Grand Committee

Wednesday 3rd February 2021 Grand Committee

Wednesday 3 February 2021

The Grand Committee met in a hybrid proceeding.

Arrangement of Business

Wednesday 3rd February 2021 Grand Committee

Announcement

14:30

[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

My Lords, the hybrid Grand Committee will now begin. Some Members are here in person, respecting social distancing, and others are participating remotely, but all Members will be treated equally. I ask Members in the Room to wear a face covering except when seated at their desk, to speak sitting down and to wipe down their desk, chair and any other touchpoints before and after use. If the capacity of the Committee Room is exceeded or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes. The time limit for the debate is three hours.

Bribery Act 2010: Post-legislative Scrutiny (Select Committee Report)

Wednesday 3rd February 2021 Grand Committee

Motion to Take Note

14:31

Moved by

[Lord Saville of Newdigate]

That the Grand Committee takes note of the Report from the Select Committee on the Bribery Act 2010 The Bribery Act 2010: post-legislative scrutiny (HL Paper 303, Session 2017–19).

[Lord Saville of Newdigate (CB) [V]]

My Lords, the report of the committee charged with post-legislative scrutiny of the Bribery Act 2010 was published almost two years ago. The delay in the report coming before this House was caused by general elections, Brexit and, to some extent at least, the Covid epidemic.

I start with the good news. In the view of the committee, a view shared among all our witnesses, the Act is an excellent piece of legislation, sweeping away many unsatisfactory features of the previous law and instead creating offences that are clear and all-embracing. In particular, the new offence of corporate failure to prevent bribery puts the onus on companies to conduct themselves in an ethical way and, where necessary, to take adequate steps to prevent persons associated with them from indulging in bribery. In light of this provision, the committee was not persuaded by the suggestion that companies should be made criminally vicariously responsible for bribery. The report is therefore mainly devoted to considering how the Act has operated in practice and whether improvements can be made to the way it is being implemented.

Time does not permit me to address all of the matters that we considered, but there are some that I would like to raise today. The first relates to deferred prosecution agreements, a novelty in English law. These are bargains between prosecutors and a company under which the prosecutor agrees not to proceed with a prosecution against the company for a fixed time in return for the company mending its ways and paying a financial penalty. DPAs were a creation not of the Bribery Act but of the Crime and Courts Act 2013. However, the Liaison Committee, when recommending the setting up of the bribery committee, specifically invited us to consider DPAs as they have affected the conduct of companies, both to prevent corrupt conduct and in the investigation of such conduct when it is suspected of having occurred.

DPAs apply to many economic crimes other than bribery, but it appears that their principal use to date has been in relation to corporate bribery. As your Lordships will see from the report, the committee considered that DPAs can perform, and have to date performed, a very useful function in combating corporate bribery. We were not persuaded, as some have suggested, that they provide an easy way out for rich companies, but not poor ones, to avoid prosecution. There are, however, three aspects that I want to stress.

The first is that we consider it vital that, unlike in other countries, DPAs continue to be subject to judicial control—in other words, only initiated after judicial scrutiny if the judge is satisfied that an agreement is likely to be in the interests of justice and that the proposed terms are fair, reasonable and proportionate, and sanctioned publicly by the court only if the judge is satisfied that the final terms do in fact satisfy these requirements. The second point is that DPAs must not be used as a means of avoiding the prosecution of the individuals actually responsible for the bribery in question. The third point relates to the financial penalty. Under the present law, the amount of the penalty should be broadly comparable to the fine that a court would have imposed on conviction following a guilty plea. In general terms, this results in a discount of one-third of the maximum that could be ordered. However, the discounts given in some DPAs in recent years have been as high as 50%.

I stress that the committee in no way considered that the judgments in these cases were wrong, as there was clearly ample justification for the greater discount. However, they were cases where the company had not self-reported the bribery. We took the view that self-reporting by companies should be encouraged and that, accordingly, a company that has not self-reported should normally receive a lesser discount than a company that has done so, whatever co-operation the company later provided. In their response to the report, the Government noted this recommendation but made no commitment towards encouraging self-reporting by companies. I, for one, hope that they will at least keep this matter under review as, at present, we see a risk that companies will consider that there will be little or no benefit to be gained from self-reporting.

On another topic, we were firmly of the view that there should be no exceptions to the offence of bribery in cases of so-called facilitation payments. These are, in general, small payments in cash or kind to bribe officials into properly performing their public duties rather than failing to do so or taking undue time. There is no doubt that there are some countries where officials are low paid in the expectation that they will add to their wages by this means. This state of affairs often puts the person asked for a bribe in a very difficult position. For example, a ship’s captain with a valuable perishable cargo on board risks losing it through delay if he does not sweeten the harbour-master to let him berth in due time, by giving him a bribe of cigarettes or whisky of miniscule value compared with that of the cargo. The committee is heartened by the fact that the Government have stated unequivocally that no exceptions should be made for facilitation or similar small bribes. It is noteworthy that some countries that did enact exceptions have now abolished them.

A good deal of the report is taken up with the question of educating people on the Bribery Act. We had quite a considerable body of evidence to the effect that people were either ignorant of its provisions or misunderstanding them. There is not sufficient time today to go into this question in detail, but for example, many seem to have had difficulty in distinguishing between unobjectionable corporate hospitality and attempts to gain an improper advantage. This is said, among other things, to have had an adverse effect on financial support through corporate hospitality for sporting activities.

On the general matter of guidance on the Bribery Act, we made a number of specific recommendations for improvement. As will be seen from the Government’s response to the report, we failed to persuade them to adopt or carry forward many of the suggestions that we made. However, we do urge the Government to ensure that these matters are best kept under constant review, especially in the case of SMEs seeking to open or enlarge their trade with other countries, a vital part of our economy. Greater knowledge and understanding of the Bribery Act can, in our view, only assist in combating corruption. Corruption is an evil that, if allowed to flourish, is extremely damaging to our society.

At the time of our report, we did not know what the Brexit outcome would be. Concerns were expressed about the possible effects on European co-operation, since there were many EU measures in force to support and enhance security and law enforcement, some of which were of particular importance in the investigation and prosecution of bribery offences, which often cross national borders. I have asked the Minister present today to give us an update on the position.

On a final note, I pay tribute to those who fashioned the Bribery Act. Faced with an extremely unsatisfactory state of affairs and a long history of less-than-successful attempts to remedy matters, they produced what I would describe as a model piece of legislation, bringing simplicity, clarity and certainty to an important part of our criminal law. I beg to move.

14:42

[Lord Hain (Lab) [V]]

My Lords, I thank the noble and learned Lord, Lord Saville of Newdigate, for his instructive introduction and welcome the report of the committee.

The international scope of both the UK Bribery Act —introduced by Labour when I was a Cabinet Minister —and the US Foreign Corrupt Practices Act is important, with anti-corruption campaigners reporting a continuing rise in global bribery and corruption. For instance, Goldman Sachs has agreed to pay $2.9 billion, or £2.2 billion, to settle a US-led investigation and its Malaysia division also agreed to plead guilty to violating foreign bribery laws linked to the alleged looting of the country’s sovereign wealth fund, 1MDB. Airbus had to set aside $3.6 billion last year to cover settlements with authorities in the US, France and Britain after admitting it had paid huge bribes on an endemic basis to secure contracts in 20 countries. Furthermore, the Covid-19 pandemic has opened up opportunities for bribery and contracts for cronies worldwide, including in Britain where an uncommon number of ministerial mates seem to have benefited.

Nevertheless, as the committee reported, the Bribery Act does not seem to have prejudiced UK business. Perhaps, as the noble Lord, Lord Gold, suggested in a recent article, the Act has resulted in companies improving their governance and compliance by not using third-party agents and therefore, as he wrote, has,

“frightened many companies into honesty”.

However, perhaps the strikingly low rate of prosecutions under the Bribery Act, as the committee pointed out, is because of the slow pace of bribery investigations, with a number of witnesses criticising the time it had taken for bribery charges to be brought and cases to reach trial. The committee rightly recommended that the director of the Serious Fraud Office and the Director of Public Prosecutions publish plans outlining how they will speed up investigations into bribery and improve communication with those placed under investigation for bribery offences.

However, is not the real problem that there are simply not enough resources being invested by the Government into enforcing the Bribery Act and money laundering legislation? Enforcement and investigative agencies, such as the Serious Fraud Office, the National Crime Agency and the Financial Conduct Authority, require proper resourcing to utilise the legislation to conduct investigations—some very complex—and bring prosecutions. Yet across the world that has not been the case. In the UK, these agencies have not had anything resembling the resources required to combat financial crime in recent years, leading to a request in 2019 from the head of the National Crime Agency for an additional £2.7 billion in funding for that agency alone. That is just one of the agencies involved in combating bribery requesting an additional £2.7 billion to enable it to do its job properly. No wonder London is regarded by many as the money laundering centre of the world, where the legislation is stringent but the enforcement and policing is certainly not.

As I demonstrated in debates in 2017-18 in your Lordships’ House on the Sanctions and Money Laundering Act, London-based global corporates such as HSBC, Standard Chartered and Baroda Bank facilitated massive looting and money laundering from South African taxpayers under former President Zuma and his cronies the Gupta brothers. London-based corporates McKinsey, KPMG, and Bain & Co admitted to raking off multi-million fees from President Zuma’s regime, its state agencies and state-owned enterprises. So guilty of complicity in corruption were these corporates that, when it was exposed, they sacked their top South African-based executives and made promises to pay back millions of fees they had received.

Why, however, were they not prosecuted in London under the Bribery Act? Is it because, like another London-based corporate guilty of whitewashing corruption and securing a lucrative fee, Hogan Lovells, the international law firm, told the Solicitors Regulation Authority that their South African arm enjoyed the same name only for “branding purposes”, and that London bosses were therefore not culpable in any way? You could have fooled me looking at their website and their activities internationally: they are a global corporate like the others that I have named. Surely corporates operating from London should be bound by the Bribery Act. Otherwise, people will ask: is it worthless? I hope the Minister will reassure me on these questions and I will be interested in any observations by the noble and learned Lord, Lord Saville of Newdigate.

14:48

[Baroness Bowles of Berkhamsted (LD) [V]]

My Lords, I welcome this report and commend the work and conclusions of the committee and the opening speeches by the noble and learned Lord, Lord Saville, and the noble Lord, Lord Hain.

I will speak about “failure to prevent” offences generally, but before that will speak briefly on the lack of clarity about what is meant by procedures being “adequate” for preventing bribery. This was brought about by the subsequently enacted tax facilitation offences using the alternative phrase “reasonable in all circumstances”. This is despite that having been dismissed in the Bribery Act debate as too high a standard by referring to “all circumstances”. In that context “adequate” was thought to be a lower bar. Certainly, if I congratulated a fictitious noble Lord on their “adequate speech”, it may not be taken as altogether complimentary.

Others switched the emphasis around so that, looking after the event, the bar is suddenly higher because procedures had failed and must therefore be inadequate. I am comforted that a senior judge said that he would have accepted them as both meaning the same had it been presented to him, but clarification on what is intended is desirable for both purposes.

I have mentioned the two “failure to prevent” offences and the reason for their existence is to strengthen the prospect of finding responsible parties guilty—which is very difficult because of the need to find a directing mind, and is tantamount to impossible with the board structures of large firms. Therefore, I welcome the point made in paragraph 109 that there are arguments to make corporations vicariously liable more generally, even though there is not a recommendation due to the inquiry’s scope.

It is some time since the Ministry of Justice made a call for evidence on corporate liability—to which I made a submission—and, after a long delay, the response is that there was not a sufficient evidence base on which to base reform. It has been sent off for lengthy procedures in the Law Commission, which already said in its 2010 paper on Criminal Liability in Regulatory Contexts that

“the identification doctrine can make it impossibly difficult for prosecutors to find companies guilty of some … crimes, especially large companies”,

and in its 2019 paper on suspicious activity reports that

“The identification doctrine can provide an incentive for companies to operate with devolved structures in order to protect directors and senior management from liability.”

Regrettably, I do not believe that the department has any heart to follow through on the Prime Minister’s call for action in 2016 and the good start shown by the Bribery Act. The only reason I can imagine for that squeamishness is that somehow it thinks it is a competitive advantage to shield directors in a way that they are not shielded elsewhere, such as in the United States.

A read of the call for evidence background document gives a good exposition of how bad matters are and many of the reasons why evidence of failures in prosecutions is relatively scant—because prosecutors know they cannot succeed against large companies and give up, unless sector-specific legislation has been introduced such as the “failure to prevent” regimes or the now systematically compromised financial services senior managers’ regime.

The current common law “directing mind” principle, first expounded in 1915, is unfairly discriminating to small businesses. The Crown Prosecution Service’s legal guidance, under “Further Evidential Considerations”, states:

“The smaller the corporation, the more likely it will be that guilty knowledge can be attributed to the controlling officer and therefore to the company itself.”


Given the general guidance for prosecution that there must be a “realistic prospect of conviction”, no wonder evidence is scant and statistics show a preponderance of prosecutions against small companies.

How can that unfairness be left to stand? What does it say about the culture of our country and why people feel left out? While acknowledging the fact of wrongdoing, people nevertheless rightly resent there being one law for the big and another for the small. Dancing-on-pins excuses do not cut that.

Civil law developed to take account of the complexity of modern companies, but not criminal law. Civil law is not enough: the ultimate deterrent of deprivation of liberty cannot apply to corporations, and in the end it does not apply to directors in large corporations. Culture will not change until it does, and the UK being “a good place to do business” is a tainted phrase—maybe even a loaded phrase. Surely directors should be required to ensure systems to prevent all bad corporate behaviour. Only then will action make its way to the boardroom, rather than be kept away in the safety of the executive committee or below.

But if the ministry is reluctant—whatever the cause—will it at least not stand in the way of further sectoral facilitation of crime measures?

14:54

[Lord Gold (Con) [V]]

First, I thank the noble and learned Lord, Lord Saville, for securing this debate and for ably chairing the Select Committee, and also thank the noble Lord, Lord Hain, for plugging my recent article.

The Select Committee report we are considering today stated that the Bribery Act

“is an excellent piece of legislation which creates offences which are clear and all-embracing.”

