Wednesday 17th June 2020
(4 years, 6 months ago)
Public Bill CommitteesDomestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 17 June 2020 - (17 Jun 2020)
The Chair
I remind the Committee that with this we are discussing the following:
New clause 35—Victims of domestic abuse: leave to remain—
“(1) The Secretary of State must, within 3 months of this Act being passed, lay a statement of changes in rules made under section 3(2) of the Immigration Act 1971 (“the immigration rules”) to make provision for leave to remain to be granted to any person subject to immigration control who is a victim of domestic abuse in the United Kingdom.
(2) The statement laid under subsection (1) must set out rules for the granting of indefinite leave to remain to any person subject to immigration control who is a victim of domestic abuse in the United Kingdom; and the statement must provide for those rules to be commenced no later than one month of the laying of the statement.
(3) The Secretary of State must make provision for granting limited leave to remain for a period of no less than 6 months to any person eligible to make an application under the immigration rules for the purposes of subsection (2); and such leave shall include no condition under section 3(1)(c)(i), (ia), (ii) or (v) of the Immigration Act 1971.
(4) The Secretary of State must make provision for extending limited leave to remain granted in accordance with subsection (3) to ensure that leave continues throughout the period during which an application made under the immigration rules for the purposes of subsection (2) remains pending.
(5) Where subsection (6) applies, notwithstanding any statutory or other provision, no services shall be withheld from a victim of domestic abuse solely by reason of that person not having leave to remain or having leave to remain subject to a condition under section 3(1)(c) of the Immigration Act 1971.
(6) This subsection applies where a provider of services is satisfied that the victim of domestic abuse is eligible to make an application to which subsection (3) refers.
(7) The Secretary of State must, for the purposes of subsection (5), issue guidance to providers of services about the assessment of eligibility to make an application to which subsection (3) refers.
(8) In this section an application is pending during the period—
(a) beginning when it is made,
(b) ending when it is finally decided, withdrawn or abandoned, and an application is not finally decided while an application for review or appeal could be made within the period permitted for either or while any such review or appeal remains pending (meaning that review or appeal has not been finally decided, withdrawn or abandoned);
“person subject to immigration control” means a person in the United Kingdom who does not have the right of abode;
“provider of services” includes both public and private bodies;
“services” includes accommodation, education, employment, financial assistance, healthcare and any service provided exclusively or particularly to survivors of domestic abuse.”
This new clause would make provision in the immigration rules for the granting of indefinite leave to remain to migrant survivors of domestic abuse and limited leave to remain to a survivor who is eligible to make an application for indefinite leave to remain.
New clause 36—Recourse to public funds for domestic abuse survivors—
“(1) The Immigration Acts are amended as follows.
(2) In section 115 of the Immigration and Asylum Act 1999 after subsection (10) insert—
“(11) This section does not apply to a person who is a victim of domestic abuse in the United Kingdom.”
(3) In paragraph 2(1) of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 after sub-paragraph (b) insert—
“(ca) to a person who is a victim of domestic abuse in the United Kingdom, or”
(4) In section 21 of the Immigration Act 2014 at the end of subsection (3) insert “or if P is a victim of domestic abuse”.
(5) In section 3 of the Immigration Act 1971 after subsection (1) insert—
“(1A) The Secretary of State may not make or maintain a condition under subsection (1)(c)(ii) on leave granted to a victim of domestic abuse in the United Kingdom; and it is not a breach of the immigration laws or rules for such a victim to have recourse to public funds.”
(6) For the purposes of this section, evidence that domestic abuse has occurred may consist of one or more of the following—
(a) a relevant conviction, police caution or protection notice;
(b) a relevant court order (including without notice, ex parte, interim or final orders), including a non-molestation undertaking or order, occupation order, domestic abuse protection order, forced marriage protection order or other protective injunction;
(c) evidence of relevant criminal proceedings for an offence concerning domestic violence or a police report confirming attendance at an incident resulting from domestic abuse;
(d) evidence that a victim has been referred to a multi-agency risk assessment conference;
(e) a finding of fact in the family courts of domestic abuse;
(f) a medical report from a doctor at a UK hospital confirming injuries or a condition consistent with being a victim of domestic abuse;
(g) a letter from a General Medical Council registered general practitioner confirming that he or she is satisfied on the basis of an examination that a person had injuries or a condition consistent with those of a victim of domestic abuse;
(h) an undertaking given to a court by the alleged perpetrator of domestic abuse that he or she will not approach the applicant who is the victim of the abuse;
(i) a letter from a social services department confirming its involvement in providing services to a person in respect of allegations of domestic abuse;
(j) a letter of support or a report from a domestic abuse support organisation; or
(k) other evidence of domestic abuse, including from a counsellor, midwife, school, witness or the victim.
(7) For the purposes of this section—
“domestic abuse” has the same meaning as in section 1 of the Domestic Abuse Act 2020;
“victim” includes the dependent child of a person who is a victim of domestic abuse.”
This new clause seeks to ensure that certain provisions under the Immigration Acts – including exclusion from public funds, certain types of support and assistance and the right to rent – do not apply to survivors of domestic abuse.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
Before we adjourned for lunch, I was speaking about county lines gangs, to demonstrate how vulnerable people can continue to be manipulated and exploited for the aims and advantages of those who are doing the manipulation. When we talk about county lines gangs, most people think of boys and young men being recruited, but we are now getting stories about girls being recruited—not necessarily to do the drug running, although they can be used by the perpetrators to conceal weapons and drugs, but to launder the proceeds of crime.
The perpetrators, the gang leaders, are very deliberately recruiting young women because they want to use their bank accounts, and they do so on the basis that because someone is a girl or young woman, the authorities will not trace her, track her or be on the lookout for her as much as they would be—they say—for young men. They also tell the girls, as part of their manipulation, that even if they do get caught, the consequences, because they are girls, will not be so bad for them.
I say that because in the context of the argument about manipulation and how perpetrators can use and skew systems to their advantage, I am highly cynical when it comes to the ability of perpetrators to do that. That is one reason why, when we talk about how careful we have to be about how the system is constructed, so that it cannot be misused, I do so very much with those cynical perpetrators in mind.
I will return to the fundamental principle of providing support, on which we all agree. It is why, as part of our journey to discovering the scale and extent of the problem but also the most effective ways of helping migrant women or people with no recourse to public funds, we have allocated £1.5 million to a pilot project to support migrant victims to find safe accommodation and services. In addition to offering emergency support, the pilot will be designed to assess the gaps in existing provision and gather robust data that will help to inform future funding decisions. The review that we have been carrying out and are due to publish, or aim to publish, by Report stage, has highlighted that there are significant gaps in the evidence base for migrant victims who are not eligible for the destitution domestic violence concession.
Since 2017, we have provided more than £1 million from the tampon tax fund to support migrant victims with no recourse to public funds. That has helped to deliver much-needed support for a number of individuals, but regrettably the funding has not provided the necessary evidence base to enable us to take long-term decisions. The evidence is at best patchy as to the kinds of circumstance in which support is most needed, how long victims need support, what kind of support works best and how individuals can leave support to regain their independence. That demonstrates a need for further work to ensure that we have a strong evidence base from which we can make sound decisions, and that is what the pilot fund is for.
Peter Kyle (Hove) (Lab)
May I ask the Minister to clarify her comments? Some people could interpret them to mean that the evidence not being there is a reason not to provide any service for some people, whereas some service might be provided for some people by the pilot. Can the Minister clarify that the Government will look at how they can give as much provision for as many people as possible until we are able to get the evidence to better target it going forward?
Victoria Atkins
I very much appreciate the way in which the hon. Gentleman raised that. We have systems in place at the moment. I hope that, particularly on the topic of legal aid, I have been able to provide examples of women who were not eligible for DDVC getting access to legal aid support. We accept that there is more to do. We are coming at the matter with an open mind and an open heart. We want to get the evidence, so that in due course we can put in place the systems that will provide the best support. That, as well as helping people in their immediate circumstances, is the intention behind the pilot project.
I turn now to the matter of immigration control. We believe that lifting immigration controls for all migrant victims of domestic abuse is the wrong response. Successive Governments have taken the view that access to publicly funded benefits and services should normally reflect the strength of a migrant’s connections to the UK and, in the main, become available to migrants only when they have settled here. Those restrictions are an important plank of immigration policy, operated, as I have said, by successive Governments and applicable to all migrants until they qualify for indefinite leave to remain. The policy is designed to assure the public that controlled immigration brings real benefits to the UK and does not lead to excessive demands on the UK’s finite resources, and that public funds are protected for permanent residents of the UK.
