a tender for perpetrator programmes. It was quite a generous tender at the time—we are talking about seven years ago—because there was not much money going around. It was around £100,000 for a small local authority area—not Birmingham, because we would need millions—to offer services to around 100 perpetrators and to set up a programme to do that. During the tendering process, I saw the amount of the money that was to go to the specialist sector. The commissioners recognise—better than in most areas—that we should not be commissioning perpetrator services without the relative support being provided to victims. That has definitely happened, because, as we heard yesterday, good people and good local authorities working in the borough spoke up and said, “Hang on a minute. You can’t commission these services for perpetrators if you don’t also put in place support for the victims.”
I see the Minister nodding. It is now long agreed that that is the right way to handle this issue. However, just as an aside on what I would call patriarchal commissioning, there was £100,000 to deal with the perpetrators on the programme, and £18,000 to deal with the victims and their children. There is a balance between how much we value each thing in the system. I saw more than an unfair commissioning round, which I have been part of millions of times. Many providers who never had expertise in work with victims or perpetrators of domestic abuse saw on the council website that there was £100,000 being offered to people who could work with perpetrators, and, say, the local housing association would suddenly say “We know loads about perpetrators. We will set up a perpetrator programme.” Seven years ago when everything was being cut we used to say “diversify or die”, so if there was £100,000 they would say “We will do that.” Smaller organisations would say “We can go on Google and write a perpetrator programme.” I kid you not. That is the kind of thing that would go on.
The commissioners in our local authorities, with the best will in the world, who were in this instance doing lots of things right, were not experts in what a good quality-assured perpetrator programme might be—not at all. In the commissioning round we were commissioned, as the only violence against women and girls organisation in the area, to do the victim support work. A host of different people suddenly wanted a chat with us, to get our expertise in the commissioning round. Commissioning can make someone very popular. Never has my organisation been more popular than when probation was privatised. Every company from all over the country wanted a chat about our expert services.
A wide variety of agencies said they could handle perpetrators. In that instance the right thing happened—and fair play to the commissioners. The contract went to probation in the end, and before it could be realised probation withdrew on the grounds that it could not deliver the programme safely on behalf of the victims, because of the contract arrangements. In the end the programme did not happen. I point that out only because in that local authority area there were organisations such as the one I worked for, which punched well above its weight in lobbying and working with local authorities in the area. Also there was a decent head of what was then the community interest company in probation services, who did the right thing. However, anyone else who had been given the contract would probably just have delivered it along lines. It would have been monitored by a local authority provider commissioner with no idea about change management with offenders. With the greatest respect to local authorities, what do their commissioners know about that?
I used to go and speak to all the judges about female offenders and say, “Send them on our programmes.” I foresee a situation in which a judge, rightly looking around, thinks, “I’ve got this leaflet; I can do a positive thing. I am going to send this person”—and we have no idea, and the court has no understanding, whether where the person is being sent is any good. There is nothing in the Bill to provide quality assurance of those positive requirements.
Quality assurance provisions would be written into law only to apply to the DAPOs, but the expectation is that they would set a benchmark for all behaviour interventions commissioned by public bodies, raising, for example, the standard of work in probation. The probation service that I mentioned withdrew from the work in question out of morality and good sense, but a report from Her Majesty’s inspectorate of probation on the provision of domestic abuse rehabilitation activities demonstrates how urgently that is needed:
“Some responsible officers were delivering the domestic abuse RAR”—
the rehabilitation activity requirement—
“on a one-to-one basis, borrowing resources from colleagues, browsing the internet for resources or devising their own one-to-one interventions. There was no system in place to make sure that interventions were evidence-based and delivered safely and effectively”.
Perhaps my seven-years-ago story speaks to what was found in that probation report. The Minister spoke earlier about something else that had progressed over five years. I think that in the area I have been discussing, we have progressed vastly. The reason why I say that is that my opinion of perpetrator programmes has followed the evidence—I can change, proving that change is possible. I followed the science, as the Government like to say at the moment. The evidence base is now strong where previously it was not, so it presents an opportunity.
Victoria Atkins
On coronavirus, we have been in constant contact with charities and the police locally to understand how DVPOs are working. Where there have been problems, as in the hon. Lady’s point about homelessness, we have sent out guidance repeatedly to local authorities to say that they must include perpetrators in their rehousing programmes, precisely so that DVPOs can be enforced.
Jess Phillips
It will be a very thin silver lining to what has been an enormous cloud over our country. The Minister is absolutely right: we have been learning some things in this period. Because of the availability of resource in our police forces as a result of the reduction in other areas of crime, this will in some regards be a high point—a gold standard—in terms of how we act in domestic violence cases. If there was certainty in a police force area, built in partnership with a local authority, that there would absolutely be a place for a perpetrator to stay, I can almost guarantee that the police would be much more active in the DVPO area, because that is what we have seen during the coronavirus crisis.
There should be five elements of a perpetrator strategy. We need criminal justice systems and other public and voluntary services, such as housing, health and education. We need training, and clever and tough working, to hold perpetrators to account. We need proven interventions and behaviour change programmes for all perpetrators available everywhere, and we need education to prevent and raise awareness of abusive behaviours. We need regulation to end poorly run programmes, some of which are actually dangerous. And we need ongoing research to ensure that we know what stops abuse, particularly within groups that are currently under-served by these kinds of preventive interventions, such as LGBT groups.
Essentially, money is needed. A sustainable and predictable source of funding would save millions in policing, justice and health costs—perhaps even billions, given the Home Office costings on the cost of domestic abuse. Leadership is ultimately needed to make it happen. It is pleasing to see that the domestic abuse commissioner is taking a proactive stance on this. She will need backing from Ministers in all Departments to look beyond their important response to victims to the other side of the coin: the people causing the harm.
The Chair
I will call Nickie Aiken in a second, but I am aware that there will be a Division at about 4.36 pm. I am afraid that if a Division is called and the Committee is still sitting, I will have to suspend for at least 45 minutes. Members might want to bear that in mind.
Nickie Aiken (Cities of London and Westminster) (Con)
I just want to provide my experience of being a council leader with responsibility for commissioning perpetrator courses and services, which does not mirror what the hon. Member for Birmingham, Yardley outlined. I have always found commissioners to be excellent, to really understand the process and to appreciate that this is public money.
For our commissioning services, we worked with the former Mayor of London, who really understood how important perpetrator programmes are, as did the then deputy Mayor for policing, who is now Lord Greenhalgh and is a Minister. I supported their view that it was about payment on results. That is one of the main issues in perpetrator services, children’s services and public protection services: they should be about results.
I am extremely proud of this Bill and this clause, because it takes to heart the fact that, although we have to support victims, if we are ever going to bring domestic abuse to an end, particularly in families, it has to be about the perpetrator too.
There are many brilliant services today, such as SafeLives—which I think is based in the south-west—that take a family view on this. I welcome the clause and I do not support the amendment. I think the Bill is outstanding, and that it will bring perpetrators to book while also supporting victims.
Alex Chalk
It is a pleasure to follow my hon. Friend’s contribution, and I entirely agree with its content. I think there is agreement across the House that we want credibility and consistency for perpetrator programmes to ensure that individuals who have been led into error by their behaviour do not continue to do so, at dramatic cost to both individuals and society more widely. We are absolutely clear that if we do not hold perpetrators to account for their actions, we will not be able to tackle the root cause of domestic abuse. We agree that it is essential for any perpetrator programme imposed as part of a DAPO to provide a high-quality, safe and effective intervention.