I agree and, in doing so, declare my position as a member of the committee. The new Section 7 offence of corporate failure to prevent bribery was innovative and has been most successful, not because there has been a plethora of prosecutions but rather because it has made CEOs and boards undertake their own review of their businesses to satisfy themselves that they comply with the new legislation.

The immediate reaction from businessmen when the Bribery Bill was enacted was that British companies would find it harder to compete internationally. There was a particular concern that facilitation payments were being outlawed and there was a fear—clearly unfounded—that the new Section 7 offence would be onerous. It was particularly interesting to the Select Committee that no witness giving evidence suggested that there should be any relaxation of the prohibition on facilitation payments.

Recognising the success of the Section 7 “failure to prevent” model, the Select Committee recommended that the Government should consider whether this should be adopted in other areas, notably to prevent economic crime. This issue is now being considered by the Law Commission. I ask the Minister to confirm that the Government will keep under review the possibility of extending the Section 7-style offence to this and, possibly, other areas.

In practice, as the Select Committee found, there is little sign that the Bribery Act has prejudiced UK business. If anything, it has resulted in companies improving their governance and compliance. Indeed, by not using third-party agents, which has been a cause of problems for many international businesses, companies have been better able to compete internationally, as they have developed closer direct relationships with their customers, instead of relying on middlemen to be the link.

Another area where the Bribery Act has been successful is in cutting corporate hospitality. The committee wondered whether the pendulum had swung too far and many companies were shying away from giving any hospitality to their customers, even though, properly administered, corporate hospitality can be a necessary and legitimate part of doing business.

The Ministry of Justice guidelines on what is permissible are clear and, although the committee suggested that the Government should consider adding further examples of what might constitute acceptable corporate hospitality, the Government declined to do so. They explained that the guidelines were drafted

“in a deliberately high-level, non-prescriptive way to encourage organisations to examine their own internal systems and procedures”,

and identified other sources for guidance—notably, Transparency International. I rather agree with this. Frankly, common sense should largely dictate what is permissible. A modestly priced working lunch or dinner is clearly on the right side of the line; an airplane being delivered to a customer, carrying a Rolls-Royce car as a sweetener gift, is not. Over time I am sure that companies will find the right balance.

The Select Committee reviewed deferred prosecution agreements which, as the report states,

“have had a major influence on some of the largest recent cases of corporate corruption, allowing them to be settled without the companies involved being convicted of the offences.”

This is terribly important, because the existence of a conviction may well mean that companies are debarred from undertaking certain business, notably government contracts, in all parts of the world. This would put companies at risk of close-down, with ensuing unemployment of their staff.

The committee recognised the need for careful judicial oversight of DPAs and identified two key conditions for one: first, whether the company self-reported; and, secondly, whether it then co-operated with the criminal prosecution. A further essential requirement is that the company embraces compliance and governance and demonstrates that it is committed to clean business in future and, as required by Section 7, will put in place processes and rules which will reduce the risk of this recurring. This commitment has to come from the very top of the company, fully supported by the board, demonstrating by their actions, not just words, that non-compliant business is unacceptable.

Over the past 10 years, I have worked closely with a number of major international businesses that have agreed a DPA and, in the run-up to securing that, have completely overhauled their compliance regime. I have been heartened by the approach adopted by each of those companies, and in every case I believe that the business has been strengthened by the measures adopted.

Finally, it is of concern that, where DPAs have been agreed, there have been so few successful prosecutions against individuals responsible for the criminal act. While strongly supporting DPAs, the committee reiterated the importance of prosecuting the “culpable individuals”. I ask the Minister to let us know whether the Government have any plans to address this issue and, if so, what they are.

15:00

[Lord Stunell (LD) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Gold, one of the many distinguished and high-powered members of the committee, on which I too served, under the very effective chairmanship of the noble and learned Lord, Lord Saville. It was as well-informed and expert committee as your Lordships would expect.

However, I was not one of those experts. I came on to it straight off the Clapham omnibus, via the Committee on Standards in Public Life. For me, the test was: how can we get to the gold standard of effectiveness in the fight against corruption, in the punishment of bribery, and in the deterrence of anyone from using bribery or corruption in other forms as a route to business success?

The UK has one of the better legal frameworks for tackling bribery—certainly up to silver standard but definitely not gold standard. We are high in the international corruption perceptions index, which is good, but we are not top of that list. Our score has fallen from 82 points out of 100 in 2017 to 77 points last year. A five-point decline in four years is not a world-beating performance, and we have now dropped out of the top 10 on that index. Surely we should be moving towards the gold standard, and not dropping down to bronze, in the years ahead. I will pick out two of our recommendations that show where we could reverse that decline and comment on another where I fear that the UK is now anyway committed to going further downhill.

First, regarding our skilfully drafted recommendation 9 on vicarious liability, on which others have already spoken, the issue for me is whether, when the ship sinks, the captain should go down with the ship or whether, so long as he did not realise that someone was steering on to the rocks, he should get away in the lifeboat with no court of inquiry to follow. To the lawyers, it is “mens rea”—not much spoken of on the Clapham omnibus. What normal people expect the law to do is to hand out just deserts to those in authority who show reckless ignorance of wrongdoing on their watch.

Instead, protected by the current law, it is absolutely in the best interests of those who run large businesses and multinational companies to keep themselves carefully ignorant of any evidence of bribery by underlings when they bring home big contracts and boost company profits. When knowledge means taking legal responsibility and ignorance means acquittal, the incentives are perverse. The committee noted evidence that, as a result of that, it is much easier to convict the boss of an SME than the boss of a multinational company. That, too, is a wholly perverse outcome of the current framework of legislation.

The committee’s recommendation does not endorse this perversity, but nor does it recommend any change. But if we ever want to get to gold standard, we will have to find a way to reconcile our legal principles with common sense, as has already been achieved in the United States and other jurisdictions to good effect. My question to the Minister is: does he actually want to be world-beating? Does he aspire to reach gold standard on corruption? If it is not via vicarious liability provisions, what does he propose as the alternative?

That brings me to the committee’s recommendation 20, where we pressed the Government to introduce a “failure to prevent” offence to a wider range of economic crimes and corrupt practices. There is clear evidence that a “failure to prevent” offence is an effective inducement to companies to put in place a culture of compliance and systems and processes to support that culture. Among other important benefits—like actually stopping bribery happening—it means that bosses cannot so easily shelter behind ignorance if a case does come to light. It is, therefore, very disappointing that the Government have given a very tepid response to our recommendation. I could quote the Government’s response at length, but I will summarise it by saying it was pretty much a lemon. It is a clear opportunity to raise our score on that index, so I hope to hear the Minister say that he will now quickly revisit this key issue and get things moving in the right direction.

Lastly, recommendation 14 focused on the European arrest warrant, where we said:

“The fight against international bribery will be significantly impeded if there are not in force … measures with equivalent effect to the European Arrest Warrant.”


In his evidence to us, the Minister, Ben Wallace MP, said that the loss of the EU arrest warrant

“would have a degrading effect on our ability”.

In the event, as your Lordships will know, the UK has ditched the European arrest warrant—a clear step backwards in the fight against corruption. So my final question to the Minister is: what concrete plans do the Government have to reverse this slide down the league and to rebuild our record of ethical business practices, both at home and abroad?

15:06

[Lord Morris of Aberavon (Lab) [V]]

My Lords, the Select Committee of your Lordships’ House is to be congratulated on an impressive and comprehensive report, which is a good example of post-legislative scrutiny. I well remember that, when I was a member of a similar scrutiny committee on the Defamation Act, there was a steep learning curve.

In the short time available, I can touch on only some of the report’s subjects. The first is the role of the CPS and the SFO. In my time as a law officer, I had to initiate reform of the CPS by setting up the Glidewell inquiry. In my supervisory role, I had regular meetings with the Director of Public Prosecution and less frequent meetings with the director of the Serious Fraud Office. My first point is that, as a criminal law practitioner, I was very conscious of the immense burden that prosecutors carried in investigating and prosecuting fraud cases, which were becoming more complex than they had been in the past. It is essential that investigators and prosecutors have sufficient resources to tackle the problems. May I ask the Minister to place on record the financial resources that the CPS and SFO have been getting annually since the beginning of the period when austerity cuts began? I believe that the Ministry of Justice accepted far too readily reductions in finance and, hence, manpower. Specifically, can we have the figures for both?

I regard it as important that the Director of Public Prosecutions and the director of the SFO should publish plans outlining how they will speed up bribery investigations and improve levels of communications with those placed under arrest under the Bribery Act. That is not to denigrate the Government’s response, which I welcome; my query is whether it goes far enough. The committee received evidence of relatively low salaries for lawyers and investigators at the SFO and the CPS in comparison with their private sector counterparts. That is only partially taken on board in the Government’s endorsement of the SFO’s increased budget. I make the same point as regards the rank of police investigators and the resources that the police are able to devote. I regard the Government’s response to paragraph 85 of the report, where the committee makes a valuable recommendation, as inadequate. I submit that the Government should look again at this now and repeatedly in future years.

I welcome the scrutiny that the committee has given to deferred prosecutions and pay tribute to the noble and learned Lord, Lord Garnier, for his advocacy. The emphasis is clear in the report that the judgment of the court should be public, and the public should be aware of what has happened and the conclusion.

On post-Brexit issues, the lower figures for applications for European arrest warrants at Westminster magistrates’ court in recent weeks are alarming. I am concerned by the Government’s claim that they have the available tools to ensure the safety of our realm and that we can get hold of people whom we require to face justice. I suspect that the tools are inadequate and we are less protected than we were. Perhaps we could have the observations of the Minister specifically on the issue of why there has been such a reduction in applications for extradition in recent weeks at Westminster magistrates’ court.

I welcome the committee’s scrutiny. I turn to that part of the report that deals with corporate hospitality, although it has been dealt with so adequately by the noble Lord, Lord Gold. The bottom line is that it is a matter of common sense, as he said—and I repeat that. Many years ago, my friend the late Sir Melvyn Rosser, one of the senior partners at Deloitte and a member of the Royal Commission on Standards of Conduct in Public Life, said that a possible yardstick of the measure of hospitality was that a bottle of whisky at Christmas might be permissible but certainly not a case of whisky at any time. The Bribery Act was never intended to prohibit reasonable and proportionate hospitality or other similar business expenditure. I do not go along with the committee’s attempt to get the Government to give clearer examples in the Ministry of Justice guidance. It is common sense at the beginning and the end, and no more advice is really needed.

With those brief words, I am conscious that I do not do justice to the committee’s hard work, which I commend, and I appreciate the forbearance of the House.

15:12

[Lord German (LD) [V]]

This is a very welcome report, and it is pleasing to note that the Act in itself is robust, and that most of the concerns expressed are related to the operation of the Act. Of course, this debate has been a long time coming, as noble Lords have said. Between its publication in March 2019 and the Government’s response in May 2019 and now, nearly two years later, a great deal of time has elapsed, and progress in our courts has been held up significantly by the pandemic. Looking at this in a positive way, this delayed debate provides an opportunity to review the report and the response by looking at what has changed over the intervening period since their publication.

I have the impression that at, about, or close to the period of publication, a major change of internal emphasis took place in the Serious Fraud Office. I got a sense of a clearing out, a refreshment, and a new approach to its work. This was very encouraging. However, I would be grateful if the Minister in reply could indicate whether my impression is born out of reality.

I note the report’s comments on how the SFO handled large amounts of documentation, which was a contributory factor to the long delays in producing outcomes to its investigations. For example, it talks of millions of documents being scrutinised in the course of the Rolls-Royce investigation. The reality is that data, by which I mean documents and digital information, will increase, not decrease. The report mentions the introduction of artificial intelligence as a means of aiding this scrutiny. That approach is essential, because the demand for better correlation of information and timeline creation, sometimes spanning multiple sources of information, will increase as the number of data sources increase. I would be grateful for an update from the Minister on how this challenge is being met. Does the Minister agree that this approach will be an important tool in the armoury of the SFO in dealing with the complexity of modern business activity? Much evidence will be in electronic form on a multitude of different platforms. Identifying and comparing strands of an investigation will be much enhanced by the use of AI.

The SFO evidence provided to the inquiry and the report itself raise the question of vicarious liability. That case has just been outlined by my noble friend Lord Stunell; the report does not rule it out but says that it is beyond its scope. The SFO, in supporting the case for this approach in its evidence, states:

“From a prosecutor’s point of view this lack of clarity”—


—that is, the identification principle approach—

“is a significant disadvantage in attributing corporate liability”,

and says that

“the clear principle of vicarious liability for criminal acts by employees acting for a company creates a much stronger enforcement regime.”

In response, the committee’s report states that this issue goes beyond offences under the Bribery Act. In view of that response, can the noble and learned Lord, Lord Saville, the chair of the committee, say whether he considers that a further investigation into that measure alone by the House of Lords would be appropriate, and whether he might consider recommending it to the House? It would also be important to understand the view of the Government in their response to this debate.

I turn to another matter that has arisen in the period between the publication and response to this report, which is the OECD Working Group on Bribery conclusions on the UK Government’s report on the follow-up to the phase 4 evaluation. The Government’s follow-up report was presented in March 2019, and the OECD gave its evaluation later that year. Many of the OECD recommendations have been fully or partially implemented, but there are several where no progress has been made, and where there is a read-across to the committee’s report.

There are two issues in the OECD report which are of particular concern. The working group welcomed the committee report’s recommendation that the Government should review the guidance to commercial organisations, but noted that

“no steps have yet been taken to address the Working Group’s Phase 4 recommendations in this respect”.

Those OECD recommendations in 2017 preceded the committee report that we are now considering. I would be grateful for the Government’s response to this matter, given the time that has elapsed.

The second issue relates to the independence of investigation and prosecution of foreign bribery and in particular the implementation and use of Shawcross exercises in foreign bribery cases. Taken alongside what noble Lords have previously talked about in terms of the European arrest warrant, could the Government say whether this matter has now been corrected or needs to be put right, and what deficiencies there are now in the system?

Finally, I turn to SMEs. The report outlines a number of recommendations on the approach to gifts and hospitality and on better guidance. The Government’s response to better guidance is that SMEs could find information on bribery on the Government’s web pages or by phoning a helpline. So they say that the information is there, if you want to look for it. But above all SMEs need to be aware of the issue, because you cannot look for things that you do not know exist. There is certainly room for a more systematic approach to awareness raising, and the Government as yet seem to have not taken the opportunity to take this forward. This is crucial if we are to encourage more and more companies to look for export opportunities across the globe.