Exceptions to those restrictions are already in place for some groups of migrants, such as refugees or those here on the basis of their human rights, where they would otherwise be destitute. Those on human rights routes can also apply to have their no recourse to public funds condition lifted if their financial circumstances change. Equally, migrant victims on partner visas can already apply for the destitution domestic violence concession, to be granted limited leave with recourse to public funds.
However, lifting restrictions for all migrant victims would enable any migrant, including those here illegally, to secure leave to remain if they claim to be a victim of domestic abuse. For the reasons I have set out, we believe that the provisions in new clause 35 would be open to abuse and undermine the legitimate claims of other migrant victims and the public support on which our immigration system relies.
Jess Phillips (Birmingham, Yardley) (Lab)
Will the Minister outline exactly why she thinks the new clause would give everyone indefinite leave to remain? That is certainly not the case, if I may speak so boldly. We are asking for limited leave to remain for a six-month period, with a view to making an application for indefinite leave to remain. Will the Minister just highlight that the Home Office, even in the case of spousal visas, still has every right to refuse indefinite leave to remain to anyone it likes?
Victoria Atkins
I am grateful to the hon. Lady for clarifying. I am afraid that that is not the interpretation that lots and lots of officials who have pored over the new clauses have drawn. Perhaps that highlights the complexity of the area and the law. We have to be absolutely clear about our phrasing and intentions when we draft clauses that will have a huge impact on immigration policy, over and above the cases of the immediate victims whom we seek to help.
Jess Phillips
Does the current system of domestic violence destitution and the DV rule guarantee indefinite leave to remain for those on spousal visas? If it were extended to other groups, surely they would live under the same rules.
Victoria Atkins
I do not want to labour the point, but the purpose and remit of the DDVC and the domestic violence rule has been misunderstood. The DDVC and the rule were, and are, intended to provide a route to settlement for migrant victims who hold spousal visas, because they have a legitimate expectation of staying in the UK permanently. That is the nature of their status. That is why we say it is not, sadly, an easy transfer across for people on other types of visas, such as visitor visas—or, indeed, for people who have arrived here illegally. That is why it is a painstaking process to work out what we can do to help such victims with the immediate circumstances of their abuse, so that the immigration system plays its part and takes its course in the way that it would do for anyone on those different types of visas.
I appreciate the sensitivities of talking about illegal immigrants, but it is important to acknowledge that we have to balance the interests of people who apply properly for immigration routes, as well as the immigration interests of individual victims. That is why the Government keep coming back to the argument that the starting point for the process should not be people’s immigration status; it should be the care that they need to help them flee an abusive relationship, giving them the support they need to recover from that and to lead happier and healthier lives.
I talked about the human rights routes. People on human rights routes can also apply to have their no recourse to public funds condition lifted if their financial circumstances change. Equally, migrant victims on partner visas can already apply for the DDVC to be granted limitedly, with recourse to public funds. We are committed to the needs of victims, which is why we have introduced the pilot to help us understand the particular pressures and needs of these vulnerable people.
I started my speech by setting out the Government’s commitment to helping victims. I made the point that victims must be treated as victims and get the help they need. That is absolutely what we are focused on, which is why the next steps in our programme of work in this very difficult area are to publish the results of the review and then conduct the pilot, so that we can assess and implement the practical support that these vulnerable people need.
Jess Phillips
Let me explain to somebody who may never have filled in a domestic violence destitution fund form or have had to apply the DV rule in this or any of its forms. The reality is that even if someone has a spousal visa, it does not guarantee them indefinite leave to remain. They still have to apply through every single one of the same rules through which they would ordinarily apply—unless the Home Office is changing the policy and saying that anyone who applies will automatically be given leave to remain. That is absolutely not my experience.
There is a problem when I stand here representing my experience of years in the field, and with masses of experience of immigration cases in my constituency—more, I feel safe in saying, than any hon. Member present, except perhaps the hon. Member for Cities of London and Westminster. It is very difficult when Ministers say that what I have experienced is not the case, or that all the victims who have given evidence—some of whom are our friends or family, and certainly our constituents—are wrong to say that the system does not work. There are lists of easements, but the reality on the ground is completely different. I understand what the Minister is saying and certainly what hon. Members want to see with regard to evidence gathering. Lord knows we live in a time when policy is made very quickly, and some people will prove that we needed better evidence for some of it. We live in interesting times. I have absolutely no doubt that that is what is required.
I do not see the point of a review if the evidence is not taken up by the Home Office. Even if all the evidence pointed the other way, I cannot see that the Home Office would come up with a different argument. The desire of all of us for the evidence is a sort of moot point. We are trying in this Bill to protect victims of domestic violence—it’s literally what it says on the tin.
Jess Phillips
I think it is. I do not get any uptick in sticking up for this group of people because migrant communities are not allowed to vote. People have seen a problem and they are trying to fix it. It is as simple as that. On the issue of leave to remain, I hear what—
Victoria Atkins
I rise to protect my officials more than anything else. New clause 35(2) states:
“The statement laid under subsection (1) must set out rules for the granting of indefinite leave to remain to any person subject to immigration control who is a victim of domestic abuse in the United Kingdom”.
That is the hon. Lady’s new clause, and that is how we have read it.
Jess Phillips
Okay. That is absolutely fine. I was about to say to the Minister that I hear what she says about the concern that we might let a few too many in the country. I will take the issue up on Third Reading and speak about it every day until we get to Report and I will ensure that people speak about it in the Lords.
The Minister has probably never taken a call in a refuge and had to tell someone that they could not come because they had no recourse. She can say that I speak with my heart and not my head, but I have had to use my head to turn women away. I have had to have women’s children removed from them.
I do not act as an emotional being; I am emotional about the right thing to do. We are here to protect victims of domestic violence. We do not expect to ask them which countries they have travelled from when they present. I will take away what the Minister says about possible confusion. The amendments that will be laid before the House will be clear that, just as for those on spousal visas, there is no guarantee whatever of indefinite leave to remain, as the Minister well knows, in the scheme.
In fact, not everybody gets indefinite leave to remain. The data collected centrally is widely available. All we ask is that for a period everybody will be able to access support and be given a fair chance to make an immigration application. It is as simple as that. I do not want to stand here and let it pass. The point still stands whether we want to call them illegal or whether we want to talk about which particular visa they might have. If anyone does not have asylum accommodation in their constituency, they are free to come to mine to see whether they would like to put victims of domestic violence in it. It’s really cracking.
There will be people exactly as I have outlined. It does not matter what sort of visa they are on. As I have said, there will be people who we come across every day to whom we are currently saying, “This Bill isn’t for you. This Bill doesn’t help you; I am sorry you got beaten up, but you are on your own.” That is the reality of this law, until it is changed. I will do everything I can to change it and I have a better chance of doing that in front of the whole House—either this one or the other place. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 30
Use of bail in domestic abuse cases
“(1) Section 34 of the Police and Criminal Evidence Act 1984 (limitations on police detention) is amended as follows.
(2) In subsection (5)(a) for the word “applies” substitute “or subsection (5AB) applies”.
(3) In subsection (5)(b) for the word “applies” substitute “or subsection (5AB) applies”.
(4) In subsection (5A) insert after the words “applies if”, “subsection (5AB) does not apply and”.
(5) After subsection (5A) insert—
“(a) This subsection applies if—
(i) it appears to the custody officer that there is need for further investigation of any matter in connection with which the person was detained at any time during the period of the person‘s detention; and
(ii) the offence under investigation is an offence that amounts to domestic abuse as defined in section 1 of the Domestic Abuse Act 2020;
(b) save that the person shall be released without bail if the custody officer is satisfied that releasing the person on bail is not necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which would be imposed and to the importance of protecting the complainant);
(c) before making a determination to release without bail or a determination as to any conditions of bail to impose, the custody officer shall conduct an assessment of the risks posed by not releasing the person on bail (including, in particular, to the complainant);
(d) before making a determination of a kind referred to in paragraph (c) the custody officer must inform—
(i) the person or the person’s legal representative and consider any representations made by the person or the person‘s legal representative; and
(ii) the complainant or the complainant’s representative and consider any representations made by the complainant or the complainant’s representative; and
(e) an officer of the rank of inspector or above must authorise the release on bail (having considered any representations made by the person or the person’s legal representative and by the complainant or the complainant’s representative).””.—(Peter Kyle.)
This new clause reverses the presumption against use of bail in the 2017 Act for these categories of offences, and introduces a risk assessment with prior consultation with the parties.