Although we support the aim of the amendments, we respectfully think that there is a better way of achieving the end result that the hon. Member for Birmingham, Yardley seeks. At the heart of our response is the idea that quality assurance needs to be looked at in the round, in relation to all domestic abuse perpetrator programmes, not just those imposed by a DAPO, as is provided for in the amendments. Before I develop that point, I will say that consistency and credibility are important not just for the perpetrator or the victim, but for the courts themselves, so that they have confidence that when they impose orders, they will get results. Also, courts may not feel the need to lock someone up if they can reach for an order—whether a DAPO or a community order—in which they have confidence.
It is really important to note that not all domestic abuse perpetrator programmes come via a DAPO. First, a family court could make a referral into a perpetrator programme by, for example, imposing an activity, direction or condition in connection with a child arrangement order. Secondly, the police, probation service and local authorities could work together to impose a programme as part of an integrated offender management programme. Thirdly, there could even be self-referral: there may be individuals who have had a long, hard look at their behaviour and thought, “I need to address this. I am, off my own bat, going to seek a referral into such a programme.” Respect runs a helpline offering information and advice to people who have perpetrated abuse and want to stop.
I am at pains to emphasise that while we want to make sure any programmes delivered via the gateway of a DAPO achieve high standards and are consistent and credible, we should not forget that other programmes are being delivered outwith DAPOs, via different gateways, and we want to ensure that those programmes meet the same standard. Otherwise, we would end up in the perverse and unsatisfactory situation of having a DAPO gateway programme that is great, but other ones that are not.
We propose to take this work forward by using some of the £10 million announced by the Chancellor in this year’s Budget for the development of new interventions for domestic abuse perpetrators. We will work with the domestic abuse commissioner and specialist domestic abuse organisations—along the lines that the hon. Member for Birmingham, Yardley indicated—to undertake mapping and evaluation of the range of perpetrator interventions currently available, and explore what works for different models of quality assurance for domestic abuse perpetrator behaviour change programmes.
By the way, there is already a wealth of promising evidence that we can draw on as part of this work. For example, the Government have already invested through the police transformation fund in a number of innovative approaches to managing perpetrators, including the Drive project led by Respect and SafeLives, to which the hon. Member for Birmingham, Yardley alluded, as well as the whole-system approach to domestic abuse in Northumbria and the Women’s Aid “Make a Change” programme. There is a lot out there, and we need to draw the threads together.
We continue to support the important work of Respect, which is helping to ensure through its service standards that programmes targeted at a range of perpetrators are delivered safely and effectively. We will also draw on the ongoing work of the Ministry of Justice’s correctional services accreditation and advice panel, which accredits programmes for perpetrators who have been convicted of an offence.
Alex Chalk
It is important to note that clause 66 contains important provisions that allow for exactly what we want to achieve.
Turning to new clause 27 on the perpetrator strategy, I reassure the hon. Member for Birmingham, Yardley that we have heard the call to action for a perpetrator strategy. We commend the work of the Drive partnership of Respect, SafeLifes and Social Finance, who have done so much to change the narrative and to shift the focus from, “Why doesn’t she leave?”, to, “Why doesn’t he stop?”.
I want to be absolutely clear that we fully recognise the need for increased focus on perpetrators and are ambitious in our aim to transform the response to those who have caused this appalling harm, but to have an increased focus on tackling perpetrators, we do not need to make inflexible provision in the Bill for a one-off strategy. We have made clear our commitment to this work through our allocation of £10 million in this year’s Budget for preventive work with perpetrators. Over the past three years, we have funded a range of innovative approaches to working with perpetrators and we are beginning to build a solid evidence base on what works through some of the programmes I have mentioned: Drive, a whole-system approach to tackling domestic abuse, and “Make a Change”.
We have undertaken work to improve the response to the perpetrators through the criminal justice system. As was set out in the consultation response published alongside the draft Bill, we are taking action to improve the identification and risk assessment of perpetrators. The College of Policing has published key principles for police on the management of serial and dangerous domestic abuse perpetrators, and we are expanding the range of interventions available to offenders serving community sentences.
We recognise the concerns; that is why we want to ensure that we develop and properly test a whole-system approach, in particular through the piloting of DAPOs. It might well prove counterproductive to develop a new strategy without awaiting the learning from those pilots. I hope that, in the light of our intention to work towards that fully comprehensive package of perpetrator programmes and our wider programme of work to confront and change perpetrator behaviours, the hon. Member for Birmingham, Yardley will see her way to withdrawing the amendment.
Jess Phillips
I recognise what the Minister says about the fact that perpetrator programmes are used elsewhere. Very often in children’s services, I have seen people sent on perpetrator programmes that, I am afraid to say, are useless. If only everything was as perfect as it is in Westminster.
Jess Phillips
I apologise if I did not cover all the boroughs in London. I did not come up with the amendments all by myself; the specialist sector is working with us to ask for these things, and the reality is that, as sometimes happens in this place, we will say how something is on the ground and we will be told that that is not the case. We will be told, “Actually, no; it’s going to be fine because we are going to have a whole-system approach.”
What the Minister says about a whole-system approach is needed wherever perpetrator programmes are issued, rather than just in DAPOs. I could not agree with him more on that point. I shall allow him as many interventions as he likes, and I will speak for as long as it takes for him to get the answer. If he is saying to me that, at the other end of this very notable approach and funding that the Home Office and the Government are putting in place, we will end up with an accredited system that stops the bad practice and the poor commissioning of services, of course I will withdraw the amendment.
Is the Minister saying that we will work towards a standard that will have to be met and that will be compelled—not dissimilar to the standard that we will hopefully come on to tomorrow, where we compel local authorities with a duty? There, I believe, we will be writing a set of standards that the local authority in its commissioning process has to live by, so that it cannot just say, “We’re doing any old domestic abuse services.” There has long been talk at MHCLG about having standards to go with any duty. Is the Minister telling me that we will end up with an accreditation system, which is essentially what I seek?
Alex Chalk
The whole point of the approach we are taking is to seek standardisation across the piece. Words like “accreditation” can mean all sorts of things, but certainly it is the case that our absolute aim is to draw on the best practice that we have referred to and combine it with the experience we glean from the pilots to work out what we think is best practice, to clarify what that best practice is and to do everything we can to promulgate that best practice. One can use words like “accreditation” or “standardisation”, but we want to use the mechanisms within the Bill—pilot and guidance—to do precisely what the hon. Lady is aiming for. We recognise that clarity, consistency and credibility are the hallmarks of an effective order, and that is precisely what we want to achieve.
Jess Phillips
I welcome what the Minister says. I suppose the reality is that if that does not happen, I have no recourse beyond changing this Bill. Actually, I can just stand in this building and say, “Things aren’t working and we don’t have good perpetrator systems,” but it will largely fall on deaf ears. It might not—we cannot know which ears it will fall on—but, largely, when people come and say that things are not working in whatever we are talking about, it is very hard.
I have a Bill in front of me, and I can attempt to compel this to happen. However, on this occasion—because I would never describe the Minister as having deaf ears, and I am quite confident in my own ability to keep on raising the issue until the right thing happens—I accept and welcome what the Minister has outlined, and I look forward to working on it with him, the commissioner and the sector. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 33 ordered to stand part of the Bill.
Clause 34
Further provision about electronic monitoring requirements
Question proposed, That the clause stand part of the Bill.
Alex Chalk
Clause 34 sets out the circumstances in which a court can impose electronic monitoring requirements on a person as part of an order, and the nature of such requirements. The clause specifies that the electronic monitoring requirements may not be imposed if the person is not present at the hearing. The clause also specifies that, if there is a person other than the perpetrator who will need to co-operate with the monitoring requirements in order for them to be practicable, they will need to give their consent before the requirements can be imposed. That may include, for example, the occupier of the premises where the perpetrator lives. The court must also have been notified by the Secretary of State that electronic monitoring requirements are available in the area, and it must be satisfied that the provision can be made under the arrangements available. Any order that imposes electronic monitoring requirements must also specify the person who will be responsible for their monitoring.