Awareness-raising can follow a wide range of routes, but the Government need to address this matter urgently. The committee witness who said that you cannot take someone out to dinner without committing a crime exemplifies the need for a balanced and understood approach to these matters. As the report states, corporate hospitality is a necessary and legitimate part of doing business. The Government must do more to raise awareness of that balance—

[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

My Lords, I reinforce the point that the time limit for speeches is six minutes.

15:19

[Lord Empey (UUP) [V]]

My Lords, I begin by thanking the noble and learned Lord, Lord Saville of Newdigate, for his chairmanship, which it was a pleasure to serve under throughout this report. I also extend my thanks to the clerk and the staff of the committee, who served us extremely well, dealing with voluminous amounts of evidence that came in throughout the inquiry.

If I had one impression from the committee, it was that perhaps we were looking at the issue a little earlier than might have been appropriate given that it takes a long time for a piece of legislation like this to drill down to the actual business on the ground. However, I would have to say that we are not unique in having a report debated here 18 months to two years after we published it. Earlier this week I attended Grand Committee when the noble Lord, Lord Howell of Guildford, was making a report on the Pacific Alliance, and that was 18 months old as well, so we are not in any way unique.

It was encouraging to hear that by and large the legislation was working, and it was also good to hear that the United Kingdom has a relatively good reputation internationally on its approach to bribery. However, as the noble Lord, Lord Stunell, pointed out, that was the position nearly two years ago, and obviously it has changed. I hope that that is not permanent. I also note that I watched an interview last night with Senator Menendez of the US Senate, during which Russia and what was happening in the Navalny case came up. A throwaway remark was made that London was awash with Russian money, we were very soft on dealing with money laundering, and so on. One has to be aware that our reputation is under scrutiny by the world, and questions need to be answered about how we approach large sums of money which seem to come without any clear evidence of how they were earned.

The other issue that has perplexed me somewhat has been the balance between small and medium-sized enterprises and the large corporates. While our recommendations are as they are, one still has a feeling, as the noble Lord, Lord German, pointed out a few moments ago, that the person running a small business, up a lane in a garage somewhere, would not necessarily have the grasp of the issues that a large corporate has, which can afford to employ expert legal advice and have people to deputise. That needs to be watched very carefully. We need to push the SME sector to export, and the biggest fear it has is not so much getting sucked into bribery but not getting paid for its products in a foreign market. That needs to be taken into account.

The other issue that we touched on was how this matter will be continuously kept under the eyes of government and Parliament. There is, or was at the time, a parliamentary advocate, who I think was John Penrose MP, and we were a bit concerned that a Back-Bencher might not necessarily be the right person to promote the whole concept of keeping bribery under control.

I would also like to raise one another matter, which perhaps the Minister could address in summing up—no one would be better qualified. We took evidence from Scotland; of course we know that Scotland has a different law and has had for centuries. One issue that came up was whether there was a risk that the law in Scotland could become sufficiently different from the law in the rest of the United Kingdom that we could allow a loophole to develop whereby location of a business in one part of the United Kingdom would leave it less vulnerable to charges under the Bribery Act than if it was located in another. I would appreciate it if the Minister could address that in his summing up. While we were satisfied that it was adequate and equivalent in current circumstances, that may not necessarily be the case in future. Could that particular matter be kept under review?

15:25

[Lord Hodgson of Astley Abbotts (Con) [V]]

My Lords, I too was a member of this committee and I enjoyed serving under the chairmanship of the noble and learned Lord, Lord Saville of Newdigate. Like my noble friend Lord Empey, I also pay tribute to our excellent staff, marshalled expertly by Michael Collon. I chaired a different committee which Michael was clerk to, and so I spoke to him just before Christmas and found that he was retiring from the House on 31 December last. I am sure that I speak for the committee and indeed the whole House when I wish him on behalf of all of us a very happy retirement. I expect that he may well have tuned in to watch this debate this afternoon.

In my remarks I will focus on just three points: the position of SMEs in relation to the Bribery Act; the role of the Government’s anti-corruption champion; and finally, like several other noble Lords, including my noble friend Lord Gold, I shall urge the Government to reach a decision on the widening of the “failure to prevent” offence. These three points need to be considered in the context of the overall conclusion of our report, which is, as our chairman said in his opening remarks, that the Act is an excellent piece of legislation.

First, on the SMEs, it is important that the Government always remember how narrow the management bandwidth inevitably is. Unlike big companies, they cannot double-bank roles. Management time is a precious and scarce commodity. It is therefore critical that decisions on whether to prosecute are taken promptly. To have a sword of Damocles hanging over an SME will, if not paralyse it, certainly render it much less effective. Therefore we were not impressed by the slow pace of progress by investigations of these cases. Most disturbing was the stop-start nature of many of them. Interviews would take place followed by long periods of silence: 12, 15 or 18 months, we were told in the evidence we received.

The Government’s reply to this at paragraph 17 in their response document was that progress was being made, and they prayed in aid that now all preceding cases over two years old will be given special treatment to speed the decision. Two years of uncertainty is a quite unacceptable burden on any company, but particularly on a smaller one, where ownership and management may well be combined. SMEs whose business is focused particularly on exports have, of course, to face the grey area of corporate hospitality, and it would be good to know what progress has been made in fulfilling the pledges made in paragraphs 73 to 75 of that document. Overall, one was left, as other noble Lords have said remarked, with an underlying suspicion that SMEs could be seen as a happier hunting ground for prosecutors. The directing mind principle, referred to by the noble Baroness, Lady Bowles, the inevitably less well-resourced defence and the pressure on small management claims to clear up and move on will all be factors that may lead prosecutors to see an opportunity to make an example. In the Skansen Interiors case, which we examined in some detail, it was interesting that it was not even offered the opportunity of a deferred prosecution agreement.

The next point I want to make concerns an update from my noble and learned friend on the Front Bench on the role of the Government’s anti-corruption champion. I make it clear at the outset that I am not in any way attacking John Penrose MP, who currently holds that position. He is in an unenviable and probably impossible position. In that old country phrase, he is set to get most of the kicks and none of the ha’p’orth. His role seems to be a token nod towards the importance that the Government place on anti-corruption activities, and he appears to have neither the clout nor the resources to be able to carry out the detailed investigations or effect real change. Indeed, until July last year, Mr Penrose was combining the role with that of a Minister of State in the Northern Ireland office.

When my noble and learned friend comes to wind up, can he lift the curtain on the Government’s policy objectives for this post? What is its budget, what staff does it have and to whom does the anti-corruption champion report? What practical results can the Government point to? It is interesting that, if you do a Google search, one of the only entries on the website is Mr Penrose’s appearance before our committee on 10 July 2018.

I return to the issue of Section 7 on failure to prevent, which is seen, as many noble Lords have said, as one of the key parts that drives against corruption and which has proved pretty successful. The Government have taken an inordinately long time to reach a decision as to whether the scope of this offence should be widened to cover economic crime generally. The original consultation paper was issued by the MoJ in January 2017 and the consultation closed at the end of March that year. Now, four years later, we are still awaiting a decision. Can my noble and learned friend please give us a heads-up on the latest position on this when he replies?

15:31

[Lord Woolf (CB) [V]]

My Lords, it is a pleasure to speak on this matter. I do so from a different perspective to the earlier speakers from whom we have heard so far. I say first that, in my view, the Act was undoubtedly the most constructive and sorely needed legislation of which I am aware. It has played an important role in promoting higher standards of ethical conduct in global companies internationally and has helped to make the concept of the “responsible capitalist” a reality.

Having said that, I should disclose that I make those remarks as a result of experience I had before the Act that we are considering came into force. In 2008, I became the chairman of a committee that delivered a report on business ethics in global companies and, in particular, the defence industry, based on the conduct of one company, BAE Systems, one of the world’s largest global defence contractors. In addition, I was for 10 years chairman of the judges of FIRST magazine’s competition to identify the responsible capitalist of the year—a task now performed by my noble and learned friend Lord Judge.

I mention my impressions on the basis of ancient experience because it is important that we should realise that great progress has been made. In our comments today, we must recognise that the criminal justice system in this country is facing probably the biggest challenge that it has faced since the last war. The number of cases outstanding is horrific. Any changes that we would like to promote before the Minister must take place against the reality of that background. A terrible danger exists now of injustice being caused by delay. The remarks from the noble Lord, Lord Hodgson, about SMEs having a sword of Damocles hanging over them should certainly be taken into account.

The reality is that the capacity of the system to expedite more cases that could take a long time to investigate is limited at the present time. Certainly, what has been suggested about further reports in the future should be paid attention. With great diffidence, I suggest that the help that has been given now could be of double value if it were to be given once the present situation of arrears in dealing with criminal cases is not as pressing as I have suggested it is.

In 2008, it was thought that legislation of the sort that was concluded in the 2010 Act would tie the hands of British companies internationally. I am very pleased to know that, in fact, that has not been the consequence. We thought that being a responsible company was becoming more and more important and, therefore, it was vital to make clear that there was some sanction.

I note that there has been no comment so far this afternoon about consent being required. I thought that that might be a matter that would cause concern—though I was not sure why it would cause concern, because the consent that is required now is from the very people who would be responsible for prosecutions if they take place. They presumably will be the best watchdogs over this situation. Of course, they must have—as had been pointed out already—the resources to go into matters of this sort in so far as can be practical, which is very limited at present.

There has been talk also of deferred prosecutions. DPAs are making very slow entry into our criminal justice system. Our Act overtook the law in the United States, but, in the United States, much greater use is made of facilities of that nature. It is obviously the sensible way to deal with acts of corruption. Nothing will influence the directors of companies—no matter what their size—more than if the punishment is on the company’s finances. For that reason, it is important that it takes place.

15:38

[Lord McNally (LD) [V]]

My Lords, it is always an honour and pleasure to follow the noble and learned Lord, Lord Woolf, with all his wisdom and experience.

On 13 May 2010, I became Minster of State for Justice in the coalition Government, as deputy to the noble and learned Lord, Lord Clarke of Nottingham, who was then Secretary of State for Justice and Lord Chancellor. In my in-tray when I arrived at the department was a gift from the departing Labour Government in the shape of the Bribery Act. The noble Lord, Lord Bach, had done much of the heavy lifting in this House in delivering the Bill to the statute book and had been supported from these Benches by the late and sadly missed Lord Goodhart and my noble friend Lord Thomas of Gresford who, happily, is with us today and from whom we will hear later.

It is perhaps not surprising that those who opposed the Act saw the change of Government as an opportunity to push back on bringing the Act into force. This meant a delay in implementation, for which we were criticised at the time. The Secretary of State and I carried out a consultation with a variety of interested parties. We heard all the familiar objections: how burdensome it would be on business, particularly SMEs; how it would inhibit the use of legitimate corporate hospitality; how many grey areas there were between a tip and a bribe; and, of course, the plea that we would lose out to the dastardly French, who would steal all our business by ignoring such Anglo-Saxon sensitivities to the greasing of palms.

That second round of consultation by the incoming Government emphasised the cross-party support for the legislation and its greater acceptance. We took the flak about the delay, and the Act reached commencement on 1 July 2011. I took some satisfaction from reading in the Select Committee’s report that it had received no “major” criticisms of the legislation and that, overall,

“the structure of the Act, the offences it created, its deterrent effect, and its interaction with deferred prosecution agreements, are only some of the aspects which have been almost universally praised”.

We are entitled to ask whether the Conservative Government elected in 2019 would have been as willing as the coalition to pick up the Bribery Act and guide it to commencement. The noble Lord, Lord Hodgson, asked some pertinent questions about the role of the anti-corruption champion and rightly questioned whether the Government have the stomach for the fight against bribery. This is, after all, the Government who champion the global buccaneers who will swashbuckle their way around the world with scant regard for the niceties and who are only too willing to act as money launderers to the world, as the noble Lords, Lord Hain and Lord Empey, pointed out.

So we will listen carefully to the Minister’s response. The Committee has rightly pointed to the slow progress of bribery investigations and prosecutions and rightly asks how the Government intend to bring a sense of urgency to implementation and enforcement. It is encouraging that in Transparency International’s 2020 report, Exporting Corruption, the UK is one of only four countries, along with the USA, Switzerland and Israel, cited as active enforcers of anti-bribery measures, but the report also finds that active enforcement has fallen off since 2018 and there is real danger of us falling out of the top group—as my noble friend Lord Stunell indicated. Key to avoiding that slide will be ensuring the availability of funding for the Serious Fraud Office to pursue serious cases and ending the delay in bringing forward prosecutions.

There is also the general responsibility to prevent economic crime. The review that we are considering today states that

“the new offence of corporate failure to prevent bribery is regarded as particularly effective”,

and Transparency International UK has called for the Government to extend the “failure to prevent” approach used in Section 7 of the Bribery Act to corporate criminal offending in economic crimes such as fraud and money laundering—I was pleased to see the noble Lords, Lord Hodgson and Lord Gold, lend their weight to that, as well as my noble friend Lord Stunell.

Bribery is often seen as a victimless crime where one man’s bribe is simply another’s facilitation of the wheels of commerce. It is not. It is corrupting to both ends of the transaction. It distorts the benefits of the free market by preventing the best product or service being provided for the best price. It diverts resources from the needy to the criminal and inflates the cost of development. The Select Committee is in our debt for pointing the Government in the right direction in updating the Bribery Act for the new circumstances we face in the decades ahead. We are grateful to the noble and learned Lord, Lord Saville, and his colleagues for their work.

15:43

[Lord Rogan (UUP) [V]]

My Lords, I welcome the Select Committee’s report and commend its members for their sterling work in producing it, especially and including my noble friend Lord Empey.

One of the great privileges of serving in your Lordships’ House is the sheer volume of knowledge and expertise that we possess as a collective body. We are also not known for giving compliments lightly, particularly when it comes to our primary role of scrutinising legislation from the Government of the day. It is therefore noteworthy that the Select Committee report describes the Bribery Act 2010 as

“an excellent piece of legislation which creates offences which are clear and all-embracing”.