Brought up, and read the First time.
Peter Kyle
Good afternoon, Mr Bone. These two new clauses concern how bail is used in domestic abuse cases as a result of the changes to the bail regime as enacted in the Policing and Crime Act 2017.
As reported in the Joint Committee on the Draft Domestic Abuse Bill, the Policing and Crime Act 2017 restricted the length of pre-charge bail to 28 days in most circumstances and mandated that extensions could be authorised by police officers, but only if the officer authorising the extension had reasonable grounds for believing the investigation was being made “diligently and expeditiously.” That was a legislative response to cases such as that of broadcaster Paul Gambaccini who was repeatedly released on bail for more than a year while being investigated, but then subsequently cleared of all charges and not charged with anything at all.
We can contrast the scrutiny that that Bill received with that on this Bill, as it was reported to the Joint Committee that
“the consultation prior to the 2017 bail reforms did not hear from any women’s organisations, or victims’ groups, and that only policing bodies, organisations representing suspects and defence lawyers participated.”
Though well-meaning and made in response to a legitimate cause where pre-charge bail had been misused, the changes have had a devastating impact on victims of domestic abuse, as the police have drastically reduced the use of bail for perpetrators accused of rape and domestic violence, which has put survivors at an increased risk, as the alleged offender is being released without any conditions. That point was reinforced in the Joint Committee by Deputy Chief Constable Louisa Rolfe of the National Police Chiefs’ Council, who agreed that,
“the reduction in pre-charge bail in domestic abuse cases had been significant”
and, more worryingly, told the Committee,
“that it could be difficult to convince a judge of the need for bail when a case progressed to court or if he or she had not been on police bail.”
A 28-day initial grant of bail is simply not enough time for an already stretched police force to gather the plethora of evidence needed in most domestic abuse cases. In evidence to the Joint Committee, Deb Smith of the Police Superintendents Association said:
“To get a charge on a domestic abuse case, there clearly has to be a significant amount of evidence gathered. That is almost always going to be nigh-on impossible in the first 28 days, even if somebody is released on bail. Then obviously we go to the superintendent’s extension for the three months, and even that is a challenging timeframe in which to get all the evidence required to satisfy a charge—third-party material, mobile phone records and so on.”
Once again, I find myself quoting the safeguarding Minister, because she herself admitted that, in the case of pre-charge bail:
“It is almost as though the pendulum has swung the other way, and we need to get it back in the middle by ensuring that for cases where it is appropriate to go beyond 28 days, people are being released on pre-charge bail with conditions as necessary and proportionate.”
It is encouraging that the Government have admitted faults with the current regime and I acknowledge that change has been promised, with a preliminary consultation on proposals for reviewing pre-charge bail legislation having just closed on 29 May. However, considering the opportunity offered by the Domestic Abuse Bill—it is right here before us and we know what the problem is—I do not think survivors and people at risk should have to wait for a possible police protection and powers Bill for the changes to appear.
I hear the Government’s argument that there are risks associated with making piecemeal changes to the Police and Criminal Evidence Act 1984 through the Domestic Abuse Bill. However, the way in which the changes in the 2017 Act have affected domestic abuse victims must be restated. The Government’s own figures show that in the first three months of the new law, use of bail conditions in domestic abuse cases dropped by a staggering 65%.
New clause 30 would reverse the general presumption against bail and require a risk assessment by officers in cases where there are allegations of domestic abuse on the impact of imposing or not imposing bail. It strongly mirrors the Home Office’s proposals on pre-charge bail and would therefore not conflict with the eventual legislative outcome of the wider Home Office review.
New clause 31 is a simple amendment that would extend the initial bail period in domestic abuse cases from 28 days to three months. We know from the police’s testimony to the Joint Committee that the 28-day limit is particularly problematic in domestic abuse cases. Increasing it to three months would reduce the burden of bureaucracy created by bail extensions in domestic abuse cases and make bail a more workable tool for the police. It would avoid the situation that currently arises, where bail is lifted after 28 days and victims find it difficult to obtain a non-molestation order without a recent incident, leaving them without any protection at all. Three months on bail is very different from the indefinite bail that existed before the 2017 Act, so the new clause would address the legitimate concerns that led to that legislation being enacted.
I urge Ministers to consider both new clauses in the context of the immediate relief they could offer domestic abuse survivors. It is reassuring that the Minister committed to the inclusion of victims of domestic abuse in the statutory guidance, but I urge Members to take advantage of the opportunity we have before us. We know that we are heading into a period when both Houses of Parliament will be gridlocked with legislation. Despite the potential extension of the parliamentary terms and revocation of recesses, we are heading into a period when the House will be jam-packed with legislation. As we head towards 31 December and our leaving the European single market and customs union, it is certain that next year will be an even heavier legislative period than this one. We have a Bill in front of us, we know what the problem is and there is a simple solution—please, Minister, do not make us wait.
Victoria Atkins
I say at the outset that I have sympathy with the hon. Gentleman’s position. We are conscious of the unintended consequence of the well-intentioned reforms to pre-charge bail in 2017. We are committed to ensuring that the police have the powers they need to protect the public, and that our criminal justice system has at its heart the welfare and best interests of victims.
Over the past few years, crime has become more complex, and the police are dealing with more digital evidence and new challenges. The Policing and Crime Act 2017 introduced a number of reforms to pre-charge bail to address legitimate concerns that suspects were spending too long under restrictive conditions, with no oversight. Indeed, the hon. Gentleman gave an example of that. The 2017 reforms allowed individuals to be released under investigation and introduced a presumption in favour of release without bail, unless its use was considered necessary and proportionate. They limited the initial imposition of pre-charge bail to 28 days. I must emphasise that the police can still use pre-charge bail when it is necessary and proportionate to do so, and they have our full support in that.
The National Police Chiefs’ Council has issued guidance highlighting that police should use pre-charge bail when there are risks to victims and witnesses, and the need to regularly review cases where such suspects are released under investigation.
Jess Phillips
On risk, the new clause seeks to amend the Bill to ensure that a proper risk assessment is done. Somebody in a case involving me was recently released under investigation, and no risk assessment of my safety was done.
Victoria Atkins
Obviously, I am concerned to hear that. I take the point about risk assessment and will raise it with the NPCC lead. The hon. Member for Hove referred to the forthcoming police powers and protections Bill, but in the interim I very much want that to be considered.
We have worked closely with policing partners and other partners across the criminal justice system to track its implementation and monitor its impact, and we know that the use of pre-charge bail has fallen significantly. We have listened carefully to these concerns, and in November, as the hon. Gentleman said, we announced a review of pre-charge bail to address concerns raised about the impact of current rules on the police, victims, those under investigation and the broader criminal justice system. We launched a public consultation in February, which closed on 29 May. We received more than 1,000 responses, which we are analysing before deciding how best to proceed.
However, I very much take the point about the needs before the police powers and protections Bill is introduced, but our concern is that we cannot deal with this in a piecemeal, offence-specific manner; we have to take a holistic approach to changing the pre-charge bail system. This Bill is not the correct vehicle for that but, as the hon. Gentleman said, the police powers and protections Bill announced in the Queen’s Speech may well be.
Peter Kyle
I need to put something on the record. It is always ideal to look at these matters in the round, in the holistic way that the Minister mentions. However, when we see an attack in public, outside, suddenly the Government find the ability to review things, such as early release programmes, and to introduce very specific pieces of piecemeal legislation, if I may describe them in those terms. The Bill is before us. We cannot wait any longer. We believe that every life matters, and we think the fact that victims out there feel threatened by this should be power enough to force a specific change here until we get that holistic report and legislation that she seeks.
Victoria Atkins
I think the hon. Gentleman is referring to the new powers in relation to terrorism offences, if I have understood correctly. That is a discrete part of the criminal justice system. Pre-charge bail has the potential to apply to pretty much every criminal offence, with the exception of the murder; it would clearly be very unusual for anyone facing a murder charge to be released on bail. Again, we have to look at the system in a holistic way, which is what we are planning. However, I will raise the point about risk with the NPCC so that in the intervening months, while the Bill is still going through Parliament—let us not forget that that does not finish when we finish here tonight; the Bill has some scrutiny ahead of it—we get the message through to the police chiefs, in addition to what we have already said, that this matter is of particular concern to the Committee.
Julie Marson (Hertford and Stortford) (Con)
At the risk of sounding like a one-trick pony, I want to talk about some of my experience in court, touching on some things that we have just been speaking about, or that will be referred to later when the hon. Member for Hove speaks again about court.