Where electronic monitoring requirements are imposed, the person must submit to being fitted with the necessary apparatus and to the installation of any associated equipment, and they must co-operate with any inspection or repair that is required. They must not interfere with the apparatus, and they must keep it in working order—for example, by keeping it charged. I trust that the Committee will agree that proper procedures should be in place when a decision is made by the court that electronic monitoring is required.
Question put and agreed to.
Clause 34 accordingly ordered to stand part of the Bill.
Clause 35 ordered to stand part of the Bill.
Clause 36
Breach of order
Alex Chalk
I beg to move amendment 31, in clause 36, page 23, line 29, leave out
“section 154(1) of the Criminal Justice Act 2003”
and insert
“paragraph 24(2) of Schedule 22 to the Sentencing Act 2020”.
This amendment, and amendments 32, 34, 35 and 37, update references to existing legislation in the Bill to refer to the equivalent provision made by the Sentencing Bill that was introduced into Parliament in March (which will introduce the new Sentencing Code).
The Chair
With this it will be convenient to consider the following:
Government amendments 32, 34, 35 and 37.
New clause 15—Consequential amendments of the Sentencing Code—
“(1) The Sentencing Code is amended as follows.
(2) In section 80 (order for conditional discharge), in subsection (3), at the end insert—
‘(f) section 36(6) (breach of domestic abuse protection order).’
(3) In Chapter 6 of Part 11 (other behaviour orders), before section 379 (but after the heading ‘Other orders’) insert—
‘378A Domestic abuse protection orders
See Part 3 of the Domestic Abuse Act 2020 (and in particular section 28(3) of that Act) for the power of a court to make a domestic abuse protection order when dealing with an offender for an offence.’”
This New Clause makes two consequential amendments to the Sentencing Code as a result of Part 3 of the Bill. The first adds a reference to clause 36(6) to the list of cases where an order for conditional discharge is not available. The second inserts a signpost to Part 3 of the Bill into Part 11 of the Sentencing Code, which deals with behaviour orders.
Alex Chalk
Am I permitted to speak to all the amendments? They are all quite technical.
The Chair
At this stage, we are debating all the amendments I referred to. You have to move only amendment 31 at this moment, but you can talk about them all.
Alex Chalk
That is eminently sensible.
These are minor and technical Government amendments. Clause 36 provides that a breach of a DAPO is a criminal offence. Where someone is convicted of such an offence, clause 36(6) provides that a conditional discharge is not an option open to the court in respect of the offence. As I am sure hon. Members are aware, a conditional discharge means that the offender is released and no further action is taken unless the offender commits another offence within the specified period, at which point they can be sentenced for the first offence at the same time as the new offence.
Misconduct by members of the armed forces and by civilians subject to service discipline, which is an offence in England and Wales—or would be, if it took place there—may also be charged as a service offence under the disciplinary regime of the Armed Forces Act 2006. It means that a breach of a DAPO may come before the court martial and other service courts.
Amendment 33 to clause 36—I will come to amendments 31 and 32 in a moment—makes equivalent provision to clause 36(6), whereas—
The Chair
Order. Amendment 33 is not on the list, so it is not really worth talking about—[Interruption.] It is definitely later on my list, so we may have different lists. Oh, go on—talk about it.
Alex Chalk
It is that kind of flexibility in the Chair that we have grown to love and admire. Thank you very much, Mr Bone.
I was saying that amendment 33 makes equivalent provision to clause 36(6). When a service court convicts someone of the offence of a breach of a DAPO, a conditional discharge is not an option that is open to the service court in respect of the offence. Amendments 38 and 39 would make consequential amendments to the extent clause—clause 71—to ensure that the extent of new clause 36(6)(a), inserted by amendment 33, aligns with the extent of the Armed Forces Act 2016. That is a long-winded way of saying that we need to make sure that this measure dovetails with the 2016 Act in respect of the conditional discharge implications.
Amendments 31, 32, 34, 35 and 37, which I hope are on your list Mr Bone, make amendments to part 3 of the Bill—as we know, part 3 provides for DAPOs—and clause 59—
“Prohibition of cross-examination in person in family proceedings”—
and are consequential on the sentencing code. In turn, new clause 15 makes two consequential amendments to the sentencing code as a result of part 3. The first adds a reference to clause 36(6) to the list of cases where an order for conditional discharge is not available. The second inserts a signpost to part 3 of the Bill into part 11 of the sentencing code, which deals with behaviour orders, such as a DAPO.
Members may be asking, “What on earth is the Sentencing Bill?” The Sentencing Bill, which was introduced in the House of Lords on 5 March 2020, provides for the new sentencing code. The new code, which will be transformational for practitioners, is a consolidation of the law governing sentencing procedure in England and Wales. It brings together the procedural provisions that sentencing courts need to rely on during the sentencing process, and in doing so it aims to ensure that the law relating to sentencing procedure is readily comprehensible, and operates within a clear framework and as efficiently as possible.
Amendment 31 agreed to.
Amendments made: 32, in clause 36, page 23, line 36, leave out from “under” to “(conditional” and insert “section 80 of the Sentencing Code”.
See the explanatory statement for amendment 31.
Amendment 33, in clause 36, page 23, line 37, at end insert—
“(6A) If a person is convicted of an offence under section 42 of the Armed Forces Act 2006 as respects which the corresponding offence under the law of England and Wales (within the meaning given by that section) is an offence under this section, it is not open to the service court that convicted the person to make, in respect of the offence, an order under section 185 of that Act (conditional discharge).
In this subsection “service court” means the Court Martial or the Service Civilian Court.”.—(Alex Chalk.)
Conduct that is an offence under the law of England and Wales (or would be if it took place there) may be charged as a service offence, so a breach of a domestic abuse protection order may be dealt with by a service court. This amendment therefore makes provision corresponding to that made by clause 36(6), prohibiting a service court from giving a person a conditional discharge for breaching an order.
Clause 36, as amended, ordered to stand part of the Bill.
Clause 37
Arrest for breach of order
Question proposed, That the clause stand part of the Bill.
Alex Chalk
Clause 37 relates to arrest for breach of order and it makes provision for breach of a domestic abuse protection order to be dealt with as a civil matter— that is, as a contempt of court. A breach of an order is a criminal offence under clause 36, which we did not debate, whereby a police officer can make an arrest without a warrant under powers in the Police and Criminal Evidence Act 1984.
However, we understand that some victims may be concerned about their partner or ex-partner being convicted of a criminal offence for breaching the order. Where an order is made by the High Court, the family court or the county court, clause 37 makes provision for the victim—the original applicant for the order—or any other person with leave of the judge to apply to the court for a warrant of arrest to be issued. That means that the court can then deal with the breach as a civil matter as a contempt of court. We consider that this allows effective action to be taken by the court following breach of an order, while still providing an option for victims who do not wish to criminalise their partner or ex-partner.
Schedule 1 makes further provision regarding remand under clause 37, where breach of a DAPO is being dealt with by the court as a civil matter. It sets out the procedure whereby the court may remand the person who has been arrested for breach. The process set out is consistent with existing law and replicates the approach the court already takes in regard to remand in such cases. It is sometimes necessary for the court to adjourn the hearing in order to allow for evidence to be prepared. In such cases, the court may decide to remand the person in custody or on bail.
Remand would usually only be used in cases where the court considers that the person arrested for breach is at a high risk of either committing further breaches or evading the return hearing. That may include, for example, if the court considers that person a flight risk.
Clause 37 accordingly ordered to stand part of the Bill.
Schedule 1 agreed to.