To be fair, Ministers did have quite a bit of time to give proper consideration to its provisions, since the Bribery Act received Royal Assent 121 years after the first attempt to put the common law offence of bribery on to a statutory footing. However, coming eight years after the Act became law, the Select Committee report makes it clear that the wait was worth it and that the legislation can now rightly claim to stand as an example to the rest of the world on how to combat bribery.

Of course, there is always room for improvement in an ever-changing world. The report offers some helpful suggestions on how the Act’s measures might be made even more effective. I echo the comments and suggestions made by the noble Lords, Lord German and Lord Empey, regarding SMEs.

Over some 40 years as an owner and director of several Ulster SMEs, I have been fortunate to experience many different countries and diverse cultures in my commercial working life. I welcome in particular the Select Committee’s recommendation that Her Majesty’s Government provide UK companies with support on corruption issues in countries to which they either currently or expect to export, and on the business norms and culture in countries where they currently operate. The report adds that such support should be provided by properly trained officials and that smaller embassies should have at least one official who is an expert in local customs or cultures who can contact officials of foreign government departments on behalf of companies facing problems in this field. In its formal response to the Select Committee’s report in May 2019, the Ministry of Justice, to its credit, endorsed these helpful suggestions.

The ministry’s response also stated:

“The DFID-funded Business Integrity Initiative … is currently undertaking pilot work in Kenya, Mexico and Pakistan”—


countries in which I have done business—

“… to identify appropriate ways to support UK companies operating in these markets and … provide new guidance and tools for staff in post.”

It further stated that

“as evidence from the … pilot emerges, DIT will consider how to include business integrity work in its future activity”.

I would be grateful if the Minister could update the Committee on the progress of this pilot. What lessons have been learned and what measures have since been introduced as a result of the knowledge gained?

Those of us who supported Brexit were promised that it would allow the UK business community to access new markets in all parts of the world that were previously either fully out of reach or difficult to get into. I hope that those commitments still ring true. If Brexit is to be the success that we all hope it will be, no matter which stance noble Lords took in relation to the referendum, it is critical that UK businesses are given proper, professional advice and guidance about those markets with which they may not be sufficiently familiar. The Select Committee in its excellent report has clearly identified this need. Once again, I commend it for its work.

15:48

[Baroness Fookes (Con) [V]]

My Lords, when I joined the committee, I had had no previous experience of post-legislative scrutiny. I came away from it greatly impressed by the value of this form of consideration. As we have had ample evidence of this afternoon, the House of Lords seems brilliantly equipped to undertake such inquiries. Having listened to many other speakers, it seems to me that there would be definite value in resurrecting this process in another five years or so to see how matters have developed. It is clear that the Act itself is remarkably good legislation, but how it is implemented and develops seems worthy of consideration further down the line.

One point that concerned me during our taking of evidence was the reluctance of small and medium-sized companies to give evidence in public. I can understand that, but it left a slight gap in the knowledge that we wanted to obtain, but I suppose that is water under bridge.

I turn now to the question of facilitation payments, referred to earlier in the debate. This does not have the spurious glamour, of course, of enormous companies doing bribery and corruption on a grand scale; nevertheless, they can have a very damaging effect on small companies seeking to open enterprises abroad. I had direct experience of this some years ago, when two friends of mine wanted to set up a very small enterprise in an Asian country. They kept meeting enormous obstacles, from their point of view. They never knew whether the rules they thought had obeyed would suddenly be changed and a little payment would be required. In the end, because they were so keen, they won through, but I am certain that many small enterprises would not continue to the end, and that is a great pity.

I had experience of this myself. To my astonishment, they needed the signature of a local official on some final piece of paper before they could set up in business. I was taken up six flights in great heat, where we were received by the said official, and when a large bottle of whiskey was handed over, the document was signed. Slightly later in the afternoon, when he said that he was going to take us out for lunch, we found that my friends were actually paying for lunch for this chap and his cronies. He actually had the gall to say, very proudly, that there was no corruption in his neck of the woods, so I suspect that this kind of thing is pretty pervasive and very difficult to deal with.

That is why I so applaud the point made by the noble Lord, Lord Rogan, I think—or one of our number—who spoke about the role of embassies in helping small and medium-sized companies with this kind of problem. It is not simply that the staff should have expertise, it is also important that they actually go out and talk to local officialdom to try to get them onside. It is clearly very difficult for one small company to get anything done, but if it can rely upon embassy staff to have much greater clout, this would be considerably helpful. I commend this and I want to know from the Minister how many people have this expertise in the various embassies, and how much work they are doing. That is extremely important.

Turning closer to home, I am also concerned that there are not sufficient people with real expertise and understanding of the very complicated nature of crime and corruption, which is so widespread even now. So, I was very disappointed when one of our recommendations, that the City of London Police’s Economic Crime Academy should be given additional resources, was rejected. We also recommended that every police force should have at least one senior officer with specialist training in dealing with bribery and corruption. I should be very interested to know whether this has come about and, if not, why not. It has unfortunately been, as has been said, some time since the report was published. I hope the Minister will be able to tell us what other actions the Government have taken since to deal with the particular problems that we raised, so that we can be assured that the Bribery Act, so excellent in itself, is fully implemented.

15:54

[Baroness Wheatcroft (CB) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady Fookes, who, after more than 50 years of continuous service in Parliament, is deserving of everyone’s attention when she speaks. I also thank the committee for its work in producing this report and the noble and learned Lord, Lord Saville of Newdigate, for his introduction to this afternoon’s proceedings. Given the believed scale of bribery on the international stage, either the Act is proving incredibly successful and, as the noble Lord, Lord Gold, said, frightening many companies into honesty, or bribery is going undetected.

As the report points out, bribery is a crime that is generally detected only when it goes wrong. I was therefore concerned by the comment in the report that suspicious activity reports have very little follow-up. Companies know when competitors seem to be enjoying disproportionate success: if they report suspicious activity, that report should be followed up. Will the Minister comment on how the follow-up of suspicious activity reports could be improved? If that were done, perhaps we would see more cases of bribery come to court.

The committee’s report was largely positive about the way the Bribery Act is working. It welcomed the refusal to allow facilitation payments, and I concede that while this can disadvantage British business in many markets, it is impossible to be, as the noble and learned Lord, Lord Mackay, once said, “a little bit pregnant”. Facilitation payments are bribery, however common they may be in some countries, so this country is right to rule out bribery of any kind—unlike the United States, for instance. I also agree with the committee’s endorsement of deferred prosecution agreements. It seems that these are proving effective in persuading companies to own up to partial failings and improve standards for the future, while not preventing prosecution of individuals.

The aspect of this report on which I shall concentrate my remaining remarks is that of vicarious liability for companies. The noble Baroness, Lady Bowles, was eloquent in her criticism of the way prosecutions for bribery have hit the small business sector rather than the large. The issue is that of the identification principle: that the controlling minds of the company do not have mens rea. I listened with interest to the noble Lord, Lord Stunell, as he drew his analogy with a captain escaping all liability as his ship went down. I share his discomfort with this situation.

The committee made no recommendation on the issue of vicarious liability, but neither did it rule it out. It was looking towards the report of the committee the Government had already established to examine corporate liability for economic crime. Indeed, when the Government published their response to this Select Committee report, in May 2019, they said that the issue of vicarious responsibility was under review, and their response would be issued “shortly”. That was in May 2019. “Shortly”, turned out to be 18 months later and, after such lengthy deliberation, the Government concluded that the call for evidence on corporate criminal liability was inconclusive. They therefore proposed to ask the Law Commission to examine the issue and report on the options by late 2021. By any standards, this looks like kicking a difficult issue into the long grass.

However, the evidence was not in everyone’s view inconclusive. Three-quarters of respondents to the call for evidence agreed that the identification doctrine inhibited holding companies to account for all economic crimes. The noble Lord, Lord German, called, earlier this afternoon, for a new Select Committee report into vicarious liability—I would be very interested to hear the Minister’s response to that. I would also like to hear his view on why there has been such reluctance to address the issue of vicarious liability, when it is quite clear that larger companies are not being held to account in the way that smaller companies are, because the people at the top are able to dodge the issue.

Finally, I raise again, as have others, the issue of the Government’s anti-corruption champion. This is not, by any standards, a high-profile position. Will the Minister tell the Committee whether the current incumbent, John Penrose MP, needs greater powers if he is to be an effective champion of anti-corruption, both in government and in business, as his job description says?

16:00

[Lord Bhatia (Non-Afl) [V]]

My Lords, in November 2009, the then Bribery Bill was introduced in the House of Lords. Its purpose was to reform and update bribery and corruption legislation. This included creating offences for offering, promising or giving an advantage—bribing another person—and requesting, accepting or agreeing to receive an advantage: being bribed. Both offences carry the same maximum penalty of 10 years’ imprisonment and/or a limited fine for individuals, with offences relating to commercial organisations carrying a maximum penalty of a limited fine. In addition to the UK, the jurisdiction scope of these offences covers those which took place either partly or entirely outside the UK, providing that the alleged perpetrator of the offence is a British citizen or is considered to have close connections to the UK.

On 17 May 2018, the House of Lords Select Committee on the Bribery Act 2010 was established to conduct a post-legislative review of the legislation. The House of Lords recommended that the committee focus on several areas around bribery, including whether the Act has led to stricter prosecution of corruption conduct or a higher conviction rate in the reduction of such conduct. Can the Minister state whether the directors of commercial organisations can be imprisoned instead of the company paying the higher fine?

16:02

[Lord Bradshaw (LD) [V]]

My Lords, I was not a member of the committee, so I have had to rely on reading the documentation provided. On reflection, the revision down the line that the noble Baroness, Lady Fookes, called for is probably necessary, because a lot of issues have been placed before the Grand Committee today. The reputation of the country for honesty and straight dealing is not improving; anybody who thinks so is probably deluding themselves. It is important, however, that our reputation is restored; we should not be complacent when we are told in debate that we are slipping down the world’s league tables.

The issue of what is to succeed the European arrest warrant is very important. There are criminals waiting to come here in the knowledge that they will probably be beyond the reach of the law. The problems in the court system to which the noble and learned Lord, Lord Woolf, referred are a scourge on the country. The fact that a criminal trial cannot now be arranged in less than about two years is a real indictment, because justice delayed is justice denied.

However, I want to speak particularly about the police service, of which I have experience. To train police officers to deal with issues such as fraud—you can choose anything you like; child abuse is another one—is a long-term commitment. Such officers are very attractive to other people who would seek to employ them. It is important that we take seriously the recommendation that the police service—particularly the City of London Police service but all other police services as well—have people trained to look out for all sorts of corruption.

There are large problems about money laundering, and the issue of vicarious liability needs attention. I understand the mens rea issues, and I certainly agree with my noble friend Lord Stunell that if the ship goes down, it is really quite regrettable if nobody above the rank of, as it were, able seaman gets prosecuted. People look to people being prosecuted where they have done wrong.

I would also like to encourage the use of DPAs to encourage people to own up if they find that wrong has been done, not necessarily by the directors of a company but by somebody within it. Finally, when the Minister sums up, will he tell us how much time John Penrose is devoting to his role as anti-corruption champion? It seems to be an almost invisible role.

16:06

[Lord Naseby (Con) [V]]

My Lords, it is my privilege to read this—

[The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)]

The noble Lord is very quiet; could he lean closer to the microphone?

[Lord Naseby (Con) [V]]

Is that better? It will have to be.

I looked at this report, not because I was on the committee—I was not—but from the aspect of exporting. I have been involved in exporting all my life since leaving Cambridge with a decent degree in economics and having had the privilege to listen to the lectures of Professor Walt Rostow on his stages of growth. I lived in India and Sri Lanka in the mid-1960s, working for the Reckitt and Colman group as a marketing manager. In the 1960s, I wrote a pamphlet called Helping the Exporter with one of our colleagues, my noble friend Lord Vinson. On entering Parliament, I joined the All-Party India Group and the All-Party Pakistan Group, and started the All-Party Sri Lanka Group. Later on, I started the All-Party Maldives Group. In the following years, I travelled and had negotiations and discussions with the rest of south-east Asia, particularly Singapore, Malaysia and Indonesia, which I continue to do.

I congratulate the committee on the depth of its analysis. The Government’s responses are clear in what the response is but lacking, as I will indicate in a few seconds. It is a great pity that a work of this nature gets so little reporting in the major national press, particularly the Financial Times and other business publications. I urge the House authorities to get a grip on this issue; it is not a new issue but it needs to be attended to.

I will focus my comments on small and medium-sized companies. They are vital to our future as a country and are experienced in the sense that many of them take part in trade visits, usually underwritten or promoted or organised by the relevant chambers of commerce. The ones that I think about are, obviously—I was an MP for the East Midlands—the Leicester and Northampton chambers, which are very active, and many others.

For those chambers of commerce—and I have discussed this with the current people—as small and medium companies, the comment that they make is on focus. First, they do not think that our embassies or high commissions, when they go out and visit whatever company they choose to go to, are well enough briefed. I concur with that, as I travel to that part of the world and, in my judgment, Her Majesty’s Government now need to get a grip on it. Every embassy and high commission should have somebody very senior who is totally responsible for trade and development—and, within that, for how people should operate in the context of the country where they serve. Our people representing us on the ground need to be fully briefed on the Bribery Act and the implications for companies that come to seek their advice. Frankly, that is not happening, and it is time that we got a grip on it.

Secondly, the UK has good trade associations, which brief us politicians well when we talk about particular subject matters, and Her Majesty’s Government should provide specialist courses for them, covering all aspects of exporting—like the ECGD, which I have worked with—particularly, in the context of this debate, on the implications of the Bribery Act. It would be no bad thing if the chief executives of trade associations were brought into the government departments and given proper briefs and some structure to it all. Ideally, they could use a business school to help in this project.

Thirdly, small and medium companies are very important, but their management structures for exporting are likely largely to consist of an export team with an export director or manager with the involvement of the chief executive. These are busy people and, again, the department needs to make simple, short and efficient courses for export directors and managers—not just online and not just saying that something has been posted in some note somewhere, which they have to find. They need something good and easy and a helpline managed by an experienced official, not somebody who just reroutes them somewhere else. I realise that, with Covid and so many staff working from home, it is not easy, but it has to be addressed—and, in my judgment, all those involved in exporting need to come into the office at least once a week.