My experience is that magistrates consistently deal with difficult cases. It is difficult to balance the rights of a victim and the rights of a defendant. I have not talked much about defendants, but it is true that we see a lot of defendants who have terrible stories to tell. In my maiden speech, I said that being a magistrate had changed my perspective on the world, because I had never seen the kinds of lives that were coming up in front of me, and not just of the victims but of the defendants.
I told the story of a boy who walked in on my first day, when I was still being mentored. He was 18 and it was his first appearance in an adult court. He looked about 10—he was tiny—and he was grey. I said to my mentor, “God, he can’t be in this court, surely,” and they said, “No, I know him from the family courts.” He was malnourished because his parents were drug addicts and he was never fed properly. He was grey because he was malnourished and he had been injected with heroin to keep him quiet as a child. But he had burgled an elderly couple’s house. There are lots of victims in a courtroom and it almost does not matter where they are sitting. It is a constant battle as a magistrate to weigh up the rights of the defendant and the rights of the victim.
That touches on bail, which is an unpopular thing to talk about in court, because in some ways everyone is a threat and everyone can go on to do nasty things to nice people, but magistrates have to weigh up the right of habeas corpus—the right of a defendant to have liberty until he has been convicted of a crime. That is really difficult to weigh up, because it involves thinking about the risks to the victim, the defendant’s right to liberty and the presumption of innocence.
That is why the holistic approach that the Minister is talking about is important, because it will touch on not just domestic abuse cases, but the precedents and the impact that has on the court system and the rights of defendants in the court system. The hon. Member for Hove mentioned the pendulum, which it is important to get right. I think the more holistic approach is genuinely the right way to go on that.
Victoria Atkins
I apologise to the Committee; I am stepping into the shoes of the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham, as he is about to appear on the Floor of the House, so please spare me particularly detailed questions and I will do my best.
We absolutely recognise the life-saving sanctuary that refuges provide for victims and their children, and we believe that existing legislation and court procedure rules state clearly that parties actively engaged in family proceedings are not required to disclose their address or that of their children, unless directed to do so by the court. Furthermore, parties may apply in any event to withhold such information from other parties.
When adequate information about the location of a child is not known to the court, the court can order any person who may have relevant information to disclose it to the court. In the first instance, details of the child’s address and who they are living with are disclosed only to the court and not to other parties. The court determines how this information should be used, based on the case details. Where there are allegations of domestic abuse, the court can and does treat this information as confidential, and holds it. We therefore believe that subsection (2) of the new clause is not required.
Subsection (1) would prevent the service of a court order at a refuge’s residential address, other than with the permission of the court following an application made under subsections (3) and (4). I fully appreciate that victims living in a refuge are fearful for their safety, and that their experiencing or witnessing the service of an order at a refuge would be very distressing. However, where courts are concerned about the welfare of a child, they must be able to take rapid and direct action to locate them. Direct service of an order at a refuge’s residential address may sometimes be necessary, for example when urgent concern about a child’s welfare demands it. Therefore, provisions to limit how documents may be served in specific places could have the unintended consequence of endangering a child.
I would like to reassure hon. Members that the courts may already direct completely bespoke service arrangements, based on the facts of a case. The family procedure rules 2010 provide clear powers for the courts to order service at alternative places, such as at an address other than a refuge’s residential address, and set out the procedure for making such applications.
In summary, we believe that the important outcomes sought by the hon. Member for Birmingham, Yardley are already provided for in existing legislation and court rules. However, I want to reassure the Committee that we are committed to protecting vulnerable victims of domestic abuse who live in refuges. Indeed, my hon. Friend the Member for Cheltenham met the deputy president of the family court on Monday and raised these concerns, among others, and we will work with the deputy president to explore whether amendments to the family procedure rules 2010 could strengthen safeguards for victims and their children who live in refuges. On that basis, I ask the hon. Lady to withdraw the new clause.
Jess Phillips
I will withdraw the new clause, and I am heartened by the fact that the hon. Member for Cheltenham, who is no longer in his place, has spoken to the divisional lead in the family court. This is one of those situations where there may very well be regulations in place to allow the outcomes we want, but something is still going wrong, and an assessment and a change in this area is needed.
I understand the deep concerns that the Under-Secretary of State for the Home Department, the hon. Member for Louth and Horncastle, has needing to think through the potential for harm to come to a child, although I would argue that, in refuge services, there would be somebody there in the vast majority of cases. There are quite strict and stringent safeguarding measures in place in refuges to ensure that children come to no harm. However, I am pleased to hear what she said and will speak to the other Minister about it another time, when he is not debating the Divorce, Dissolution and Separation Bill. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 33
Reasonable force in domestic abuse cases
‘(1) Section 76 of the Criminal Justice and Immigration Act 2008 is amended as follows.
(2) In subsection 76(5A) after “In a householder case” insert “or a domestic abuse case”.
(3) In subsection 76(6) after “In a case other than a householder case” insert “or a domestic abuse case”.
(4) After subsection 76(8F) insert—
“(8G) For the purposes of this section “a domestic abuse case” is a case where—
(a) the defence concerned is the common law defence of self-defence;
(b) D is, or has been, a victim of domestic abuse;
(c) the force concerned is force used by D against the person who has perpetrated the abusive behaviour referred to at subsection (8G)(b);
(d) subsection (8G)(b) will only be established if the behaviour concerned is, or is part of, conduct which constitutes domestic abuse as defined in sections 1 and 2 of the Domestic Abuse Act 2020, including but not limited to conduct which constitutes the offence of controlling or coercive behaviour in an intimate or family relationship as defined in section 76 of the Serious Crime Act 2015.”
(5) In subsection 76(9) after “This section, except so far as making different provision for householder cases” insert “and domestic abuse cases”.’ —(Peter Kyle.)
This new clause seeks to clarify the degree of force which is reasonable under the common law of self-defence where the defendant is a survivor of domestic abuse.
Brought up, and read the First time.
Peter Kyle
I beg to move, That the clause be read a Second time.
The new clause seeks to provide domestic abuse survivors the same legal protection that householders have in cases of self-defence. Householders have a legal protection when they act in self-defence against an intruder, but no such protection is available to survivors acting in self-defence against their abuser. At its base, just think what that means: we are able in law to defend ourselves, to a defined threshold, against people who enter our homes and cause us harm, but we are unable to have the same defence against people who already live in the home and seek to cause the same harm. The new clause seeks to rectify that imbalance.
Common-law defences are outdated and ill fitting in the context of domestic abuse, leaving survivors with no effective defence. The Bill presents an opportunity to modernise the law by ensuring that the available legal defences reflect the improved public understanding of domestic abuse. This issue gained prominence with the case of Sally Challen last year, who had her murder charge for the hammer attack she inflicted on her husband downgraded to manslaughter in recognition of the effect of decades of coercive control that she had endured. That judgment reflects our new understanding of how domestic abuse can effect survivors and lead to offending behaviour, so it is only right that the Domestic Abuse Bill recognises this.
Evidence from the Prison Reform Trust shows that the common-law defence of self-defence is difficult to establish in cases of violent resistance by a survivor of domestic abuse against their abusive partner or former partner, as a jury may well conclude that the response was disproportionate without taking into account the long history of abuse. The self-defence proposal would make it easier for victims and survivors to establish that they were acting in self-defence, providing them with an equivalent protection to those using force against an intruder into their home. This is a really important distinction: all we are asking for is the same threshold to be allowed against people perpetrating violence from within the home as that allowed against people perpetrating violence who enter the home.
The definition is also now successfully established in statute. Section 76 of the Criminal Justice and Immigration Act 2008 is the basis for the new clause. Subsection (5A) allows householders to use disproportionate force when defending themselves against intruders into the home. It provides that, where the case involves a householder,
“the degree of force used by”
the householder
“is not to be regarded as having been reasonable in the circumstances as”
the householder
“believed them to be if it was grossly disproportionate”.
[Interruption.] I believe I am being heckled by Siri—I think I might have either turned someone’s lights on or off or ordered their shopping. A householder will therefore be able to use force that is disproportionate, but not grossly disproportionate. A CPS guideline states:
“The provision does not give householders free rein to use disproportionate force in every case they are confronted by an intruder. The new provision must be read in conjunction with the other elements of section 76 of the 2008 Act. The level of force used must still be reasonable in the circumstances as the householder believed them to be (section 76(3)).”
In deciding whether the force might be regarded as disproportionate or grossly disproportionate, the guideline states that the court
“will need to consider the individual facts of each case, including the personal circumstances of the householder and the threat (real or perceived) posed by the offender.”