Clause 38
Notification requirements
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
Clause 38 provides that all DAPOs will impose notification requirements on the perpetrator, requiring them to notify the police of certain personal details within three days, beginning with the day on which the order is made. The perpetrator will have to provide details of their name, together with any aliases that they use, their home address and any changes to those details. This will help to ensure the police have the right information at the right time in order to monitor the perpetrator’s whereabouts and the risk posed to the victim.
These provisions have been drafted to capture a number of different scenarios, including if the perpetrator has no one fixed address, leaves and then returns to the UK or becomes homeless, helping to ensure their compliance with the notification requirements. There is also a power for the Home Secretary to specify by regulations further notification requirements, which a court may attach to a DAPO on a case-by-case basis, as appropriate. For example, details of the perpetrator’s work place, whether they hold a firearms licence and details of new applications for a spousal visa.
We will use the pilot of the orders to assess whether the current provisions are sufficient or whether it is necessary for the police to be notified of additional information by the perpetrator in order to protect victims. If so, this can be set out in regulations at a later stage.
Question put and agreed to.
Clause 38 accordingly ordered to stand part of the Bill.
Clause 39 ordered to stand part of the Bill.
Clause 40
Offences relating to notification
Amendment made: 34, in clause 40, page 26, line 22, leave out “section 154(1) of the Criminal Justice Act 2003” and insert “paragraph 24(2) of Schedule 22 to the Sentencing Act 2020”.—(Alex Chalk.)
See the explanatory statement for amendment 31.
Question proposed, That the clause, as amended, stand part of the Bill.
Victoria Atkins
Clause 40 simply provides that breach of the notification requirements without reasonable excuse is an offence carrying a maximum penalty of five years imprisonment. Again, this sends a very strong message to perpetrators that the Government, as well as the courts, the agencies, the police and so on, take any breaches of these orders very seriously indeed.
Question put and agreed to.
Clause 40, as amended, accordingly ordered to stand part of the Bill.
Clause 41
Variation and discharge of orders
Question proposed, That the clause stand part of the Bill.
Alex Chalk
Clause 41 is about the variation and discharge of orders. Another example of the DAPO’s flexibility is that the requirements imposed by the order can be varied so that the courts can respond to changes over time in the perpetrator’s abusive behaviour. That is important for the complainant, so to speak, as well as for the person who is subject to the perpetrator order. It is important that he—it will usually be a he—can come back to the court to seek to vary it if appropriate. That is why the clause is drafted as it is.
Question put and agreed to.
Clause 41 accordingly ordered to stand part of the Bill.
Clauses 42 to 44 ordered to stand part of the Bill.
Clause 45
Nature of certain proceedings under this Part
Amendment made: 35, in clause 45, page 31, leave out line 15 and insert
“sections 79, 80 and 82 of the Sentencing Code”—(Alex Chalk.)
See the explanatory statement for amendment 31.
Clause 45, as amended, ordered to stand part of the Bill.
Clause 46
Special measures for witnesses
Question proposed, That the clause stand part of the Bill.
Alex Chalk
Clause 46 relates to special measures for witnesses. It ensures that victims in DAPO proceedings will be eligible for special measures when giving evidence. As some Members will know, special measures are used to assist vulnerable and intimidated witnesses to give their best evidence, and can include giving evidence from behind a screen, giving evidence remotely via a video link, giving pre-recorded evidence in chief, or giving evidence through an interpreter or another intermediary. Many witnesses in criminal and family proceedings already benefit from access to special measures when giving evidence, and we are strengthening those provisions for victims of domestic abuse in criminal proceedings through clause 58.
Question put and agreed to.
Clause 46 accordingly ordered to stand part of the Bill.
Clause 47
Guidance
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss new clause 47— Review of domestic abuse protection orders and notices—
“(1) The Secretary of State must within 12 months of this Act being passed conduct a review into the operation and use of domestic abuse protection orders and notices.
(2) The review must take account of—
(a) the extent to which domestic abuse protection orders and notices have been used;
(b) data on the effectiveness of domestic abuse protection orders and notices in tackling and preventing domestic abuse;
(c) the views of those for whose protection orders and notices have been made.
(3) In designing and conducting the review, the Secretary of State must consult—
(a) the Domestic Abuse Commissioner,
(b) the Welsh Ministers,
(c) organisations providing support to victims and perpetrators of domestic abuse,
(d) such other persons as the Secretary of State considers appropriate.
(4) Upon completion of the review, the Secretary of State must publish and lay before Parliament a report setting out—
(a) the findings of the review, and
(b) the action the Secretary of State proposes to take in response to the review.”
This new clause would ensure that both DAPOs and DAPNs are reviewed to ensure that they are operating effectively and serving the purpose that they were intended for.
Victoria Atkins
Clause 47 requires the Government to issue statutory guidance on the new notices and orders to the police, and to any third parties specified in regulations who may make a standalone application for an order. The recipients of that guidance must have regard to it when exercising their functions. The Government are also required to consult the commissioner before issuing or revising any guidance under the clause. This provision is crucial to help to ensure that frontline practitioners have the knowledge, understanding and confidence to use DAPOs effectively and consistently, in order to help victims and their children.
Topics to be covered by the guidance include how the different application pathways for a DAPO operate, when to consider applying for a DAPO and how to prepare robust application conditions, which may be included in a DAPO, and how to work with victims effectively, highlighting the importance of robust safety planning and referral to appropriate victim support services. We will develop the guidance in collaboration with the police and sector experts, ensuring that it is of high quality and relevant to the frontline practitioners using it.
Question put and agreed to.
Clause 47 accordingly ordered to stand part of the Bill.
Clause 48 ordered to stand part of the Bill.
Clause 49
Powers to make other orders in proceedings under this Part
Question proposed, That the clause stand part of the Bill.
Alex Chalk
The clause relates to powers to make other orders in proceedings under this part. I will speak briefly on this, because it is important. Clause 49 makes provision for DAPO proceedings to be included in the definition of family proceedings in the Children Act 1989 and the Family Law Act 1996, if they are taking place in the family court or the family division of the high court. In practical terms, that will ensure that family judges have access to their powers under the Children Act and the Family Law Act in the course of DAPO proceedings.
For example, if a family judge is hearing an application to make or vary a DAPO, and concerns around child contact arrangements are raised, the judge will be able to make an order under the Children Act without a separate application having to be issued. We consider that that will provide clarity and flexibility to the court, as judges will be able to use their powers under the Children Act and the Family Law Act in any DAPO proceedings to best protect victims of domestic abuse and their children.
Question put and agreed to.
Clause 49 accordingly ordered to stand part of the Bill.
Clauses 50 to 52 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Rebecca Harris.)
Medicines and Medical Devices Bill (Third sitting)
Wednesday 10th June 2020
(3 years, 10 months ago)
Public Bill CommitteesRead Full debate Medicines and Medical Devices Act 2021 View all Medicines and Medical Devices Act 2021 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 10 June 2020 - (10 Jun 2020)
The Chair
Before we resume, I remind hon. Members of the preliminary points that I made on Monday. Members will understand the need to respect social distancing guidance. I remind them to switch electronic devices to silent mode and that tea and coffee are not allowed during sittings.
The selection list for today’s sitting is available in the room. That shows how the selected amendments have been grouped for debate. Grouped amendments are generally on the same or a similar issue. Please be reminded that decisions on amendments take place not in the order in which they are debated, but in the order in which they appear on the amendment paper. The selection and grouping list shows the order of debates. Decisions on each amendment are taken when we come to the clause that the amendment affects. Again, the Hansard Reporters will be most grateful if Members could email any electronic copies of their speaking notes to hansardnotes@parliament.uk.
Clause 17
Suspension notices
Alex Norris (Nottingham North) (Lab/Co-op)
I beg to move amendment 29, in clause 17, page 10, line 12, at end insert—
“(f) advertising it.”
This amendment allows the enforcement authority to prevent an individual who has been served a suspension note from advertising their product.