The department has been seeking collaborative approval on export advice since May 2019. What came out of the pilot scheme? That is so important.

I conclude with two comments. First, the City of London Police get 2% of the police budget but at least 25% of fraud crimes, so they need a bit more money to see that through. Finally, I wholeheartedly support the comments made by the noble Lord, Lord German.

16:13

[Lord Hope of Craighead (CB) [V]]

My Lords, I very much welcome this report, and congratulate warmly all those who have contributed to it. As it happens, I was a member of the Liaison Committee when it considered on two occasions whether to recommend this Act for post-legislative scrutiny. On each occasion there were a number of other statutes on our list, and we could recommend only one of them. I was glad that on the second occasion my suggestion that this Act should be put forward for scrutiny was agreed to, and I am very pleased with the result.

One concern that we had on the Liaison Committee was whether UK businesses were being put at a competitive disadvantage by the standards set by this legislation in obtaining foreign contracts, a point made by the noble Lord, Lord Gold. I recall similar concerns being expressed at a conference that I attended in Hong Kong shortly after the Act was brought into force. Corporate hospitality and facilitation payments were mentioned as areas of particular difficulty. I was particularly pleased to read that, of the 100 witnesses from whom the committee received evidence, not one had any major criticisms of the Act, and its structure and the offences that it created were almost universally praised. Comments that were quoted were remarkably positive in their support. I take from all of this that, by and large, the warnings given at the outset—I suspect to try to undermine what this Act stands for—have not been borne out by experience. That is very good news.

I shall comment briefly on what the report has to say about Scotland. Questions of policy are, of course, for the Scottish Ministers. Nevertheless, I welcome that fact that the committee took the trouble to examine the position in Scotland as part of its scrutiny review. I am glad that the committee saw no reason for any change in the law and practice regulating the commencement of proceedings in Scotland. With the exception of private prosecutions, which are very rare, the golden rule in Scotland is that no prosecutions whatever can take place unless in the name or under the authority of the Lord Advocate. I recall having to point this out on several occasions during my time in the Crown Office as an advocate depute, to the great irritation of bodies such as the then Customs and Excise, which were used to handling these matters themselves in England. That is how the law works in Scotland, and it has long been recognised that there is no need to say anything about it in a UK statute.

I see great merit in the recommendation that the Secretary of State for Justice should amend the guidance published under Section 9 of the Act so that it deals adequately with the law and practice in Scotland, and that the websites in use on both sides of the border should be updated so that they each refer to both sets of guidance. As the guidance is for use in all parts of the United Kingdom, it is important that it should take account of the differences in law and practice there. I note, however, that no mention is made of Northern Ireland in this paragraph, nor indeed is Northern Ireland mentioned at all in the Ministry of Justice’s quick start guide. I hope that the Minister will feel able to suggest to the Secretary of State for Justice that he should look at the position in Northern Ireland too when he considers that recommendation.

As for what the committee says about civil settlements in Scotland—the alternative to the deferred prosecution system in England and Wales—I do not wish to take anything away at all from what my noble and learned friend Lord Saville said about this matter in his introduction. However, the differences between those two systems are perhaps less troublesome than the committee seems to have thought in commenting on the Scottish position. Take, for example, the suggestion that judicial supervision should be regarded as a vital element for the conduct of civil settlements in Scotland, which does not happen just now. This takes me back to the golden rule that I mentioned earlier. Another way of putting it is that the Lord Advocate is the “master of the instance” in Scotland; he is not subject to the direction of the courts as to whether a prosecution should be brought, and it is entirely up to him to decide whether or not to settle a case without resorting to prosecution and, if so, on what terms. Scotland does not have sentence bargaining, but agreements about pleas and settlements are within the discretion of the prosecutor. I doubt whether anyone in Scotland would want that system to brought under the supervision of the judges.

As to consistency, the lack of a statutory basis for the scheme does not trouble me, given the way in which these matters are handled by the Crown Office in Scotland, although a statutory basis would be needed for a financial penalty if this was thought appropriate. However, I see merit in the points made by the committee about the ways in which the scheme lacks transparency and the need to improve the quality of the information on the Crown Office website. I am sure that the Lord Advocate will pay close attention to what is said about this in the report.

Finally, I noted the remarks of the noble Lord, Lord Empey, and his concern about the differences that might emerge between the law and practice in Scotland and that in England, Wales and Northern Ireland in how the Act is administered. I doubt very much that that is a matter for real concern. The terms of the statute are perfectly clear and the prosecutors themselves are well aware of the need to maintain consistency throughout the United Kingdom in dealing with these important matters.

16:19

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, it is always a pleasure to follow the noble and learned Lord, Lord Hope of Craighead. I congratulate the chair of the committee, the noble and learned Lord, Lord Saville of Newdigate, on securing this debate, and congratulate him and his committee on a comprehensive report on the post-legislative scrutiny of the Bribery Act, for which the committee has had to wait nearly two years for the Government’s response. It is important that the Government use the powers within the Bribery Act effectively to tackle economic crime and the corrosive effect that corruption has on companies, individuals and society in general. This Act encourages companies to adopt honesty in all their dealings.

The committee wisely focused on several areas around bribery, including whether the Act had led to

“a stricter prosecution of corrupt conduct, a higher conviction rate and a reduction in such offending.”

It is remarkable and excellent that not one witness had major criticisms of the legislation. However, the report expressed concern at the slow pace of bribery investigations, with a number of witnesses criticising the time it had taken for bribery charges to be brought and for cases to reach trial.

What is also interesting is that companies were concerned about the potential for the legislation to be prejudicial to businesses in the operation of their work, but the committee found that this was not the case. The noble Lord, Lord Gold, referred to that today and in the article he published on his blog some time ago.

Recommendations dealt mainly with the implementation and enforcement of the Act, urging the director of the Serious Fraud Office and the DPP to speed up investigations into bribery and improve communications with those placed under investigation for bribery offences. The Government response centred on the committee’s concern surrounding the “slow pace” of bribery investigations, and they noted that several measures had been introduced within the specialist fraud division of the Crown Prosecution Service to

“ensure that cases progress effectively”.

That included bribery cases now having two allocated prosecutors, and legal managers being provided with weekly data on pre-charge cases, such as bribery, to ensure cases are regularly reviewed and progressed. How many cases have progressed to prosecution and conviction or release since these appointments, and how many are still awaiting trial and conviction? Has all this led to zero tolerance within companies and within the judicial system of bribery offences and economic crime? I also ask the Minister where the new Financial Services Act and the National Security and Investment Bill fit into the existing Bribery Act.

In response to the recommendation from the Committee regarding training and awareness of the act, the Government said there was not enough evidence to commit to providing additional resources to the City of London Police’s Economic Crime Academy to expand its training programme. The noble Lord, Lord Hain, asked about resources. What has happened since the publication of the Government’s response? Has there been a change of heart, and do they now intend to give resources to the Economic Crime Academy for training purposes?

On supporting companies on corruption issues in the countries to which they export, the Government said that DfID’s business integrative initiative was undertaking pilot work in Kenya, Mexico and Pakistan. According to the Government, the Bill aims to

“identify appropriate ways to support UK companies operating in these markets”

and will provide new guidance and tools to staff in these companies. Has this role been taken on by the FCDO with the dissolution of DfID? Has that new guidance been provided?

Many questions have been posed to the Minister, but we are undoubtedly better served by the operation of the Bribery Act and by the committee’s report and the Government’s response to it, all of which have enormous potential. The bottom line is that companies have no real choice but to enforce a stringent anti-corruption regime to minimise their risk of conviction and uphold proper standards of integrity and ethics in their business operations.

16:26

[Lord Thomas of Gresford (LD) [V]]

My Lords, as a member of the committee, I, too, pay tribute to the careful chairmanship of the noble and learned Lord, Lord Saville, and I thank Michael Collon and his staff and the expert advisers for all the hard work they put in.

Bribery is an offence which occurs in the shadows. It is a transaction which brings advantages to both parties, neither of whom can complain, whether satisfied or dissatisfied with the corrupt bargain. Its detection may well depend on a chance: an auditor stumbling on it in the course of an audit, a report from a whistleblower, or a complaint from a competitor. Nevertheless, like all corruption, it can be highly corrosive and potentially damaging. Even when the active agents are identified, the individual in the higher echelons of a corporate body who authorised or turned a blind eye to what was going on may still be too hard to pursue. Hence, it is justifiable to introduce the concept of corporate criminal responsibility, although the company itself is a legal person which can neither speak nor hear, much less form an intention.

I was involved in the pre-legislative committee prior to the passing of the Bribery Act in 2010. The policy which emerged was to create a climate in corporate business which would lead to the elimination of bribery altogether. One way of doing that would be, as my noble friend Lord Stunell argued, to make a corporate body vicariously liable for crimes committed by its employees or agents. But it could not be right to criminalise a company with absolute liability, and therefore there would have to be a right to a statutory defence—for example, that the company had taken all reasonable steps to prevent bribery and, once its existence were known, had not covered it up.

Of course, if there is sufficient evidence that the director or manager of a company—the captain on the bridge of the sinking ship—was complicit in bribery, “wilfully blind”, as my noble friend Lord Stunell said, or if he covered it up, he will be charged accordingly under Sections 1, 2 or 6 of the Act or with conspiracy.

For corporate criminal responsibility, however, it was thought preferable not to introduce vicarious criminal responsibility but to encourage a company to put in place systems of training and supervision and to frame the criminal offence as “failure to prevent bribery”. Thus, the company is not prosecuted and convicted vicariously for the bribery which its agent has committed. As an inanimate legal person, the company can have no knowledge of the offence, nor can the company be convicted positively of failing to have adequate procedures in place, whether or not bribery has been proved. An offence delineated in those terms would put the onus on the prosecution to prove that the company did not have adequate procedures.

Under Section 7 of the Act, the burden of proof is where it ought to be. If bribery has taken place on behalf of a company, the onus under Section 7 is on the company to show, as a defence to the charge that it failed to prevent it, that it had adequate procedures to prevent bribery in place. My noble friend Lady Bowles was concerned that the phrase “adequate procedures” is too low a bar for a defendant company to surmount. However, I am happy that the decision as to what is adequate is one for the jury, which imports the standards of the ordinary citizen, not the standards of the City.

The investigation carried out by the committee demonstrated that the architecture of the Bribery Act has been well conceived—a tribute to the noble Lord, Lord Bach, in fathering it, and to my noble friend Lord McNally in acting as its midwife. Its definition of what constitutes bribery and its use of the defence of adequate procedures are well received and applauded internationally. It is regarded as the gold standard. No significant legislative changes have been recommended.

Where concerns are expressed in the report, they refer to advice, delay in investigation, and resources. Guidance could be improved in important areas, such as facilitation payments. But the idea that the Government should set up an advice bureau to authorise the conduct of an individual or a company before a transaction takes place was rightly rejected by the committee. Nevertheless, consular services to advise on overseas trade customs and norms should be strengthened, as the noble Baroness, Lady Fookes, emphasised.

An unintended consequence of the Act was that corporate sponsoring of events took a hit: sporting and musical events in particular. It is a matter of balance and common sense, as both the noble Lord, Lord Gold, and the noble and learned Lord, Lord Morris, noted, which defies statutory definition. However, the committee concluded that guidance could be improved by the inclusion of examples to illustrate what is or is not acceptable. I am sure that that would be helpful.

On investigations, the report points to the fact that only 12 out of 45 police forces had taken advantage of specialist training in the Bribery Act, and it recommended that a senior specialist investigator trained in the provisions of the Act should be employed in each of the 45 forces. As my noble friend Lord Bradshaw said, training is a long-term commitment. Can the Minister tell us whether this recommendation has as yet been taken up?

When guilt in a case against a corporate body depends on whether it has employed adequate procedures, the field to be covered will be much larger than establishing the mere fact of an incident of bribery. The report calls for investment in artificial intelligence, document sifting and similar modern technologies which can handle what have been in some of the cases millions of documents. Like my noble friend Lord German, I would welcome the Minister’s report on the Government’s up-to-date position on greater investment in these areas.

DPAs have been a success under strict judicial control. However, I underline the one concern of the noble and learned Lord, Lord Saville. In all criminal proceedings, lesser sentences encourage pleas of guilty; defence counsel always brings this to the attention of a defendant at the earliest moment. Self-reporting should similarly lead to similar discounts otherwise there is no benefit in self-reporting. I do not propose to debate whether the concerns expressed about co-operation in criminal investigations with the EU after Brexit have been met by the trade and security agreement, save to say that they manifestly have not. But that is surely for another day.

I hope that the work of the committee and the report it has produced has given direction to the investigators and prosecutors of bribery. I hope it also gives confidence to the business community that there is in place an effective weapon against bribery, and that it has encouraged the climate of honest and successful business that was intended without being too onerous a burden of time and cost, despite the many naysayers, to whom the noble and learned Lord, Lord Hope, and my noble friend Lord McNally referred. My noble friend Lord Bradshaw referred to the UK slipping down the league table, and money laundering is a real issue. However, in the field of bribery, this Act has served to uphold our reputation for fair dealing across the world and, as the noble and learned Lord, Lord Hope, said, without commercial disadvantage.

16:35

[Lord Davidson of Glen Clova (Lab) [V]]

My Lords, I declare an interest as a Queen’s Counsel in practice in Scotland, whose work from time to time involves cases where the Bribery Act is required to be considered, and as a former Advocate-General in post at the time of the Act’s introduction. I also take this opportunity to congratulate the Minister on his appointment as Advocate-General, to which he brings not only his considerable professional ability but a calm and measured approach.

The noble and learned Lord, Lord Saville of Newdigate, and the committee, are to be complimented on this excellent review of the Bribery Act, as other noble Lords have observed. It is gratifying that the Act, introduced by the then Labour Government, is now so well regarded by so many. It is fair to say that it received a considerable amount of criticism as being a shackle on British international business at its introduction—a point that was observed by the noble Lords, Lord Gold and Lord McNally, and which was picked up by the noble and learned Lord, Lord Hope of Craighead.

The committee notes that there have been a number of positive assessments of the Act which chime with the general view of the it as broadly perceived. The noble and learned Lord, Lord Woolf, added his weighty and positive commendation, followed by the noble Baroness, Lady Ritchie, with her eloquent commendation.