The new clause would add the same provision and that same test of proportionality of force to cases of domestic abuse.
The Government have gone to great lengths to consider the different forms that domestic abuse can take, but there is not the same recognition of the criminal acts that can result from that abuse. We will go on to discuss the need for statutory defence further, but the new clause would go some way to addressing a difficulty survivors can have in court currently in self-defence cases.
The current Secretary of State was instrumental in providing the increased protection for householders when she was a Back Bencher. The coalition Government put forward their self-defence amendment for householders with the following comments by Lord McNally:
“All we are saying is that if householders act in fear for their safety or the safety of others and in the heat of the moment use force which is reasonable in the circumstances but seems disproportionate when viewed in the cold light of day, they should not be treated as criminals. Force which was completely over the top—grossly disproportionate, in other words— will still not be permitted.”—[Official Report, House of Lords, 10 December 2012; Vol. 741, c. 881.]
The new clause would see the Government apply the same sympathy and understanding to domestic abuse survivors that that Act provides in those situations.
Victoria Atkins
I am very pleased to reply in this debate. I understand that the new clause has been put forward by the Prison Reform Trust, and the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham, had the opportunity to speak in detail about this clause and other matters with representatives from the Prison Reform Trust, the designate domestic abuse commissioner, the Victims Commissioner and others a couple of weeks ago, so this has had his personal attention, as well as mine now.
The new clause aims to give a victim of domestic abuse the same level of protection as those acting in response to an intruder in their home. It has been suggested that that would address a current gap in the law and improve recognition of the links between victimisation and offending. It would, in effect, extend the provisions of section three of the Criminal Law Act 1967 so that a victim could be judged on the facts as he or she believed them to be.
We do, of course, recognise the harm suffered by victims of domestic abuse, and indeed there are several defences potentially available in law to those who commit offences in circumstances connected with their involvement in an abusive relationship. That includes the full defence of self-defence. In addition, the definition of domestic abuse in the Bill should assist with clarifying the wide-ranging and pernicious nature of domestic abuse and alerting all those involved in the criminal justice system to it. It does not seem to us that there is a gap in the law, nor does it seem to us that the situation of a householder reacting, perhaps instinctively, to an intruder in their home is directly comparable to the situation of a person who has been the victim of a pattern of violent and abusive behaviour, including behaviour that would constitute an offence under section 76 of the Serious Crime Act 2015.
The section 76 provisions in the 2008 Act largely cover a very specific circumstance where an intruder, who will in most cases be unknown to the defendant, puts the householder in a position where they are reacting on instinct or in circumstances that subject them to intense stress. By comparison, in domestic abuse cases the response may well not be sudden and instinctive, but one that follows years of physical and/or emotional and mental abuse, where the current law on self-defence and loss of control will allow that to be taken into account. Accordingly, it remains appropriate that the law on self-defence or loss of control be applied, rather than extend this provision to a wider set of circumstances.
Peter Kyle
This may well be probing the bounds of my knowledge of legal expertise, but am I right in saying that, should the protection be defined in law, the Crown Prosecution Service, prosecutors and law enforcement agencies would take that into account before getting to court? Putting this on the face of the Bill could well save survivors of abuse from the process of going to court in the first place.
Victoria Atkins
It is in law. It is good, settled law. The law of self-defence is very much in law. We, in this place, understandably concentrate on statute law, but case law and common law have power in influencing the criminal courts, alongside statutes.
As for the CPS taking account of it, it is obliged to apply the code for Crown prosecutors when considering whether to charge. It is a two-stage process. First, there is an evidential test of whether there is a reasonable likelihood of conviction and, secondly, there is a public interest test. Any prosecutor looking at that test properly who has been alerted to the defence of self-defence, either by way of interview, from conversations with defence solicitors or from police officers at the scene of the crime, should be aware of that. They are obliged to take those factors into consideration when making the decision about whether the evidential and the public interest tests are met. I hope that answers the hon. Gentleman’s concern.
We understand that it is said that there are difficulties with establishing the common law defence of self-defence in cases of reactive violence by a survivor of domestic abuse against their abusive partner or former partner. We understand the rationale of the new clause as being that a jury may well conclude that the response was disproportionate, without taking account of the long history of abuse. The joy of the jury system, as we have already discussed, is that each case is tried on the facts by 12 members of the public, who sit on a jury. I would be loth to try to replace their decision-making process and their responsibilities in statute.
We understand the concerns, but we believe that the existing defence is well settled in law and can help victims in the situations that the hon. Gentleman has described, so I invite him to withdraw this clause.
Peter Kyle
I will withdraw the motion because I believe that other people will want to interrogate this matter in greater detail at other stages of the Bill. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New clause 34
Proceedings under the Children Act 1989
“Proceedings under the Children Act 1989
‘(1) Part I of the Children Act 1989 is amended as follows.
(2) In section 1 (the welfare of the child) after subsection (2B) insert—
“(2C) Subsection (2A) shall not apply in relation to a parent where there has been domestic abuse which has affected the child or other parent.
(2D) Evidence of domestic abuse may be provided in one or more of the forms set out in regulation 33(2) of the Civil Legal Aid (Procedure) Regulations 2012.”
(3) Part II of the Children Act 1989 is amended as follows.
(4) In section 9 (restrictions on making section 8 orders) after subsection (7) insert—
“(8) No court shall make a section 8 order for a child to spend unsupervised time with or have unsupervised contact with a parent who is—
(a) awaiting trial, or on bail for, a domestic abuse offence, or
(b) involved in ongoing criminal proceedings for a domestic abuse offence.
(9) In subsection (8)—
“unsupervised” means where a court approved third party is not present at all times during contact with the parent to ensure the physical safety and emotional wellbeing of a child;
“domestic abuse offence” means an offence which the Crown Prosecution Service alleges to have involved domestic abuse.’”—(Peter Kyle.)
This new clause seeks to change the presumption that parental involvement furthers the child’s welfare when there has been domestic abuse. It also prohibits unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences, or where there are ongoing criminal proceedings for domestic abuse.
Brought up, and read the First time.
Jess Phillips
Definitely not, Mr Bone; I checked with all those involved in the case, and it is done—worry not. I have just been sending wild WhatsApp messages to that very effect. Also, I shall not mention anybody’s names or those of the courts.
The allegations were that the father had exposure his genitals to his daughter and that he had been sucking her toes and fingers while she was asleep. The judge said that if the father stopped doing this he could continue to have unsupervised contact with his daughter. The judge commented that when he was a barrister he had successfully ensured that a convicted paedophile could have unsupervised access to his children. The mother tried to tell the judge that the father has a history of domestic abuse, but the judge replied that she did not look like a victim of domestic abuse. He said that the father’s behaviour sounded more like a man losing his temper, rather than domestic violence. The judge dismissed the request for supervised contact between father and daughter.
In January 2020, allegations were made about the father’s sexual assault on his daughter. A criminal investigation into child sexual exploitation is ongoing but unsupervised contact is still ordered. This woman has no legal representation. She is not eligible for legal aid due to the means test. She has joint property ownership but no financial means to instruct a solicitor. Solace has described the severe impact this has had on the survivor: a complete distrust of the justice system—she felt like she was the one on trial even though she was there as the survivor and a mother trying to protect her daughter from her predatory father. She was met with disdain and not believed, whereas the father was met with sympathy.
I am almost certain that the Minister will refer to—the hon. Member for Cheltenham would have referred to it—practice direction 12J, which is meant to deal with this so that it does not happen in courts. It is routinely ignored in many cases. In this example, where presumption overrules even the child’s best interests, it is clear that there is a serious problem in our current system.
Victoria Atkins
The hon. Members for Hove and for Birmingham, Yardley have set out fully the legal frameworks that exist, and I will not repeat them. I will bring to the Committee’s attention the fact that the current legislation places absolute primacy on the welfare of the child and does not seek to fetter judicial discretion regarding the factors they can take into account when making an order under the legislation.
I appreciate that this is a sensitive and complex issue. That is why the Ministry of Justice last year established an expert panel on how the family courts deal with allegations of risk of harm in private law children proceedings. The panel has considered the issue of parental contact, informed by the over 1,200 submissions of evidence it received. Its recommendations will be published in the coming weeks.
I have no doubt that the hon. Members for Hove and for Birmingham, Yardley, and other members of the Committee, will want to return to this matter once they have had the opportunity to consider the expert panel’s report. On that basis, I invite the hon. Member for Hove to withdraw the new clause.