It is a pleasure to be back. Monday’s discussions were of a high quality and in a good spirit, which is what we need at this time, so I am glad to be here and back at it.
This is a short amendment: again, I want to talk about the issue rather than do anything else. Clause 17 sets the context and is mirrored in clause 18, to which I have tabled amendment 18. It sets out what the Secretary of State or the enforcement authority can do in relation to a faulty product, a medical device that is presumably dangerous or certainly not known to be safe. It includes a list of five things that can be prohibited under either a suspension notice or a safety notice. This prevents an individual from
“(a) supplying the medical device;
(b) offering to supply it;
(c) agreeing to supply it;
(d) exposing it for supply;
(e) possessing it for supply.”
I would add a sixth one—advertising it for supply. I flagged this up with the Minister the other day and will obviously be interested to hear her reply. I am conscious that she has the collective might of the legal brains of the whole Government. It could be that I have spotted a gap, or that I have not. That depends on whether advertising is covered by “offering to supply it” or “exposing it for supply”.
I want to talk about a particular phenomenon—the current way in which clickbait is used. For example, over the weekend, I saw an article that normally would be up my street. It said, “Jason Statham says he no longer needs to do the ‘Fast and Furious’ films”. I am a big fan of the “Fast and Furious” franchise, and that would grieve me enormously. I did not click on the article, because it was obviously nonsense, but I later saw an article about the very same thing. It mentioned Jason Statham and other people, and when you click on that type of thing, it takes you through to bitcoin. It basically said that he does not need to do films anymore, because he has made so much money on bitcoin and so can you. There is an argument to be had about cryptocurrencies, but the issue there is people being shown one thing that actually leads them to something else.
In the medical devices space, it is very easy to see equivalent things for people to click on. They will show someone with dramatic weight loss and then say, “You won’t believe how they did it.” In this case, there will be a picture of a medical device, and the idea is that someone says, “Wow! I’ve found a magical device. I can do the same. I can do it just like this celebrity.” Then they click through and it takes them to diet pills. I would argue that at no point there—there is no price; the article may not name or price the product, but just picture the product—have those responsible exposed it for supply, because it would be possible to argue that we literally cannot buy it, it is just a picture and certainly it has not been offered for supply.
Again, I am happy to take the lawyers’ guidance on this, and I hope that the Minister will help us with that. I just want to ascertain whether that gap—the thing that would legitimise a product, the demonstrating of it for another end—is one that we have to close.
The Parliamentary Under-Secretary of State for Health and Social Care (Jo Churchill)
I would also like to say what a pleasure it is to resume under your chairmanship, Mr Davies.
Amendment 29 seeks to amend clause 17 with regard to the suspension notices. I understand totally why hon. Members are looking to double-check where we are. The clause provides an enforcement authority with the power to serve a suspension notice on a person, where doing so is considered necessary to restrict the availability of a medical device in order to protect health and safety. It lists a number of prohibitions that may be imposed, and seeks to add a specific prohibition on advertising a medical device.
The Government recognise that the intention behind the amendment is to equip the enforcement agency with the ability to prohibit a recipient of a suspension notice from advertising a medical device where there is a need to protect health and safety. I assure hon. Members that the enforcement authority has the ability to do what the hon. Member for Nottingham North is asking and prohibit the advertising of a product already catered for in the clause. That is already in the Bill as it is currently drafted.
Hon. Members will note that prohibitions that may be impose include, in clause 17(2)(b), “offering to supply”, which encompasses advertising or an advertisement. Although I am grateful for the probe, I respectfully ask the hon. Gentleman to withdraw the amendment.
Alex Norris
I am content with that. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 ordered to stand part of the Bill.
Clause 18
Safety notices
Alex Norris
I beg to move amendment 18, in clause 18, page 10, line 34, at end insert—
“(f) advertising it.”
This amendment allows the enforcement authority to prevent an individual who has been served a safety note from advertising their product.
Alex Norris
This is exactly the point that I just made, so I will not labour it.
Jo Churchill
My explanation covered both points. Clause 18 provides an enforcement authority with the power to serve a safety notice on a person where doing so is considered necessary to restrict the availability of a medical device in order to protect health and safety. It provides the enforcement authority with discretion about the prohibitions that may be imposed. The amendment seeks to add a specific prohibition on advertising a medical device. We recognise that the purpose behind it is to equip the enforcement agency. I would like to reassure hon. Members that that sits in the Bill. On that basis, I commend the clause to the Committee.
Alex Norris
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 ordered to stand part of the Bill.
Clauses 19 to 23 ordered to stand part of the Bill.
Clause 24
Defence of due diligence
Jo Churchill
I beg to move amendment 2, in clause 24, page 13, line 26, leave out ‘case’ and insert
‘proceedings for such an offence’.
This amendment, and amendments 3, 4, 5, 6 and 7, amend certain provisions to ensure they operate effectively in relation to Scotland.
The Chair
With this it will be convenient to discuss the following:
Government amendments 3 and 4.
Clause stand part.
Government amendments 5 to 7.
Jo Churchill
Amendments 2 to 7 relate to the clauses about defences available for offences under clause 23 and regulation 60A to be inserted into the Medical Devices Regulations 2002 by schedule 2.
Clause 23 will provide that it is an offence to fail to comply with a compliance, suspension, safety or information notice. Schedule 2 makes it an offence to fail to comply with certain provisions of the Medical Devices Regulations 2002. Further, the Bill provides that a defence of due diligence will be available with respect to each of those offences. That means that a person charged with an offence under either clause 23 or regulation 60A will be able to argue that they have not committed an offence because they took reasonable steps to avoid doing so.
The provisions that make those defences available are in clause 24 and schedule 2. It is those provisions that we seek to amend. Amendments 2 to 4 are to clause 24 and amendments 5 to 7 are to schedule 2.
Alex Norris
I do not have an awful lot to say. I am comfortable with the amendments, and I know that the hon. Member for Central Ayrshire is, too, as she put her name to them. I always find it reassuring when there are Government amendments during Committee, as it means they are still reading the Bill, which is a good thing. So, yes, we are content.
Jo Churchill
On that basis I commend the amendment to the Committee.
Amendment 2 agreed to.
Amendments made: 3, in clause 24, page 13, line 32, after ‘hearing’ insert ‘of the proceedings’.
See the explanatory statement for Amendment 2.
Amendment 4, in clause 24, page 14, line 2, at the end insert ‘, and
(b) the reference in subsection (3) to “the hearing of the proceedings” is to be read as a reference to “the trial diet”.’—(Jo Churchill.)
See the explanatory statement for Amendment 2.
Clause 24 , as amended, ordered to stand part of the Bill.
Clauses 25 and 26 ordered to stand part of the Bill.
Schedule 1
Medical devices: civil sanctions
Alex Norris
I beg to move amendment 20, in schedule 1, page 31, line 16, after ‘guidance’ insert
‘within three months of this Act receiving Royal Assent’.
This amendment requires the relevant guidance relating to enforcement to be published within 3 months rather than at an undetermined time.
The schedule compels the Secretary of State to provide guidance on sanctioning powers and how they are likely to be used. Those are the new civil powers—among the bigger changes in the Bill—and the guidance will cover when they are likely to be used, the likely level of fines, and the cost recovery, which we spoke about earlier. They are clearly an area of significant interest. Those civil powers are new and important, and we will cover them a bit when we debate the next amendment. At the moment, schedule 1 states that:
“The Secretary of State must prepare and publish guidance”.
That is it. The amendment seeks for that to be done within three months. Three months might not be the right period of time, but I am keen to test when we are likely to see the guidance and whether we should put a bit of structure around that.