The range of topics covered by the committee’s report is extensive, so I will confine myself to only a few matters. The first of these arises not from the Act but is scrutinised by the committee: the success of deferred prosecution agreements. I share the commendation of the noble and learned Lord, Lord Morris, of the noble and learned Lord, Lord Garnier, for having pushed this innovation forward. Similarly, Sir David Green, as former director of the Serious Fraud Office, can be congratulated on putting the DPA into practice very effectively. While it is not unknown for the SFO to be criticised, it should be given considerable credit, as the noble Lord, Lord German, observed, for its innovatory use of artificial intelligence in the Rolls-Royce case, identified by the committee at paragraph 72. What might have taken many months if not years of document analysis was reduced to weeks and greatly accelerated the resolution of a highly complex case. It is encouraging to see that the SFO is now deploying AI-powered analysis across its new casework and embracing new technology ahead of many in the private sector.

One specialist in bribery law, Eoin O’Shea, now at CMS, who gave evidence to the committee and who is a supporter of the Act, has commented that DPAs may reduce the opportunity for senior courts to grapple with the key concepts from the legislation: for example, the defence of adequate procedures. Is the Minister able to say whether the statutory guidance will be amended to equiparate “adequate” to the familiar “reasonable in the circumstances” approach, as the committee and the noble Baroness, Lady Bowles, emphasised?

What may be less encouraging are the observations made by the committee on the corresponding Scottish regime to DPAs. Most Scots lawyers would be opposed to a proposition that Scots law should always copy the laws and procedures of the southern jurisdiction. However, the committee raises some clear and forceful criticisms of the civil settlement regime in Scotland.

I note that the government response identifies that some but not all of these criticisms have been addressed. Having been a Scottish Solicitor-General some two decades ago, I was conscious of a then somewhat overdeveloped resistance to transparency in the Crown Office. I had assumed that that resistance might have reduced substantially by now.

The noble and learned Lord, Lord Hope, sees little problem in the absence of judicial oversight of civil settlement, but is the Minister aware what reasoning lay behind the unwillingness of the Scottish Government to adopt judicial oversight of civil settlement? One might expect, given the international dimension of most bribery offences, that jurisdictional differences might be thought somewhat undesirable in this area, given that it applies a UK statute. I echo the concern of the noble Lord, Lord Empey.

One further criticism that is levelled regarding the Act in practice is the paucity of prosecutions. One immediately understands the difficulty in gathering reliable evidence and carrying forward the question of resources, a matter that my noble friend Lord Hain stressed as an important requirement. My noble and learned friend Lord Morris also identified this, as did the noble Baroness, Lady Fookes, and the noble Lord, Lord Bradshaw. Bribery is, by its very nature, covert—in the shadows, as the noble Lord, Lord Thomas, put it, with perpetrators often taking steps to disguise the crime as innocent activity. What can be less easy to understand is the absence of prosecution when, in civil proceedings, bribery has been uncovered and held by the court to have occurred to the civil standard with a high level of confidence. It is unclear how often this situation arises, but anecdotes suggest it has arisen from time to time. Perhaps the Minister may even have encountered this problem in his own practice. This is a variation on the point made by the noble Lord, Lord Gold, about DPAs and the lack of individual prosecution. Is the Minister aware whether any research has been carried out to identify such occurrences? If so, is there any explanation for this apparent dissonance?

The area of corporate hospitality, which perhaps received the most criticism at the time of the introduction of the Act, remains, as the report indicated, an area where greater clarity is desired, where context is critical to assessing the appropriateness of a level of hospitality. The committee correctly recommends clearer guidance by way of examples being given. Is the Minister committed to leaving the guidance as it is, or is he really content, as the Government’s report suggests, that clarity may be outsourced, in a way, to Transparency International? If outsourcing to Transparency International is favoured, there are certainly a number of areas where TI offers guidance to the Government.

Hospitality, in its various forms, is of course one area that comes close to the conduct of government. The very first words of the report state:

“Societies are built upon trust.”


Nowhere is trust more important but less prevalent today than in government. Transparency International UK, in its recent report, Corruption and the UK, opined:

“The corrosive influence of big money continues to undermine the integrity of the UK’s political system.”


The noble Lord, Lord McNally, referred to TI’s perception of a sliding of UK enforcement. The noble Lord, Lord Empey, gave a caution to the position of London’s reputation in the world and the noble Lord, Lord Bradshaw, added his concerns.

There is an insidious form of bribery that provides hospitality and financial support in many forms, but which never expresses a direct quid pro quo; rather access, favours and influence are the implicit anticipated reward, which may come all too easily. Does the Minister agree that such conduct should be criminalised to restore integrity to the political system? Should not the definition of bribery be extended to cover such activity wherever it may arise? Does he agree with the chief executive of Transparency International UK, who in a press release of 21 September 2020 said:

“To win back public trust, Parliament should legislate to remove the corrupting influence of big money from our democracy.”?

16:45

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, I thank the noble and learned Lord, Lord Saville of Newdigate, for calling the debate today in his capacity as former chairman of the committee for post-legislative scrutiny of the Bribery Act 2010. I also wish to thank him and all other former members of the Bribery Act Committee for the important and comprehensive post-legislative review process, which they carried out between May 2018 and March 2019, before the publication of the official report. The breadth of issues covered in the committee’s report has led to the very interesting and lively debate we have heard today. Finally, I thank all noble Lords who took part in this discussion.

We will all agree that bribery is a very serious crime, and the importance of having a law for bribery which is clear, effective and robustly enforced is not in doubt either. This Government remain committed to tackling economic crime and see the Bribery Act as an important and effective tool in that endeavour. As the committee makes clear in the report, however, the task of the legislature is not just to make the law but to see whether major legislation enacted is having the effect it was designed to achieve; that is why scrutiny is so important.

As we have discussed this afternoon, the main focus of the committee’s scrutiny centred on three areas. The first is whether the Act has indeed led to stricter prosecution of corrupt conduct, a higher conviction rate and a reduction in that behaviour. The second is whether UK businesses have been put at a competitive disadvantage in obtaining foreign contracts under the stricter provisions of the Bribery Act and whether small and medium enterprises were sufficiently aware of the provisions of the Act. A further area is how far deferred prosecution agreements have affected the conduct of companies, both in preventing corrupt conduct and investigating it once it has been discovered.

It is worth reminding ourselves why we needed the Bribery Act in the first place—a number of speakers today touched on this. Bribery was not reported as a high-volume crime in the days before the Bribery Act came into being, so it could be said that it was not born of a need to address an urgent domestic problem of the day. However, in the face of growing criticism by both domestic and international stakeholders, it was apparent that reform of the previous law on bribery was increasingly necessary to deal effectively with ever more sophisticated, cross-border use of bribery in the modern world. The main objective in the development of the Act was therefore to provide modern legislation which reformed the existing common law and statutory offences of bribery by introducing a new consolidated scheme of bribery offences designed to give the police, prosecutors and the courts an effective way of tackling bribery, whether committed at home or abroad. I will return to the extraterritorial aspect of the 2010 Act in due course.

At the same time, the Government also sought to provide the private sector and affected companies with greater certainty and consistency around bribery and the obligations on companies and businesses. It was hoped that this would ensure justice for those involved in or affected by bribery, and a reinforcing of proper ethical conduct in commercial business and society in general—a matter of culture to which many speakers today adverted.

A further main policy objective of the Act was to address issues raised in relation to our international anti-corruption obligations by putting in place an effective mechanism for prosecuting bribery involving foreign public officials, and to establish effective corporate liability for bribery where it takes place. Perhaps most importantly of all, however, it was envisaged that the Act would support the Government’s wider strategy for tackling international corruption by not only deterring and penalising bribery offences but encouraging and supporting business to apply appropriate standards of ethical business conduct.

In this regard, the Government had a specific objective of combating the use of bribery in high-value transactions in international markets and, in particular, in large-scale public procurement or tendering exercises where the largest businesses operate and predominate. Although the legislation would ultimately apply to all companies falling within scope of the definition of the offence, it was recognised that small and medium enterprises would not usually engage in the business environment described above, so it was never envisaged that they would be the main focus of any enforcement activity.

As the committee itself observed, however eagerly anticipated or well received a Bill may be, it is by no means guaranteed that the resulting Act will live up to those expectations. Fortunately—again, I endorse noble Lords’ observations on the topic—the Bribery Act is now recognised internationally as being the leading model, alongside the United States Foreign Corrupt Practices Act, for effective criminal anti-bribery legislation. Moreover, the United Kingdom is recognised as one of the top four enforcers of the Organisation for Economic Co-operation and Development’s convention against bribery. Following the OECD’s review in 2017, the UK received a very positive assessment of its legislative framework. I hope that I will not be thought complacent in that I cite these figures without specific reference, at this stage, to the observations about dropping down the international league table, moving from the gold standard to the bronze.

Alongside the praise received for being a successful anti-corruption tool internationally, the Government’s own initial assessment was that the Act was performing as Parliament had intended. Much of the evidence submitted to the committee supported this, and the Government are very grateful that no major criticisms were made, reflecting the quality of the Act in its drafting. While there is always a case for listening to suggestions about where there might be further improvement, the Government were again grateful for the committee’s positive assessment that the overall structure of the Act, the offences it created, its deterrent effect, and interaction with deferred prosecution agreements are some of the main aspects which have received almost universal praise.

The committee’s final report—which we have covered in detail this afternoon—made 35 conclusions and recommendations around the implementation and enforcement of the Act. Although the Government’s position on each recommendation was made clear in the response document, we will continue to consider and, where possible, explore opportunities for increasing awareness of the associated guidance. However, I think it is clear that the Act is indeed working well and doing what it was intended to do. To illustrate this, I highlight a few of the successes of the Act as an effective enforcement tool since its coming into force in 2011.

Since that time, the Serious Fraud Office has secured its first conviction after trial for corporate offences involving bribery of foreign officials and its first guilty plea by a corporate body for an offence under Section 7—the provision that we have discussed. Nine deferred prosecution agreements have been put in place with United Kingdom companies since their introduction in 2014, six of which are for overseas corruption offences. This is in addition to the imponderable, impossible to quantify, deterrent effect that the Act continues to have on those who would seek to commit bribery offences. The Act has had a positive impact in helping businesses and corporations to reshape their culture.

The Government are not complacent over issues relating to economic crime, which remains a key priority for the Government. We are committed to exploring ways to continue to improve our response to this type of offending. We should not forget that we have achieved some other important milestones following the introduction of the Bribery Act itself. The Government’s anti-corruption strategy, launched in 2017, provides the framework for their domestic and international priorities on corruption and details each of the policies and actions being taken forward to combat that evil up to 2022. Despite the challenges that last year brought to every aspect of life, the year 2 update on that strategy was published, as expected, in July.

Speakers this afternoon have made reference to the provisions for training. The multi-agency National Economic Crime Centre, based in the National Crime Agency, has been established to co-ordinate and task the United Kingdom’s response to economic crime, including high-level fraud and money laundering. For the first time, the centre encourages and facilitates closer ties between its partner organisations in law enforcement and the regulated sector, including the Financial Conduct Authority, Her Majesty’s Revenue and Customs, the City of London Police, the Home Office, the Serious Fraud Office and the Crown Prosecution Service, all of which played an important part in the committee’s review. The Crown Office and Procurator Fiscal Service in Scotland also contributed.

Another issue that was highlighted by the committee was the lack of progress on next steps following the corporate criminal liability call for evidence in 2017. I am conscious of the criticism made by a number of noble Lords about the delay that has occurred since that date. This is an extremely complex area of law, and the Government received a number of diverse and often conflicting views to the call for evidence. This resulted in a considerable delay to an announcement on the way ahead. Although the results of the original process proved inconclusive, it is extremely positive that we have had progress on the issue since the committee’s report—and indeed the Government’s response—was published. As I am sure many noble Lords are aware, the Law Commission has agreed to carry out an in-depth review of the current law on economic crime. Work has already started on this, and I know that there is a good deal of support for the work of the commission in this House. The delay arises not out of any attempt to kick the matter into the long grass, as one speaker said earlier—or at least referred to the possibility of it being interpreted as such. It is a reflection rather of the polarisation of views with which we were presented.

The terms of reference for the project have been published on the Law Commission’s website but, in summary, it is envisaged that the first part of the process will be to draft an options paper, in which the commission will analyse how effective the law is and where it could be improved. The commission will then present various options for reform of the law, so that we can continue to ensure that corporate entities can be held appropriately to account. Initial findings are expected later this year, and it is hoped that this will lead eventually to the end of the long-running and often contentious debate on whether further changes to economic crime law are necessary. This will include consideration of a potential extension of the “failure to prevent” offence set out in the Bribery Act, so I am sure that it will be of great interest to all former committee members and to those who have contributed to our debate today.

The chairman of the committee sought specifically to learn about developments since the conclusion of our departure from the European Union. The safety and security of our citizens is the Government’s top priority. We have reached an agreement with the European Union, which delivers a comprehensive package of capabilities that will ensure that we can work with counterparts across Europe to tackle serious crime, terrorism and other offences, protecting the public and bringing criminals to justice. This includes fast-track extradition arrangements similar to those in place between the EU and Norway and Iceland. These arrangements are intended to be as fast and effective as those under the European arrest warrant, while providing greater safeguards for those who are arrested.

The agreement also puts in place arrangements that will simplify and speed up co-operation with EU member states on mutual legal assistance and asset freezing and confiscation, building and improving on the relevant Council of Europe conventions. This is the first time that the EU has agreed such a comprehensive agreement with a third country in this area. I recognise that, in the case of economic crimes, effective extradition arrangements will be important to ensure that we prosecute individuals effectively. We have these streamlined arrangements based on the EU’s surrender agreement with Norway and Iceland.

We are no longer part of the EAW. These new arrangements provide stronger protections for individuals, including provisions that make it clear that a person cannot be surrendered if their fundamental rights are at risk, or extradition would be disproportionate, or they are likely to face long periods of pre-trial detention— all evils identified under the EAW scheme. They also allow the UK courts to refuse a warrant if they believe that it has been issued to prosecute someone because of their political views, and to guarantee rights of access to translation, legal advice and consular assistance for British citizens arrested abroad.