Peter Kyle
As the Minister expects, I will withdraw the new clause, because we do want to assess that. We want to ensure that this issue gets as much debate between us as possible before the next stage, as well as at the next stage and beyond. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 37
Victims of domestic abuse: data-sharing for immigration purposes
“(1) The Secretary of State must make arrangements to ensure that personal data of a victim of a domestic abuse in the United Kingdom that is processed for the purpose of that person requesting or receiving support or assistance related to domestic abuse is not used for any immigration control purpose without the consent of that person.
(2) The Secretary of State must make arrangements to ensure that the personal data of a witness to domestic abuse in the United Kingdom that is processed for the purpose of that person giving information or evidence to assist the investigation or prosecution of that abuse, or to assist the victim of that abuse in any legal proceedings, is not used for any immigration control purpose without the consent of that person.
(3) Paragraph 4 of Schedule 2 to the Data Protection Act 2018 shall not apply to the personal data to which subsection (1) or (2) applies.
(4) For the purposes of this section, the Secretary of State must issue guidance to—
(a) persons from whom support or assistance may be requested or received by a victim of domestic abuse in the United Kingdom;
(b) persons exercising any function of the Secretary of State in relation to immigration, asylum or nationality; and
(c) persons exercising any function conferred by or by virtue of the Immigration Acts on an immigration officer.
(5) For the purposes of this section—
“consent” means a freely given, specific, informed and unambiguous indication of the victim or witness, by an express statement of that person signifying agreement to the processing of the personal data for the relevant purpose;
“immigration control purpose” means any purpose of the functions to which subsection (4)(ii) and (iii) refers; “support or assistance” includes the provision of accommodation, banking services, education, employment, financial or social assistance, healthcare and policing services; and any function of a court or prosecuting authority;
“victim” includes any dependent of a person, at whom the domestic abuse is directed, where that dependent is affected by that abuse.”—(Jess Phillips.)
This new clause would require the Secretary of State to make arrangements to ensure that the personal data of migrant survivors of domestic abuse that is given or used for the purpose of their seeking or receiving support and assistance is not used for immigration control purposes.
Brought up, and read the First time.
Victoria Atkins
As the hon. Member for Birmingham, Yardley has explained, new clause 37 seeks to prevent personal information about victims of domestic abuse from being shared for the purpose of immigration control in cases where the individual has not given their consent. The new clause seeks to ensure that migrant victims are not deterred from reporting domestic abuse or seeking support for fear that immigration enforcement action will be taken against them.
The Government share that objective, and it was shared by the Joint Committee on the Draft Domestic Abuse Bill, which made a related recommendation in its report. Before I turn to the issue of consent, the hon. Lady may recall our response to the Joint Committee last year. The Government were clear that all victims of domestic abuse should be treated first and foremost as victims. That is set out in relevant guidance from the National Police Chiefs’ Council.
Although we were unable to hear from Deputy Chief Constable Louisa Rolfe, the national policing lead on domestic abuse, during the Committee’s oral evidence session, she did give evidence on the previous iteration of the Bill. She was clear that there would be circumstances in which information sharing between the police and immigration authorities is in the interests of safeguarding victims of abuse. It can help resolve a victim’s uncertainty about their immigration status.
My hon. Friend the Member for West Aberdeenshire and Kincardine made a point about removing the perpetrator’s ability to coerce, control and manipulate. It can also help prevent victims from facing enforcement action if they are identified by immigration enforcement in an unrelated system. On the particular constituency point that the hon. Lady raised, I ask her to speak to me afterwards as I would like to investigate further.
To ensure the victim’s needs are put first, the National Police Chiefs’ Council strengthened its guidance in 2018, setting out a clear position on exchanging information about victims of crime with immigration enforcement to encourage a consistent approach across the country. That gives us confidence that data sharing will operate in the interests of the victim.
Turning to the points on consent, alongside our duties to protect victims of crime, the Government are equally duty bound to maintain an effective immigration system, not only to protect public services but to safeguard the most vulnerable from exploitation because of their insecure immigration status. The public expects that individuals in this country should be subject to our laws, and it is right that when individuals with an irregular immigration status are identified they should be supported to come under our immigration system and, where possible, to regularise their stay.
Christine Jardine (Edinburgh West) (LD)
I take on board what the Minister is saying, but I keep coming back to the fact that a crime has taken place: it is domestic abuse; it is violence against women. We are making it difficult for the authorities to act in a lot of cases by making the victim afraid of coming forward and we are not identifying people who are a danger, and not just to those women but to others.
Victoria Atkins
I understand the hon. Lady’s point. It is the balancing act that the Government must employ, and not just on this subject matter. Where there are competing interests, we have to try to find that balance and we take that very seriously. We listen very carefully to concerns that are raised—I am very happy to discuss individual cases outside the glare of the Committee—but we have to abide by our duty to ensure that there is an effective immigration system. We have to balance that against our duties towards the victims.
The data exchanged between the police and law enforcement are processed on the basis of it being in the public interest, as laid out in articles 6 and 9 of the General Data Protection Regulation and the Data Protection Act 2018.
The problem with consent is that it can be withdrawn at any time—that is the point of consent. As such, it cannot be the basis on which public bodies, such as the Home Office, discharge their duties in the interests of all of the public. To require consent would, we fear, undermine the maintenance of effective immigration control.
I emphasise that we must, of course, keep the NPCC guidance under review, and we work with it to do just that. There are other ways of scrutinising the conduct of the police and, indeed, the Government. We know that there are two forms of legal action on this subject at the moment. Clearly, we will reflect on the findings of those cases when they are delivered.
I very much understand the motivations of the hon. Member for Birmingham, Yardley in tabling the new clause, but I must balance the interests of victims with the need to ensure that our immigration system works as effectively as possible.
Jess Phillips
I do not doubt the Minister’s sincerity in wanting to ensure that this matter is sorted out. She invoked the public, and she is right that the public would expect people to live within the rules. However, I think if we asked the general public, “Would you rather a rapist was not reported or that somebody got to stay in the country a bit longer?”, they would be on the side of ensuring that crimes are properly investigated and that people come forward to help deal with those crimes.
All I am trying to do is send a clarion call to victims: “You will be safe and you will be supported if you come forward.” All we are ever trying to do in the field of domestic abuse is to increase the number of people who come forward. That is why we would never ever criticise when domestic abuse figures go up, although it would be easy to use it as a blunt tool and do that; in fact, we all celebrate the idea that more people are coming forward. That is all I seek to do with the new clause. I do not doubt that the Minister agrees and wishes to ensure that that is always the case.
What I would ask, as the situation is reviewed and as we work with the NPCC, is for some sort of evidence—once again, we are calling for an evidence base—that when these matters are passed on to immigration control, it is less about enforcement and more about safeguarding. I am sure that, over a period of time, that data could be collected.
I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 42
Joint tenancies: removal of a tenant
“(1) This section applies where there are two or more joint tenants under a secure or assured tenancy and the landlord is a local housing authority or a private registered provider of social housing.
(2) If one joint tenant (“A”) has experienced domestic abuse from another joint tenant (“B”) then A may apply to the county court for an order B is removed as a joint tenant.
(3) For the purposes of subsection (2) it sufficient that the domestic abuse was directed at A or to anyone who might reasonably be expected to reside with A.
(4) On such an application, the court must take the following approach—
(a) the court must be satisfied that the tenancy is affordable for A, or will be so within a reasonable period of time;
(b) if the court is so satisfied, then—
(i) if B has been convicted of an offence related to domestic abuse as against A or anyone who might reasonably be expected to reside with A, the court must make an order under this section;
(ii) if B has been given a domestic abuse protection notice under section 19, or a domestic abuse protection order has been made against B under section 25, or B is currently subject to an injunction or restraining order in relation to A, or a person who might be reasonably expected to reside with A, the court may make an order under this section.
(c) for the purposes of subsection 4(b)(ii), the court must adopt the following approach—
(i) if B does not oppose the making of such an order, then the court must make it.
(ii) if B does oppose the making of such an order then it is for B to satisfy the court that – as at the date of the hearing - there are exceptional circumstances which mean that the only way to do justice between A and B is for the order to be refused.
(d) if the application does not fall within subsection (b), then the court may make such an order if it thinks it fit to do so.
(5) Where A has made such an application to the court, any notice to quit served by B shall be of no effect until determination of A’s application or any subsequent appeal.
(6) Notwithstanding any rule of common law to the contrary, the effect of an order under this section is that the tenancy continues for all purposes as if B had never been a joint tenant.
(7) For the purposes of this section, an “offence related to domestic abuse” means an offence that amounts to domestic abuse within the meaning of section 1 of this Act.