Jo Churchill
I would like first to address the intention behind the amendment. I recognise that it is driven by the desire to ensure that the Government issue guidance on the new civil sanctions regime within three months of the Bill gaining Royal Assent. The new civil sanctions regime will complement the consolidation of the current enforcement regime, enabling the Medicines and Healthcare products Regulatory Agency to impose a monetary penalty, an enforcement cost and a recovery notice, or to accept an enforcement undertaking as an alternative to criminal prosecutions. That will enhance the MHRA’s ability to incentivise compliance with the Medical Devices Regulations 2002.
Under paragraph 13 of schedule 1, the Secretary of State has to publish guidance on the new civil sanctions regime. However, the timeframe for doing so is not specified on the face of the Bill. Before it is fully operational, the new civil sanctions regime provided for by the Bill will require further provision, to be set out in supplementary regulations made under paragraph 9 of schedule 1. The regulations will cover matters such as enforcement and monitoring of compliance with enforcement undertakings and appeals.
Clause 40 provides that any regulations made under paragraph 9 of schedule 1 must be consulted on. There needs to be enough time to do that, which is why a three-month period is perhaps too truncated. The Government wish to allow sufficient time for such a consultation on these matters before we make the regulations, in order to ensure that they best fit the situation that we are trying to enforce. As I have explained, the civil sanctions regime will not be fully effective before the regulations are made. Under paragraph 13 of schedule 1, the Secretary of State must also consult before issuing guidance on the new regime.
It is right that we consider the views of stakeholders. As we discussed at length on Monday, this is about getting it right for patients and all stakeholders before we bring the regulations into force. It is important that we allow sufficient time to engage effectively and to ensure that we act in the best interests of both patients and the healthcare sector. The effect of the amendment would be that the Government are required to consult on, and publish guidance on, the civil sanctions within a tight three-month period before the regulations have been made, and at a point when the consultation might still be ongoing, so that we arrive at the best place.
Paragraph 13 of schedule 1 already places a duty on the Secretary of State to publish the guidance in order to be transparent, and the new civil sanctions regime will require consultation and secondary legislation. It is therefore impractical to specify on the face of the Bill that we would have a timeframe for doing so. On that basis, I hope that the hon. Member understands that we wish to get this right, and that he will withdraw the amendment.
Alex Norris
I am happy with that, certainly for the purpose of greater consultation, because a theme in the written evidence is that the sector wants to continue to talk about such things and get them right. We will return to this issue when we debate the next amendment.
I hope the Government will not leave it too long. There is a very important bit of guidance that the Secretary of State is compelled to publish under the Modern Slavery Act 2015, but we have still not seen it. The regulations are likely to be less challenging than that. I do not like the open-ended space, so I hope the Government will move on precipitously. On the basis of the Minister’s answer, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Alex Norris
I beg to move amendment 21, in schedule 1, page 32, line 18, leave out “from time to time” and insert “every 12 months”.
This amendment requires the Secretary of State to report back on their use of civil sanctions every year rather than at an undetermined frequency
Again, this helps us to delve into the new sanctions regime and to talk about the Medicines and Healthcare products Regulatory Agency. As we see from the written evidence, there is a lot of interest in that. The Bill seems to do two things, certainly regarding the Medicines and Healthcare Products Regulatory Agency: consolidate disparate bits of legislation that govern its activity, and provide it with new civil powers.
Jo Churchill
Once again, I recognise that the hon. Gentleman is probing, to ensure we make good legislation. For that, I am extremely grateful.
The Government have every intention of providing greater transparency about the safety and effectiveness of medical devices on the UK market, including on how our use of civil sanctions will achieve that aim. On that basis, I confirm that the Cumberlege report will definitely be with us on 8 July, which I do not think I stated during proceedings on Monday. I take on board the hon. Gentleman’s point that we may well be looking at things in the round.
Civil sanctions will provide an alternative to criminal prosecution where the latter is not suitable. If, for example, a breach is judged to have had the potential to cause harm but it does not, the civil sanction is a second tool in the toolbox. As the hon. Gentleman said, there have been very few prosecutions in the last decade. Criminal prosecutions can be used where the breach of regulations leads to a serious incident or death, or where a manufacturer has directly contravened the conditions set out in a safety or suspension notice. As I am sure he will agree, other incidents very often need a flag raising, and that is the point of bringing civil sanctions into the legislation.
Currently, as the hon. Gentleman said, the Secretary of State is committed, under paragraph 15 of schedule 1, to publishing reports on the use of civil sanctions from time to time. The requirement to publish reports on the use of civil sanctions is in line with existing obligations on other Government agencies that already operate a civil sanctions regime for their sector. The Environment Agency is one—in respect of environmental civil sanctions—while the Secretary of State for Business, Energy and Industrial Strategy, who is responsible for enforcing the Ecodesign for Energy-Related Products Regulations 2010, is another. Those regulations explicitly state that reports on the use of civil sanctions will be published “from time to time”.
The new civil sanction regime would require supplementary legislation, as per paragraph 9 of schedule 1. A consultation on the supplementary legislation would be necessary to ensure that the new regime is operational. I assure Members that the Government intend to publish reports on their use of those measures at regular and appropriate intervals, and the hon. Gentleman will bring me up on that. The Government may indeed decide that reporting annually is appropriate. However, as the new regime will require secondary legislation, which must be consulted on before it comes into force, it is not practical to specify at this point the frequency of Government reports on the use of civil sanctions.
On the hon. Gentleman’s specific point about burden of proof and how we arrived at that, I will write to him. On that basis, I invite him to withdraw the amendment.
Alex Norris
On the principle of civil sanctions, we are content. I am really grateful to the Minister for her offer to write to me about the burden of proof, and I will definitely take her up on that. It is important to reflect on why that is different in different cases.
I meant to refer to the potential to do harm, which is something worth reflecting on that, and we can talk about it in the remaining stages. At the risk of going into pub chat—if only—let us imagine that I throw a stone at someone. Whether I hit or miss, have I committed an offence? Does it matter that I have good or poor aim? When it comes to medical devices, if we find something with the potential to do significant harm, the fact that it has not yet done so would certainly not be a good enough reason to downgrade the way in which that was treated. Again, we can reflect on that another time, and it is also tied up with the burden of proof, but on the basis of the answers so far, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 agreed to.
Clauses 27 to 29 ordered to stand part of the Bill.
Clause 30
Recall of medical device by enforcement authority
Alex Norris
I beg to move amendment 28, in clause 30, page 16, line 23, at end insert—
“(4) The Secretary of State must, within 24 months of this Act receiving Royal Assent, lay a report before Parliament reviewing uses of this clause.”
This amendment requires the Government to review any use of the recall powers made in the first 2 years of the Act.
Again, this is a simple amendment. The clause governs the recall of a medical device by the MHRA. That is of significant public interest—recall, obviously, is important to people. It is also really challenging, and we have all seen that, whether with washing machines, cars or whatever. Once devices are out there, it is hard to recall them, so we want to know that these powers are working effectively.
The obligation that the amendment would put on the Secretary of State is to provide, within two years, a report on when recall has been used. That would do two things: first, it would allow us to evaluate how effectively recall was being used; and, secondly, it would act as a further publicity tool, so that people understood that the device has been recalled and, if they were still in possession of it, that they could do something about it.
At the moment, subsection (2) states: “The authority”—the MHRA—
“may take such steps as it considers necessary to organise the return of the device”,
but the clause does not quite say anywhere that the MHRA will then tell people what it has done. If that is implied, I am probably willing to accept that answer, but I am keen for the Minister to note that the Government’s clear intent is not only to organise the recall of unsafe devices, but to publicise that significantly, such that it will be reasonable to expect people to see such publicity and therefore to act on it.
Jo Churchill
The Government consider the new recall power to be crucial to ensuring that unsafe devices are removed from the market. It is important to note, however, that subsection (3) requires that the power is used only as a last resort.