The deal that the Government have reached in relation to our departure from the European Union enables arrangements with Europol and Eurojust that reflect the scale of our contribution to these agencies and facilitate effective operational co-operation. It enables the fast and effective exchange of national DNA, fingerprint and vehicle registration data via the Prüm system to aid law enforcement agencies in investigating crime and terrorism. We have agreed fast and effective arrangements for exchanging criminal records data through shared infrastructure and have ensured that information can be exchanged for crime prevention and safeguarding purposes. We have secured the continued transfer of passenger name records from the EU to protect the public from terrorists and criminals. As I said, we have also put in place arrangements that will simplify and speed up co-operation with EU member states on mutual legal assistance and asset freezing and confiscation, building and improving on the relevant Council of Europe conventions.

Perhaps I may turn to some of the thoughtful submissions made by speakers in the debate. The noble Lord, Lord Hain, referred to specific examples and endorsed the essay of the noble Lord, Lord Gold, on corporate culture. The noble Lord spoke about the importance of adequate resourcing and questioned the Government’s commitment to the operation of the Act abroad and the enforcement of anti-bribery measures abroad. I draw to his attention Section 12 and emphasise that the Bribery Act is an extraterritorial matter. Persons can be prosecuted where they have a close connection with the United Kingdom, and it does not matter if acts are committed abroad.

The noble Lord’s observations about London as a centre for money laundering are matters of urgent concern, but I sense that they also reflect something of London’s particular pre-eminence and status as a financial centre.

I agree with the observations of the noble Baroness, Lady Bowles, as to the importance of deferred prosecution agreements. I advise her that guidance and indeed practice emphasise that the existence of a deferred prosecution agreement does not bar prosecution of individual persons who were themselves responsible for acts of bribery. We encourage the prosecution of individuals. That has taken place already and is taking place in the context of DPAs.

As well as contributing an article which attracted positive views from members of the committee, my noble friend Lord Gold also spoke. I am happy to endorse his question and say that we will keep under review the possibility of extension of Section 7 of the 2010 Act into other areas.

I hope that I have already reassured noble Lords who mentioned the risk of complacency. It was the noble Lord, Lord Stunell, who spoke of our decline from the gold medal position to the bronze medal position on the podium. I suspect that this will be a matter which is somewhat fluid and dynamic in terms of measures coming into force. As we will discuss later, the types of offence with which the Act is concerned and the investigations put forth under it have a very long lead time.

The noble and learned Lord, Lord Morris of Aberavon, called for figures on the operation of the bodies charged with investigation of crimes of this sort. I can advise him and others that the gross budget for the Serious Fraud Office went up from £44.6 million in the financial year 2009-10 to £60.6 million in 2018-19, that being the last year for which figures are available. I regret that I do not have figures for the Crown Prosecution Service or other agencies. I shall endeavour to discover those and to write to the noble and learned Lord. I can tell him that the Government are committed both to the Serious Fraud Office and to the maintenance of the Crown Prosecution Service. We will always ensure that those bodies are fully supported to deliver their objectives, and they make their financial details available year on year.

My attention is drawn to the clock. I agree with the submission by the noble Lord, Lord German, that artificial intelligence will be an important and developing tool.

On advice given to small and medium-sized enterprises, the Government have sought to group matters together on a specific landing-site website. That means that inquiries on this matter will come to a central site and there will be easy links to places where information and advice can be discovered.

The role of the anti-corruption champion was raised by a number of noble Lords. Mr Penrose MP holds that office; he is a prime ministerial appointment and reports to the Prime Minister. The anti-corruption champion is committed to his role, which can be seen by the fact that he has weekly meetings with the joint anti-corruption unit and regular meetings with Ministers and businesses. That matter was raised by the noble Lord, Lord Bradshaw, as well as by my noble friend Lord Hodgson of Astley Abbotts.

My noble friend Lord Hodgson also made reference to the committee’s scrutiny of the Skansen case. I share his concern about aspects of the prosecution in that matter, and I am sure that the practice will have developed and will continue to develop so that what might be seen as errors in the prosecution’s approach will not be made in future.

The noble Lord, Lord McNally, referred to his gift from the outgoing Labour Government of the 2010 Act. I am happy to say that the noble and learned Lord, Lord Davidson of Glen Clova, my predecessor in this role, was responsible for that, and I thank him for his kind words. I am happy that the gift to the noble Lord, Lord McNally, on coming into post was merely the 2010 Act and not a case of whisky—a reference to the sensible observations from the noble and learned Lord, Lord Morris of Aberavon, about the nature of facilitation payments and the obviousness of bribery.

I have made reference to funding concerns and cited figures for the Serious Fraud Office and its increase in budget.

I am grateful to the noble Lords, Lord Rogan and Lord Empey, and my noble friend Lord Naseby, who spoke from experience of business abroad. The noble Lord, Lord Rogan, referred to the existence of a pilot project operating in Kenya, Mexico and Pakistan. It is important that consular, high commission and other embassy advice is available to businesses practising in foreign countries. The Government are aware of that. Time may not permit me to refer noble Lords to the range of training in place but, again, I can write to noble Lords who raised the question. I can say in relation to the specific point raised by the noble Baroness, Lady Fookes, that we will respond in writing to the question of how many people are involved in training in the embassies—and that also goes to consular and high commission facilities.

In answer to questions raised by the noble and learned Lord, Lord Davidson of Glen Clova, my predecessor in office, the self-report system that operates in Scotland is, as he and the noble and learned Lord, Lord Hope of Craighead, observed, distinct from the system of deferred prosecution agreements that operates in England, Wales and Northern Ireland. The initiative must be reviewed and approved each year by the Lord Advocate, and was most recently extended until June 2021. The fact that business is required to put in place measures to prevent unlawful conduct is viewed as an effective means of preventing corruption in future.

In 2018, the committee asked the Lord Advocate about a perceived lack of transparency with the self-report scheme, because the matter does not go before a judge in open court. The Lord Advocate does not accept that there is a lack of transparency in the Scottish system. Following the conclusion of any settlement under the self-reporting scheme, as part of a proactive strategy, the Crown Office invites publicity and provides information for media releases which are published on a dedicated bribery page on the Crown Office and Procurator Fiscal Service website.

In response to a further point raised by the noble and learned Lord, there are no current plans to amend the Act, but we will await with interest the findings of the Law Commission review of corporate criminal liability. In relation to the concern raised by a number of noble Lords about the guidance on offer in relation to corporate hospitality, we believe strongly that professional organisations and trade associations are better placed to provide both sector-specific and bespoke guidance on corporate hospitality. In relation to the broader point raised by the noble and learned Lord, we can readily see that there may be a difficulty if, further down the line to the provision of specific tailored advice in specific circumstances, one side might plead that it was being prosecuted having followed advice, and the other might declare that material facts that would have influenced any advice given had not been disclosed. It is that sort of matter that the Government’s approach seeks to avoid.

I thank the noble Lord, Lord Thomas of Gresford, for his characteristically thoughtful analysis of the matter and his endorsement of the operation of Section 7. My observations in relation to the last point follow his remarks that the Government are not a trade body in relation to the provision of advice to members.

I suspect that I have gone over time and I apologise for trespassing on your Lordships’ patience and that of the clerk and others here. I thank noble Lords for their thoughtful contributions and am particularly grateful to the committee for its work in scrutinising this piece of legislation. I am happy that the legislation and its operation, broadly speaking, enjoy such support across the Benches in your Lordships’ House. I apologise to noble Lords if I have not responded, owing to the times constraints, to specific points that they have raised, but I will go over my notes and those taken for me in relation to points raised by noble Lords, and will correspond in due course.

17:12

[Lord Saville of Newdigate (CB) [V]]

My Lords, during the course of the debate, a number of speakers raised the question of applying vicarious criminal liability to companies in cases of bribery. There are very strong views held on both sides of this question, but I simply draw attention, once again, to Section 7 of the Act, on the failure to prevent bribery. This avoids all questions of mens rea and other difficulties and provides, in my view, a ready means of catching out the company if it has failed properly to take adequate measures. If we apply that section to the ship captain who has lost his ship, then he would not get away with it if he had failed to take adequate measures to keep his ship seaworthy.

I take this opportunity to publicly thank the staff who worked for this committee. The advice and guidance of our clerk, Michael Collon, proved quite invaluable. We could not have been better served. I wish him a long and happy retirement. The same could be said—except that he is not retired—of Ben Taylor, our policy analyst. His historical and other research was of the highest quality. Alasdair Love and Rebecca Pickavance also formed part of the team, and we were all very impressed by the hard and good work that they did for us. I also thank Anne-Marie Ottaway, a solicitor with extensive knowledge of the working of the Bribery Act, whose assistance as our specialist adviser made an important contribution to our work. Finally, I thank the other members of the committee, all of whom played a vital part in our deliberations. It was a very great pleasure to work with such people.

Motion agreed.

[The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)]

That completes the business before the Grand Committee this afternoon. I remind all Members to sanitise their desks and chairs before leaving the Room.

Committee adjourned at 5.15 pm.

House of Lords

Wednesday 3rd February 2021 Lords Chamber

Wednesday 3 February 2021

The House met in a hybrid proceeding.

12:00

Prayers—read by the Lord Bishop of Salisbury.

Captain Sir Tom Moore

Wednesday 3rd February 2021 Lords Chamber

12:07

[The Lord Speaker (Lord Fowler)]

My Lords, before we begin Oral Questions, I would like to lead the House in a moment of silence in memory of Captain Sir Tom Moore, who died yesterday. His quiet resolve and selfless spirit of public service will never be forgotten. As we pause to remember him and his enduring legacy, we also remember all those who have died since the start of the pandemic. I ask Members to rise for a minute’s silence.

The House observed a minute’s silence.

Arrangement of Business

Wednesday 3rd February 2021 Lords Chamber

Announcement

12:09

[The Lord Speaker (Lord Fowler)]

The Hybrid Sitting of the House will now begin. Some Members are here in the Chamber, others are participating remotely, but all Members will be treated equally. Oral Questions will now commence. Please can those asking supplementary questions keep them short and confined to two points? I ask that Ministers’ replies and answers are also brief.

Music Sector: Working in Europe

Wednesday 3rd February 2021 Lords Chamber

Question

12:10

Asked by

[The Earl of Clancarty]

To ask Her Majesty’s Government what steps they plan to take to support the music sector with (1) touring, and (2) other work, in Europe.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Baroness Barran) (Con)]

My Lords, the Government recognise the importance of international touring for the whole range of UK cultural and creative practitioners. The Secretary of State has committed to creating a DCMS-led working group to work closely with the sector’s representative organisations and other key government departments to assist businesses and individuals as far as possible to work confidently in the EU. That group met for the first time on 20 January.

[The Earl of Clancarty (CB)]

My Lords, does the Minister find it acceptable that artists from countries across the globe, such as Colombia and the United Arab Emirates, have through the standard visa waiver agreement potentially better access to the EU than ourselves, the EU’s next-door neighbour? What steps are the Government taking to proactively engage with the EU to find a solution to touring arrangements in Europe? Having to deal individually with 27 EU countries and even, as in Belgium and Germany, regions within countries does not cut it. It is the last thing that the music sector wants.

[Baroness Barran (Con)]

The noble Earl is right to highlight some of the challenges that now face our brilliant musicians and creative artists. As he knows, in the UK-EU trade negotiations the EU tabled a proposal for a permanent waiver for short stays covering UK and EU citizens that drew on agreements such as those with Colombia and the UAE. However, this offer would not have met the needs of touring musicians in the round, nor was it compatible with our manifesto commitment to take back control of our borders. Therefore, our starting point is to listen to and work with those in the sector to make sure that they have the information that they need, in a clear and accessible way, so that they can continue their valuable work once Covid restrictions are lifted.

[Baroness Bakewell (Lab) [V]]

My Lords, the countries cited by my friend the noble Earl have unilateral agreements with the EU, which makes these relationships possible. Will the Government now seek their own new bilateral agreements with the EU and EU member states, separate from the trade agreement, so that they can exempt touring performers and creative people from the visa and work permit regulations?

[Baroness Barran (Con)]

As the noble Baroness has heard me say at the Dispatch Box on several occasions, we are exploring individual options to try to ease the process for our musicians and creative artists, but there are no current plans such as the one that she suggests.

[Baroness Bonham-Carter of Yarnbury (LD) [V]]

My Lords, I welcome the dialogue between the Minister’s department and the industry. Not just musicians but professionals from other creative industries rely on touring and now face this extra bureaucracy when moving between the EU and the UK. Can the Minister say whether moving equipment—whether musical instruments, scenery, merchandise or artefacts—by truck or cargo will require carnets between Great Britain and Northern Ireland? The Northern Ireland protocol makes no mention of temporary import/export.

[Baroness Barran (Con)]

Given the sensitivities around arrangements with Northern Ireland at the moment, if I may, I will double-check and confirm to the noble Baroness. My understanding is that artists and organisations based in Northern Ireland will not be required to obtain ATA carnets or musical instrument certificates when touring in the EU, because the protocol means that Northern Ireland is part of that regulatory environment.

[Lord Vaizey of Didcot (Con)]

My Lords, half our musicians earn half their income in the European Union. Echoing the noble Earl, Lord Clancarty, I add that Tonga and St Lucia also have visa waiver agreements with the European Union. Is the Government’s position that Tonga and St Lucia do not have control over their borders and therefore should now turn their backs on their visa waiver schemes, or will the Government see sense and pursue a bilateral agreement for a visa waiver scheme for our musicians?

[Baroness Barran (Con)]

This Government are not responsible for any of the visa arrangements for the countries to which my noble friend referred. We recognise that additional requirements will need to be met for our cultural professionals to tour and work in the EU. Some member states allow touring without a permit and others require a pre-approved visa and/or work permit. We are undertaking an extensive programme of engagement with our sectors to find the best way through.

[Baroness Bull (CB)]

My Lords, the deal presents challenges across all art forms. The 10-person dance-circus company Motionhouse exemplifies this. It is currently negotiating a 56-show tour at 20 venues in 11 EU countries. The additional costs of carnets, permits and visas rise to £37,000, on top of new administrative costs and in-country taxes. Is the Minister aware that the company will also need to monitor any holidays that its dancers take in the Schengen area? If it pushes any one of them over the 90 days allowed, it could be forced to cancel or refuse bookings. What advice can she offer this company and many like it, so that it can continue to promote UK creativity to the world, as it has done for 33 years?

