Domestic Abuse Bill (Sixth sitting)
Wednesday 10th June 2020
(4 years, 5 months ago)
Public Bill CommitteesDomestic 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.)