The Bill introduces this statutory power for the MHRA, on behalf of the Secretary of State, to conduct recalls on the rare occasions when a manufacturer is either unwilling to carry out a recall imposed under clause 18 or is unable to do so because the manufacturer no longer exists as an entity. I am sure Members will agree with this power, as it is intended to ensure the safety of devices for patients and, without it, there would be a gap. In the case of companies unwilling to take action, devices that are not recalled might well present risks to patients. It is right that the regulator can take action if and when companies fail to recall devices.
The statutory power also addresses an anomaly in the existing enforcement regime, whereby the MHRA has the statutory power to conduct a recall under the General Product Safety Regulations 2005 where the medical device in question meets the definition of a consumer good—typically, a low-risk medical device—but the MHRA does not currently have the commensurate statutory power to conduct recalls for higher-risk medical devices that are not also consumer goods under the GPSR. That would appear to be an inconsistency that does not align with risk to patients. I am sure all hon. Members would agree that, where possible, that is what good legislation should do, and the Bill seeks to correct that anomaly.
Alex Norris
I will not labour the point, but the Government must act not just transparently, but transparently, publicly and proactively. That is something we would be really keen on.
Matt Western (Warwick and Leamington) (Lab)
On a point of clarification, at what point does the MHRA intervene? At what point is the threshold—that is perhaps a better way of putting it—at which a recall is demanded? Depending on the product, at what point is that necessary and who bears the cost? I am not sure whether that should be covered by the clause, or whether it is simply within the remit of the MHRA.
Alex Norris
That is interesting, and if the Minister wants to intervene to address that point, I will take an intervention. Otherwise, my best guess is that it would be covered by the regs and, presumably, subject to consultation. However, I hope the Government have a clear trigger point, so that we are all clear and transparent about what will happen.
Jo Churchill
The MHRA has a specific compliance department. It works on a case-by-case basis, and it would issue a notice—see clause 18—and it would move forward on that basis with an individual recall against a company. I hope that clarifies the situation.
Alex Norris
I am grateful for that clarification. On the basis of the answer I have received, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 30 ordered to stand part of the Bill.
Clauses 31 to 36 ordered to stand part of the Bill.
Schedule 2
Offence of breaching provisions in the Medical Devices Regulations 2002
Amendments made: 5, in schedule 2, page 34, line 8, leave out “case” and insert
“proceedings for such an offence”.
See the explanatory statement for Amendment 2.
Amendment 6, in schedule 2, page 34, line 14, after “hearing” insert “of the proceedings”.
See the explanatory statement for Amendment 2.
Amendment 7, in schedule 2, page 34, line 28, at the end insert “and
(b) the reference in paragraph (3) to ‘the hearing of the proceedings’ is to be read as a reference to ‘the trial diet’.”—(Jo Churchill.)
See the explanatory statement for Amendment 2.
Schedule 2, as amended, agreed to.
Clauses 37 to 42 ordered to stand part of the Bill.
Clause 43
Commencement
Alex Norris
I beg to move amendment 19, in clause 43, page 24, line 17, leave out
“on such day or days as the Secretary of State may by regulations made by statutory instrument appoint”
and insert
“six months after this Act receives Royal Assent.”
This amendment brings the enforcement regime into force at a defined period after Royal Assent rather than at a date of the Government’s choosing.
Having accepted the principle of the new enforcement regime and seeing its potential, I am keen to know when it will be in place and what the Government’s intentions are for getting on with it. Clause 43(3) says:
“Chapters 2 and 3 of Part 3”—
the bit that governs the enforcement and disclosure around medical devices—
“come into force on such day or days as the Secretary of State may by regulations made by statutory instrument appoint.”
Basically, that means at some point in the future.
The amendment, which is in my name and the name of the hon. Member for Central Ayrshire, suggests the regime should come into force within six months of Royal Assent. As was said in our earlier discussion, I imagine that the Government want to return to consultation on that point, so that might not be the right period. We are keen to know that the Government intend to get on with it, however, because there may be some push-back from those with vested interests who do not want the scheme to go ahead. I talked about there being three prosecutions in 12 years; we are likely to see much greater activity than that, and there will be those with vested interests who do not want that to happen.
I am keen for the Government not to leave this forever. If we accept in primary legislation that the regime is going to happen and is a good idea, that is what matters, and it should happen at a defined point. I am keen to know what the Government see as the timeline for introducing it. As Parliament has decided that we will do this, I would like a firm commitment on the record that we are actually going to do it.
Jo Churchill
I am grateful to the hon. Gentleman for raising, through amendment 19, the issue of the commencement of chapters 2 and 3 of part 3 of the Bill, which is concerned with medical devices. Chapter 2 introduces a new enforcement regime that includes the civil sanctions set out in schedule 1, which we discussed. Chapter 3 concerns data and disclosure provisions, and contains a number of consequential amendments, which facilitate the introduction of the new enforcement regime in chapter 2.
On chapter 2, as I have said, a key element of the new enforcement regime is the addition of civil sanctions, which will act as a flexible, proportionate enforcement mechanism to enhance the MHRA’s ability to incentivise compliance. Supplementary regulations must be made under paragraph 9 of schedule 1 before the new civil sanctions can be fully operational. Those regulations, which could relate to matters such as the enforcement of a monetary penalty regime, monitoring compliance with an enforcement undertaking, and the provision of appeals, are subject to a consultation requirement, as set out in clause 40. It is right that we consider the views of stakeholders before bringing the regulations into force, and it is important to allow for time to engage effectively, so that we can ensure that we act in the best interests of patients, and thereby in the best interests of the healthcare sector that serves them.
The data and disclosure provisions in chapter 3 will provide greater transparency about the safety and effectiveness of medical devices on the UK market. I am sure we all agree that that is what we are after: knowing what is going where and helping whom, and, if there is an issue, being able to isolate and highlight it, and then provide a remedy. The Government are exploring how we can ensure that the new powers are as effective as possible and secure the needs of the healthcare community, patients and the wider public. It is therefore appropriate that due consideration be given to how the powers can most effectively be used before they are commenced. An amendment putting in place a deadline by which the powers must come into force could limit the MHRA’s ability to find the most effective route, and it could limit the time that MHRA has before commencement for the important process of engaging with stakeholders on the powers.
Finally, the consequential provisions in clause 36 are linked to the disapplication of the previous enforcement regime in part 2 of the Consumer Protection Act 1987. They too must be commenceable by regulations, so that they come into force at the same time as the new enforcement regime.
I reassure hon. Members that the Government are committed to bringing the enforcement, data and disclosure chapters of the Bill into force as soon as is appropriate, in order to enhance the safety of the medical devices regime, which I think we all see as important. I therefore ask the hon. Member for Nottingham North to withdraw the amendment.
Alex Norris
The final part of that answer answered my question. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 43 ordered to stand part of the Bill.
Clauses 44 to 45 ordered to stand part of the Bill.
New Clause 6
Registration of Medical Devices
‘(1) The Secretary of State shall by regulations establish a UK Registry of all devices implanted into patients on a long-term basis.
(2) The identifier details of any devices implanted into patients, on a long-term or permanent basis, must be registered.
(3) The information registered must include—
(a) The unique identifier of the patient into whom the device is implanted;
(b) The Clinician responsible for the procedure;
(c) The hospital or clinic in which the procedure is performed;
(d) A standardised description of the device;
(e) The unique identifier code of the device implanted.
(4) Efforts must be made for this unique identifier data to be gathered by barcode reader as in the trial of ‘Scan for Safety’.
(5) This Registry shall require linkage from all currently established speciality device registries, in current operation, to avoid duplication of registration.
(6) Devices without any form of specialist registry currently available shall be registered in this UK Registry.