(8) In section 88(2) Housing Act 1985, after “section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.)” insert “, or section [Joint tenancies: removal of a tenant]Domestic Abuse Act 2020,”.
(9) In section 91(3)(b) Housing Act 1985, after subsection (iv), add “(v) section [Joint tenancies: removal of a tenant] Domestic Abuse Act 2020.
(10) In section 99B(2) of the Housing Act 1985 (persons qualifying for compensation for improvements) paragraph (e), after subsection (iii) add “(iv) section [Joint tenancies: removal of a tenant] Domestic Abuse Act 2020.””—(Jess Phillips.)
This new clause would facilitate occupiers of social housing removing one joint tenant from the tenancy agreement where there has been domestic violence. The tenancy would then continue (so preserving existing rights). The court must be satisfied that the applicant can or will be able to afford the tenancy.
Brought up, and read the First time.
Jess Phillips
No, they absolutely are carrying out their statutory duty, but the statutory duty is only about refuge—unlike the statutory guidance regarding servicemen and women, which is that they are allowed to move without local connection, recognising that base life does not necessarily mean that they are based in a place, so they might not have a local connection, as well as tipping the hat to people who deserve a break when they are presenting to homelessness services. It is essentially the same thing—recognition that people living in certain circumstances might need extra help. I am sure the hon. Lady does not wish to be political about this, but I could list lots of Tory councils that turn away victims of domestic abuse, and many that have no current provision for refuge, but send their victims to a neighbouring local authority; that is not uncommon. The way some councils choose to fund this is to fund it elsewhere, which I think is problematic and will certainly be furthered by the new statutory duty.
The Government will pay for this statutory duty, which may lead to people having to present to homelessness teams in different areas when they do not have a connection to the local area. That is the problem I am trying to overcome. Together, the new clauses will help to ensure that all women and children fleeing domestic abuse can access safe housing where and when they need to. I urge colleagues to support new clauses 43 and 44 to bar local authorities from imposing dangerous local connections restrictions on survivors of domestic abuse.
Victoria Atkins
I apologise at the start because, just as the hon. Member for Birmingham, Yardley went into the fine detail of housing law, so, sadly, will I. I will try to cut it down.
We understand the motivation behind new clause 42. Abusers seek to control their victims in many different ways, and threatening to make their victims homeless or actually making them homeless by ending a tenancy is a particularly pernicious form of control. However, we have concerns about the drafting of the new clause, as it would apply only to local authority and housing association periodic tenancies, whereas most social tenants have periodic tenancies that are often known as lifetime tenancies, which generally mean that they can stay in their home for the rest of their life, provided they comply with the terms of the tenancy. A social tenancy with lifetime security of tenure is a valuable asset, which is why the Bill includes provisions designed to protect the security of tenure of victims of domestic abuse when granted a new tenancy by a local authority.
Notwithstanding the general position on security of tenure, current law provides that if any joint tenant of a period tenancy serves a notice to quit, it brings the whole tenancy to an end and the landlord can seek possession. The rule is of long standing; it has been established in many cases over the years and was recently upheld by the Supreme Court. It aims to balance the interests of each joint tenant and the landlord. For example, it would allow a victim of domestic abuse who has had to flee her home to ensure that she is no longer bound by the full obligations of the tenancy, which she is no longer able to enjoy. We recognise that the rule may be problematic in some cases of domestic abuse where the perpetrator can use it to exert control. I appreciate that the aim of the new clause is to find a way around that, to enable victims of abuse to remain in their current home, without fear that the abuser may seek to terminate the tenancy.
We are concerned about a number of areas of the new clause. It would allow the victim to apply to the court to remove the perpetrator from the tenancy, which is intended to effectively transfer the tenancy into the victim’s name. Where there are other joint tenants, it would have the effect of transferring the tenancy into the names of the victim and of those other joint tenants. As my hon. Friend the Member for Darlington pointed out so eloquently—perhaps he should have declared an interest as a long-standing solicitor, as he was bringing his expertise into this—it means that victims may face the prospect of unresolved or remaining debts and costs because of any damage that the perpetrator may have caused to the property. The perpetrator will not be liable, as they will have been removed from the tenancy.
The new clause also fails to provide for how the interests of third parties may be taken into account by the court, including those of the landlord, any other joint tenant or any children in the relationship. A decision to grant a tenancy lies with a landlord. Where a landlord has decided to grant a tenancy to two or more individuals jointly, this new clause means that the number of tenants may be changed without reference to the landlord as the property owner.
It is important to bear in mind that landlords may have other reasons, outside of affordability, for deciding to grant a joint tenancy. In addition, this could amount to an interference with a housing association landlord’s own rights under the human rights legislation. Since this engages other parties’ human rights, we need to consider carefully what is the right approach in order to balance those rights, and ensure that any interference is proportionate and justified.
I understand that officials from the Ministry of Housing, Communities and Local Government are engaging with the domestic abuse sector and other relevant stakeholders on these issues, regarding the termination of joint tenancies. I am happy to give a commitment that we will continue to consider the issues with the sector, with a view to arriving at a workable solution.
Turning to new clause 43, this seeks to amend section 199 of the Housing Act 1996, which defines local connection. Local connection relates to how local housing authorities establish and carry out their statutory homelessness duties under part VII of the Act. If an applicant does not have a local connection, as defined by section 199, a housing authority can refer that applicant to another housing authority where they do have a local connection and can access this support. However, under that legislation, the authority must ensure that the conditions for referral are met. This means that a housing authority cannot refer an applicant to another authority if they, or anyone who might reasonably be expected to reside with them, would be at risk of violence.
The homelessness code of guidance makes clear that a housing authority is under a positive duty to enquire whether the applicant would be at such a risk, and stipulates that authorities should not impose a high standard of proof of actual violence in the past when making its decision. The changes the Government propose to make in this Bill, in order to ensure that domestic abuse victims are considered to be in priority need for homelessness assistance, will be strengthened further by amending section 198 of the Housing Act 1996, so that a local authority cannot refer an applicant if there is a risk of not only violence but domestic abuse, as defined in the Bill.
Local connection is also a factor in how many local authorities determine priority for social housing. The allocation of social housing is governed by part VI of the Housing Act 1996. Local authorities must give reasonable preference for social housing to certain groups of people, including those who are homeless or who need to move for medical or welfare reasons. To help them determine the relative priority of applicants who fall into these groups, they may, but are not obliged to, use local connection as defined in section 199. Existing statutory guidance, to which authorities must have regard, makes it clear that they should consider giving additional preference within their allocation schemes to people who are homeless and require urgent rehousing as a result of domestic abuse. Existing legislation and guidance should therefore ensure that the intended purpose of new clause 43 is already in effect. It is not correct to say that a victim of domestic abuse needs to have a local connection for the purposes of a homelessness application, and lack of local connection should not prevent victims of domestic abuse from getting priority for social housing.
Victoria Atkins
May I take a moment to thank my hon. Friend the Member for West Aberdeenshire and Kincardine for his non-point of order? It is right that my right hon. Friend the Member for Maidenhead (Mrs May) be mentioned in Committee. Ministers are always encouraged by the Whips to engage with Back Benchers. It is an important part of the job to listen, consider views and try, where possible, to accommodate them. At the best of times that can be, depending on the Back Bencher, an interesting exercise, but Members can imagine what it is like to try to do Back-Bench engagement with a former Prime Minister who introduced the Bill that is the subject of that engagement: it is on a whole new level. I am delighted that she was mentioned again in the scrutiny of the Bill.
I am grateful to the hon. Member for Birmingham, Yardley for raising the point covered by the new clause. As she said, it stems from a campaign by the Prison Reform Trust. I note that my hon. Friend the Under- Secretary of State for Justice met trust representatives, the designate domestic abuse commissioner and the Victims Commissioner recently, to discuss the issue, among others. It has very much had his attention, as it now has mine.
We of course recognise the harm that is suffered by victims of domestic abuse. That is why the aim of the Bill is specifically to target it and raise awareness and understanding of its impact. It seeks to raise the profile of domestic abuse in all its forms, particularly given its pernicious nature, and to improve the effectiveness of the justice system in providing protection for victims and bringing perpetrators to justice. It also seeks to strengthen the support for victims and survivors provided by statutory agencies. The definition should help further in clarifying the wide-ranging nature of domestic abuse for all those involved in the criminal justice system, at every level.
There are several defences that are potentially available under the law. The hon. Member for Birmingham, Yardley raised some cases in her speech. I have to deal with the fact that we have these defences. The hon. Lady herself acknowledged that there will be occasions where those involved in the system do not apply the law in the manner that Parliament intended. None the less, we still have to respect the independence of the judiciary, the Crown Prosecution Service and the police in ensuring that our criminal justice system works. She mentioned the defences of duress and self-defence, which are full defences. In homicide cases we have the partial defences of loss of control and diminished responsibility.
I recognise that legal representatives and the CPS should be made aware, as soon as possible, of domestic abuse histories and their impact, in the course of making charging decisions and when considering guilty pleas. That needs to be balanced alongside the recognition of the harm done by the perpetrator of a crime and the impact on the victim, in order to ensure, wherever possible, that people do not revert to criminal behaviour. That is reflected in the law, which continues to evolve and aims to strike the right balance between these factors.
The hon. Member for Birmingham, Yardley relies on the model set out in section 45 of the Modern Slavery Act 2015. We have concerns that that model would create anomalies with other offences. For example, there is a range of offences, mainly serious sexual or violent offences, to which the section 45 defence does not apply, in order to avoid creating a legal loophole for serious criminals to escape justice. The offences that are excluded are set out in schedule 4 to the 2015 Act, which schedule 1 seeks to replicate. Identifying the trigger point resulting in the behaviour that caused the offence remains problematic. If that defence is to be raised, the issue would become at what point in time and in relation to which type of level of domestic abuse the defence became available. Establishing such a threshold would be incredibly difficult. To clarify the circumstances in which the defence would be permissible would likely reduce the applicability or effect of the new defence to the parameters already set out in existing defences. Additionally, a full defence for a defendant subject to domestic abuse would create anomalies with defendants subject to other forms of harm, such as sexual harassment from strangers. Those are anomalies I am sure that none of us would want to see.
Let me deal with the point about the Modern Slavery Act. In earlier debates I talked about the evolving methodology of gang leaders and their efforts to ensnare young people into their gangs. We have in mind that we hear from law enforcement partners that the statutory defence for victims of modern slavery is being misused, primarily by the gang leaders, to persuade the young people they are manipulating and exploiting that it does not matter if they are caught, because they will get off anyway. That will not be the case, particularly for the sorts of serious offences that are not set out in the schedule. This comes back to the point about the ability of perpetrators and those who would exploit and manipulate other human beings, and their never-ending capacity to find new ways to do so—we are concerned about that aspect as well. The hon. Member for Birmingham, Yardley mentioned a female victim of a gang being instructed to have sex with members of that gang—sadly, that is a factor that we know happens in gangs. Gang leaders find many ways to exploit vulnerable people in all walks of life, but particularly in those very hard-edged crimes. We are working with criminal justice partners to assess how the modern slavery defence is used in practice and the repercussions of that.
Existing full and partial defences cover circumstances in which a defendant is also the victim of domestic abuse. Indeed, full defences, including duress and self-defence, are defences to any crime, which, if pleaded successfully, result in acquittal. I refer to the debate that I had with the hon. Member for Hove about the decision-making process that the CPS must go through before the decision to charge is taken. At every stage of the criminal justice process, there are checks and balances. For example, at half-time, when the prosecution has closed its case, if the prosecution has failed to establish a case such that a judge feels confident to leave it to the jury, the judge will stop that case there and then. The jury will not be asked to deliver a verdict because the judge has ruled that, at the half-time submission, the evidence is insufficient and the prosecution has not done their job.
We have those checks and balances all the way through to the closing speeches. When I used to prosecute cases, I would always say to the jury, “If you find yourself using the words, ‘Possibly,’ ‘Likely,’ or ‘Probably,’ I have not done my job proving the case against the defendant beyond reasonable doubt.” Those are the sorts of checks and balances that have been worked out over time to ensure that the guilty are convicted and the innocent are acquitted.
Partial defences, such as diminished responsibility and loss of control, reduce a charge for murder to manslaughter. Very recently, the incredibly moving case of Sally Challen not only demonstrated that partial defences can be employed, but showed the improvement in our understanding over a matter of years. Ms Challen was convicted in 2010 and a matter of years later, we have a better understanding of domestic abuse, and her appeal was successful.
Those checks and balances are important to ensure that, wherever possible, victims make their background and circumstances known. I very much hope that the Bill’s success in raising awareness about the sorts of things that the Committee has debated in such depth and degree will ensure that the justice system is as effective as it can be in providing victims and survivors with as much protection as possible—I am sure that I will work on that with colleagues from across the House. On that note, I will conclude.
Jess Phillips
It seems almost unfair on the Minister that I get the last word on a Bill that she introduced, but that is the system. I welcome what she said, and I will take up that issue with the Under-Secretary of State for Justice, the hon. Member for Cheltenham, and with the Prison Reform Trust.
I am very interested in—but unsurprised about—the idea that, in the Modern Slavery Bill, there is potential to say, “You are going to get away with it,” without recognising that what we are talking about here is mostly minor crimes—nothing that causes harm to others, no sexual abuse and no domestic abuse. However, it is very much the case that in patterns of abuse, people end up abusing other people. That is a complex area and we want fairness both for those who are accused and for those who are suffering. I will withdraw the new clause, and everybody can finally be done with the millions of amendments. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Victoria Atkins
On a point of order, this is the moment at which it is customary to say a few words to mark the end of our deliberations in Committee and to reflect on the intensive scrutiny that the Bill has received, but also to thank certain people for their help in assisting the Committee with our scrutiny. These thanks come very much from my hon. Friend the Member for Cheltenham as well as from me. He is busy elsewhere in the Palace, but he is very keen to thank people as well.
First, I thank you, Mr Bone, and Ms Buck. You have both managed to keep us in order at an appropriate distance, which is a skill. I thank my hon. Friend the Member for Cheltenham; it has been a genuine pleasure to work on this stage of the Bill with him. He has shown just what an expert he is as a Justice Minister, having been in the job for only a very short period. He is a real joy to work with and has really made his mark already.
They are not often thanked, but I also thank my Government Whip, my hon. Friend the Member for Castle Point, who has been excellent in ensuring that, on most days—every day, in fact—we finish on time. She has also been very generous with the hand sanitiser. I genuinely thank the Opposition Front Benchers. The hon. Member for Birmingham, Yardley has brought all her experience outside this place into the Committee room, and I sincerely thank her for that. I thank the hon. Member for Hove for his very pertinent but charmingly articulated points, which can often be deadlier than shouting and creating a fuss. I also thank the hon. Member for Blaydon, the Opposition Whip—our Whips play an incredibly important part in ensuring that the Committee works properly and works to a timetable.
Of course, I thank the Clerks, who have had to, with other colleagues in the House, really test what the Palace—and this room—can accommodate in these very difficult circumstances. Thanks, of course, go to Hansard. It seems like a lifetime ago that we were in Portcullis House and being instructed that Members sat at the back of the Public Gallery would have to shout for Hansard—what extraordinary times, but we managed it. I would normally thank the Doorkeepers; we have not had any Doorkeepers, but I thank them anyway.
I thank the officials and lawyers from the Home Office, the Ministry of Justice, the Ministry of Housing, Communities and Local Government, the Department of Work and Pensions, the Department for Education, the Department for Business, Energy and Industrial Strategy and the Department for Health and Social Care—seven Government Departments have been involved in the Bill thus far. Special mention must go to a certain Charles Goldie, the Bill manager. This is, I believe, the 20th Bill—[Interruption]—the 21st Bill that Charles has manoeuvred through Parliament in expert fashion. To put that in context, last night, when we were dealing with one of today’s new clauses—the reasonable force clause—I discovered that the 2008 Act on which the hon. Member for Hove was relying was managed by a certain Charles Goldie.
I do not want anyone to feel left out, so I must thank Kate in my private office, who has been doing amazing work alongside Robert, who is the MOJ private secretary. They have really tried to get around the awful fact that we cannot have box notes, so Kate has been tapping away furiously. I thank her very much for everything that she does.
I thank the other members of the Committee for what has been really interesting, thoughtful and thought-provoking scrutiny. I hope that they feel that they have both contributed to and gained from that. I look forward to their contributions at the next stage.
Finally, I thank all the witnesses who contributed, both in person and in written form. Particular thank go to the organisations that work on the frontline with domestic abuse victims and survivors, and to the victims, who were very brave and came to give live evidence before the Committee to tell us their lived experiences. Thanks to them all—that is why we are trying to pass this piece of legislation.
The Chair
Thank you, Minister, for that totally bogus point of order. It was one of the longest points of order that I have ever had, but perhaps one of the best.
Question put and agreed to.
Bill, as amended, accordingly to be reported.