(7) Governance structures regarding the management and access to registry data shall be established after consultation with stakeholders including but not limited to—
(a) the appropriate authorities as defined in Section 1 (4);
(b) all UK based Royal Colleges of Surgery or Radiology and any others representing clinicians involved in such procedures;
(c) Managers of current speciality device registries;
(d) the Medicines and Healthcare products Regulatory Agency;
(e) the Directors of each of the four UK based National Health Services;
(f) healthcare quality improvement bodies from each of the four UK based National Health Services;
(g) representatives of the Healthcare device manufacturing sector;
(h) academics with expertise in the design and maintenance of registries;
(i) additional stakeholders as identified during the development and maintenance of such a registry.
(8) Patient information from such a registry shall be provided to clinicians if there is concern regarding the management of or complications from any implanted device to allow closer monitoring or removal if so warranted.”
The aim of such a UK register is to ensure earlier recognition of complications from implantable devices and allow the easy identification and urgent recall of affected patients should such a concern be recognised.
Brought up, and read the First time.
Alex Norris
I beg to move, That the clause be read a Second time.
I am pleased to give this clause a run-out on behalf of the hon. Member for Central Ayrshire. We have missed her during these proceedings, and I hope that conversations are ongoing through the usual channels about how we can make Public Bill Committees work and perhaps give hon. Members who cannot be here—for very good reasons—a chance to contribute.
This is the final new clause, but it is by no means the least important. In fact, it has the most potential to be a clause with which we do something quite exciting. A great deal of pain has been caused in the past. I will not get ahead of the Cumberlege review, but when things go wrong in the space of medical devices, they go wrong catastrophically and in a life-altering fashion. None of us would want to see that; all of us would want to do anything we can to avoid or mitigate that harm.
The new clause would establish an exciting regime of registration of medical devices. It would provide information on a granular level—we have seen the level of detail that the hon. Member for Central Ayrshire has put into it—so that we know exactly what medical device has gone where and for what purpose. This is a complex area. We talked on Monday about the various different registries or registrations we could have, and all are complex and require reflection. This would be a good part of marking the Government’s card. Since Monday, we have had very good informal conversations about how we can take this forward.
Jo Churchill
As the hon. Gentleman knows, I am also enthused and excited about the register, because it offers us a space to do something good. I am very grateful to him and the hon. Member for Central Ayrshire, to whom I spoke at the weekend, as I said on Monday, and I noted that she would not be with us for Committee proceedings.
A registry of long-term implantable medical devices as suggested in new clause 6 is of significant interest to many Members. On Second Reading, many Members put forward good ideas on how we could make a register work for the benefit of patients. We should consider this in the context of the forthcoming report from the independent medicines and medical devices safety review and the matters it looked into, particularly the use of pelvic mesh, and how we oversee medical devices, including post-market surveillance. It is not only the point when the device is implanted that is vital, but also the potential impacts some years later. I know we all recognise the critical importance of ensuring that patients are heard and that concerns about medical devices are identified and dealt with quickly and effectively. That must be at the forefront of our minds. As the hon. Gentleman said, the impact on an individual’s life can be significant.
New clause 6 is similar to new clause 1, which was tabled in the name of my hon. Friend the Member for Newton Abbot (Anne Marie Morris). I know that she and many other Members in the House and the other place are interested in what more we could do to improve the tracking of implantable medical devices. The issue has also been a subject of interest to the Health Quality Improvement Partnership and the Royal College of Surgeons. It is very topical.
Clause 13(1)(h) provides for the creation of a register of medical devices to capture which devices are available on the UK market and to ensure that the MHRA can identify which device has been produced by which manufacturer. There has been some confusion in some of the written evidence as to whether that is intended to constitute a registry. A registry as in new clause 6 suggests bringing together patient and clinical information with device information. We have device registries, such as the national joint registry in the UK, which is seen as a global exemplar, so it is important to make sure that we do what we need to in order to enhance what is already in the system.
I understand the intent behind the new clause and, as ever, I am keen to understand what more we can do to protect patients in a fast-moving and constantly innovating environment, but I am not sure that new clause 6 is practical. The hon. Member for Central Ayrshire and I discussed the fact that it was heading in the right direction, but we need to work on it.
Patient safety absolutely underpins everything in our approach to regulation of medical devices in the Bill. It is the key consideration for all of us, as set out in clause 12(2)—the Government have put it there as the key priority. That is why we have introduced the ability for the Secretary of State to disclose information in the event of a safety concern, as we discussed.
I am not sure that the new clause achieves what the hon. Members for Central Ayrshire and for Nottingham North want it to. The intent is to establish a UK registry linking together all existing device registries, so that duplication of the entry of information is reduced, and to require the information entered to include the specifics of a device, such as the clinician who implanted it—information that, in the event of something going wrong, would give a clear picture of what happened. Although that is a commendable aim, the existing registries have been established over time and have expanded into different regions, evolving as they go. We have not had conversations on linkages to the registers in various parts of the country and in devolved Administrations. It is right and proper that we pull back and ensure that we have taken in the views of all stakeholders, and done the proper engagement to ensure that we collect the information from registers appropriately. That needs some work, partly due to the differing operating approaches in each registry. I gently suggest that the proposal in subsection (6) that all implanted devices without a specialist registry be logged on a national registry is a little broad at this stage. We perhaps need to talk about that with stakeholders and others.
The new clause also seeks to establish a governance structure, after consultation with a range of stakeholders, on the management of and access to the proposed registry. I suggest that the consultation requirement is out of step with the consultation duty in clause 40, which provides that consultation with those considered appropriate must take place before we make the regulations. It is a little cart before the horse but, that notwithstanding, this is very much the direction of travel. I remain of the view—no doubt we will come to this point—that we must ensure that we do not inadvertently rule out consulting those who ought to be consulted.
The hon. Member for Nottingham North and I have had discussions in this space, and we are united in wanting this idea to get to the right place. I appreciate the careful consideration that was given to the new clause, and I am grateful for it. I would welcome further discussions in the near future.
Matt Western
I am keen to clarify, not having been party to previous debate, what happens with non-medical cosmetic devices implanted by a medical procedure. Should registry for them be part of this consideration? There is a subsequent impact on our NHS when things go wrong.
Jo Churchill
I thank the hon. Member for his intervention. We are not talking about cosmetic devices here, but I very much take his point. If it involves implantation, it is worth talking about, in the round, during consultation; however, many of the cosmetic issues he refers to may be temporary—if, for example, a device is inserted and then taken away. The legislation is about implanted devices. Again, it is something that we would talk about and ensure that we had consulted on, but for the purposes of the Bill, we are specifically looking at medical devices, and the definition of them.
As I said, I welcome discussion with those interested in these matters, particularly as we look forward to Baroness Cumberlege’s review, which is coming very shortly. On that basis, I ask the hon. Members for Central Ayrshire and for Nottingham North to withdraw the motion, but I will commit to following up with arrangements to have those discussions in a timely fashion.
Alex Norris
We are in vicious agreement on this point. The new clause provides a possible destination, but through conversations and the expertise of colleagues, we may end up going in a similar but different direction. It is right that we start with the goal in mind and then work to where we get to. I think there is real potential in this area. As the Minister said, my hon. Friend the Member for Warwick and Leamington made a very important point, because the principles are very similar. There may be scope to include the areas that he mentioned also.
I thank the Clerks and you, Chair, for your support in this process. We have had some very good discussions, and laid the groundwork to do even more. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Question proposed, That the Chair do report the Bill, as amended, to the House.
The Chair
Before I put the final question, I thank all Members, particularly the Minister and the shadow Minister, for the way they have conducted themselves throughout the proceedings, which have been a pleasure to chair. I also thank the two Clerks and the Hansard reporters for their hard work.
Question put and agreed to.
Bill, as amended, accordingly to be reported.