[Baroness Barran (Con)]

I congratulate the company on what it has achieved over the last 33 years. We in this House are all proud of the work of our creative colleagues. I advise them to work through their industry bodies to make sure that the department hears of the issues that they face and can feed them into the solutions that we are trying to find.

[Baroness McIntosh of Hudnall (Lab) [V]]

My Lords, listening to the noble Baroness’s answers today, I have the uncomfortable feeling that we have gone backwards from where we were a couple of weeks ago, when she last answered a Question on this subject in the House. Is she saying that the Government now have no intention of further engagement with the EU or EU member states to try to get a better outcome for the many performers and performing arts organisations that are faced with these new restrictions? If so, is that not a counsel of despair?

[Baroness Barran (Con)]

I hope that it is not a counsel of despair. As I have said before in the House, there is scope to return to this issue in the future, should the EU change its mind. We were clear on what we tried to achieve. That ambitious request was based on advice that we received from musicians and the creative industries more broadly. We cannot go back from what they have told us that they need. The Government are looking at whether we can work with our partners in EU member states to find ways to make life easier for them in the meantime.

[Lord Strasburger (LD) [V]]

A year ago, the Creative Industries Minister told the Commons that music tours are

“the lifeblood of the industry”.

He said:

“It is essential that free movement is protected for artists post 2020.”—[Official Report, Commons, 21/1/20; cols. 56-57WH.]


Those are fine words, but what is the reality? The creative arts were completely ignored in the EU trade deal. One of our stellar export industries has been butchered by this botched negotiation. Why have the Government not gone back to Brussels to fix this mess?

[Baroness Barran (Con)]

I cannot accept the noble Lord’s assertion that these industries were ignored. Our negotiators worked extremely hard to try to put forward a proposal that would have benefited both the EU and the UK creative sectors and we are disappointed that it was not accepted.

[Lord Bowness (Non-Afl) [V]]

This issue is much wider than just musicians, although that is clearly extraordinarily important. I am amazed we were only having discussions with the industry on 20 January, because this issue has been around for a long time. On 20 December, the noble Lord, Lord True, told me that the more ambitious agreement on movement was rejected by the EU. However, in March last year the Home Office told me:

“These arrangements are not dependent on whether or not the Government concludes a Comprehensive Free Trade Agreement with the EU.”


On 5 May, I was told that it depended on both. My question, which I raised in the debate on 8 January was: does this have to be negotiated with the EU or the individual states? If it is the latter, how many of the 27 have we approached and how many are we engaged with in negotiations?

[Baroness Barran (Con)]

To clarify for my noble friend, our work with the industry did not start on 20 January, and I am sorry if I was not clear on that point. The Secretary of State established a new round-table group which has met for the first time, but all our work in this area has been informed by feedback from the sector. In relation to my noble friend’s wider points, I will respond in writing if I may.

[The Lord Speaker (Lord Fowler)]

My Lords, I am sorry, but the time allowed for this Question has elapsed.

Hospitality Sector Minister

Wednesday 3rd February 2021 Lords Chamber

Question

12:21

Asked by

[Lord Caine]

To ask Her Majesty’s Government what plans they have to appoint a dedicated minister for the hospitality sector.

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con) [V]]

Responsibility for hospitality is currently split between BEIS and DCMS. Both departments are working closely together to ensure that the sector’s interests are strongly represented in government. The power to create a new ministerial post rests with the Prime Minister; however, whatever is decided, we will work to ensure that the sector is in the best possible place to bounce back from Covid-19 so that it plays a leading role in the UK’s economic and social recovery.

[Lord Caine (Con)]

My noble friend is well aware of the crucial importance of the hospitality sector to our economy, to employment and to our general quality of life. While I completely acknowledge the unprecedented levels of support provided by this Government, the sector still faces massive uncertainty and challenges when we finally emerge from this terrible pandemic. Rather than responsibility being split between different departments, is there not now an overwhelming case for it to be brought under one dedicated senior Minister whose sole focus is to work with the entire sector on recovery? The sector is asking for this through its online petition, which has now attracted 209,000 signatures.

[Lord Callanan (Con) [V]]

I well understand the point my noble friend is making but, as I have said, BEIS and DCMS work closely together. The split in responsibilities reflects the fact that most hospitality businesses are SMEs, and BEIS is very experienced in supporting them. However, hospitality accommodation is more closely aligned with the responsibility DCMS has for tourism. We are co-ordinating our activities closely.

[Baroness Sanderson of Welton (Con)]

My Lords, throughout the pandemic the Government have recognised the importance of the hospitality sector and provided funding accordingly. I would be interested to know why they have so far resisted the idea of a dedicated Minister, as we have for sports and the arts. Will the Government at least consider an interim position, as suggested in the other place, of an industry recovery Minister, which could then be made permanent if it were found to be working well?

[Lord Callanan (Con) [V]]

As I said in my previous Answer, the responsibility for creating new ministerial positions rests with the Prime Minister. I think he has responded in writing to some of these questions from the Liaison Committee on that matter.

[Lord Bilimoria (CB) [V]]

My Lords, the hospitality industry has suffered more than just about any other sector over the last ten and a half months, being closed for more than half that period. Does the Minister agree that the Government should provide a road map, as the CBI—of which I am president—has recommended? This would guide businesses on the opening up of the economy, including whether a tier system is going to return and the use of rapid mass tests. Does he also agree that business support needs to be extended for the hospitality industry in particular, including extending the furlough scheme until the end of June and the business rates holiday, so that there is no March cliff edge?

[Lord Callanan (Con) [V]]

An unprecedented package of support has been given to the industry; unfortunately it is impossible for us to say at this stage when hospitality and entertainment businesses will be able to open safely and therefore it is impossible to have a road map. We are hoping to set out more details as we go through this month and the data becomes clearer.

[Baroness Blower (Lab) [V]]

My Lords, as I am sure most noble Lords know, the hospitality industry is worth £150 billion a year to the UK economy. This is not counting the wider supply chain. It provides entry-level jobs as well as livelihoods for older workers. With the prospect of foreign holidays receding, this sector could play a major role in the start of a recovery. Therefore, will the Government consider establishing a forum with employers and unions to help secure the future of the sector and a bargaining council composed of Unite the Union and industry representatives to find sector-wide solutions?

[Lord Callanan (Con) [V]]

[Inaudible.]—in new solutions, but I very much suspect that only a small minority of workers in the industry is actually represented by Unite in particular. We have regular meetings with the sector, many of which are small businesses, and I totally agree with the noble Baroness’s point that they will have an important role to play in the recovery.

[Baroness Thornhill (LD) [V]]

VAT and business rates have already been mentioned, which are two important issues to be clarified as soon as possible. There have also been several extensions to the Coronavirus Job Retention Scheme. Is it not time to state clearly that it will be extended until the end of the year, particularly for businesses that continue to be restricted by either social distancing rules or travel restrictions? Given the advice of the WHO, that a 1 metre distance is as effective as 2 metres, are there any plans to consider that as part of the opening-up strategy?

[Lord Callanan (Con)]

We are keeping matters closely under review and if there are any extensions, the Government will want to announce them as quickly as possible. We are dealing with a fast-moving situation, but we recognise that the past few months have been very challenging for businesses in a wide variety of sectors and hospitality businesses in particular. We have provided an unprecedented package of support for businesses during this time of crisis.

[Lord Bassam of Brighton (Lab) [V]]

My Lords, I think the Minister might acknowledge it has been rather more than challenging, because UKHospitality found that sales in the sector fell by 54% in 2020 and now 650,000 businesses fear collapse over the next three months. Will the Government bring forward a comprehensive national plan for the hospitality sector as a matter of urgency, so that the recovery is not choked off? Are the Government actively considering an extension of the VAT cut to 5% for a further month? If a recovery plan is generated by the Government, can they please consult extensively across all sectors and ensure that nations and regions are considered?

[Lord Callanan (Con) [V]]

We keep all of these recovery measures under constant review and if we need to extend them further, we will of course do so. With regard to the recovery plan, it is impossible to say at the moment when we will be able to reopen the sector, but we should be able to be clearer on this towards the middle of this month.

[Baroness Pidding (Con) [V]]

My Lords, hospitality matters for so many reasons. It provides jobs and opportunities for business and it offers social interaction, enjoyment and stimulation for our well-being. Does my noble friend the Minister agree with me and other noble Lords that we need a clear road map for the hospitality industry—a route showing how we can ensure that hundreds and thousands of businesses can survive through these challenging times and emerge through to the other side?

[Lord Callanan (Con) [V]]

My noble friend is totally correct in terms of the importance of the hospitality sector. I can assure her that we will not keep restrictions for a day longer than is absolutely necessary, but we cannot have a road map at this stage because we do not have enough data as yet to know exactly how soon it would be safe to reopen. The picture should, I hope, be clearer by mid-February.

[Lord Dodds of Duncairn (DUP) [V]]

My Lords, I heartily endorse the call of the noble Lord, Lord Caine, for a hospitality Minister, who could co-ordinate the national response right across the United Kingdom. In the meantime, can I urge the Minister with responsibility to take on board the need to extend the VAT cut, which has applied from July through to 31 March? Most hospitality businesses have been closed for a large proportion of that time, and it would not make any sense that, as they reopen, that cut would not be available to help them through the very grave difficulties that they will face.

[Lord Callanan (Con) [V]]

The noble Lord made his point very powerfully, and I will ensure that his comments are passed on to the Chancellor.

[Lord Foulkes of Cumnock (Lab Co-op) [V]]

My Lords, I have had a look at the websites of the two departments that are supposedly responsible for the hospitality industry—BEIS and DCMS—and there is a total of 13 Ministers, including three in the House of Lords. Whereas the noble Baroness, Lady Barran, has responsibility for ceremonials and the noble Lord replying has responsibility for the Ordnance Survey, not one of the 13 is listed as having responsibility for hospitality. Is this not embarrassing for the Minister and his department, and what will he do about it?

[Lord Callanan (Con) [V]]

There are two Ministers—Minister Huddleston in DCMS and Minister Scully in my department—who look after the interests of businesses and others in the sector, so the noble Lord need have no fears: the concerns of the hospitality sector are well heard in two government departments.

[Baroness Warsi (Con) [V]]

My Lords, I welcome the additional support made available by the Government for the hospitality sector in the form of the closed business lockdown payment and the additional restrictions grant, but both of these do not appear to support many of those working in the wedding hospitality sector. While I hear what my noble friend has said about planning, could he tell the House what engagement the Government have had with the wedding sector in particular? What plans, if any, do they have for allowing weddings beyond the current arrangements, which allow them only in the most exceptional circumstances?

[Lord Callanan (Con) [V]]

My noble friend makes a very powerful point. My ministerial colleague, Minister Scully, is closely working with the sector to hear its concerns. He has had a number of meetings with the sector—if that is not right I will correct that for my noble friend—to listen to concerns, hear about plans for reopening and do whatever we can to work with it in this extremely difficult and challenging time.

[The Lord Speaker (Lord Fowler)]

My Lords, all supplementary questions have been asked, and we now come to the third Oral Question.

National Risk Register

Wednesday 3rd February 2021 Lords Chamber

Question

12:32

Asked by

[Lord Harris of Haringey]

To ask Her Majesty’s Government what plans they have to introduce annual reporting to Parliament on the state of national preparedness for top-tier risks in the National Risk Register.

[Lord Harris of Haringey (Lab) [V]]

My Lords, I draw attention to my interests in the register and beg leave to ask the Question standing in my name.

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, a range of documents has been published that provide an overview of preparedness for major risks, including the national risk register, which provides information on those that have the potential to cause significant disruption. The Government do not currently have plans to publicly share further reports on this matter due to the confidential nature of the information.

[Lord Harris of Haringey (Lab) [V]]

My Lords, of course there are some preparations that it would not be right to reveal publicly, but that is what the Intelligence and Security Committee is for. Covid has already cost us more than half a trillion pounds, but at the start of the pandemic, of the emergency stockpile of 26 million NHS respirators, 21 million were past their use-by dates. Neither the lessons from Exercise Cygnus, nor the recommendations from the New and Emerging Respiratory Virus Threats Advisory Group, have been acted on. To govern is to choose, and the choice was to leave us underprepared. Is it not in the public interest for Parliament to know how ready we are for the other serious risks on the national risk register?

[Lord True (Con)]

My Lords, I have said repeatedly at this Dispatch Box that lessons from Covid planning, and other planning, will be learned and are being learned, and will be communicated. I pay tribute to the work of the noble Lord on the Joint Committee on the National Security Strategy. He will know that the Government regularly respond to requests from that committee on risk assessment to inform its work, and they are currently responding to the recommendations in its report Biosecurity and National Security.

[Lord Kirkhope of Harrogate (Con) [V]]

I congratulate the Government on their approach to maintaining the national risk register, but, following the recent severe flooding in Yorkshire and elsewhere, is my noble friend satisfied that there is adequate co-ordination between the national risk register and community risk registers in identifying and meeting such risks?

[Lord True (Con)]

My noble friend touches on a very important point. In all candour, I think that one is never satisfied with anything; one always wishes to learn from what happens to do things better the next time. However, I assure him that, to support their planning for emergencies, local resilience forums are provided with full support to develop local resilience plans. They have direct contact with the Cabinet Office, should specific questions on risk assessment be raised—I assure the noble Lord that this ongoing dialogue is strong and will be strengthened.

[Lord Bird (CB)]

Should the national risk register be about risks that are longer than two years and those over the next 10, 20 or 30 years? Also, the committee that was supposed to look into pandemics was closed down six months before the pandemic started: is that not a sign that perhaps we are a bit closed and not looking out in a real way to the great risks that face us now? Of course, the greatest risk is that of poverty.

[Lord True (Con)]

My Lords, the noble Lord makes a strong point with which I agree, having chaired one of your Lordships’ Select Committees that looked into longer-term planning. His point is important. The NSRA certainly takes into account the impact of risks on the most vulnerable in society in its methodology.

[Lord Clark of Windermere (Lab) [V]]

My Lords, emergency planners readily accept that the wider the input there is to a national risk register, the better it is, by its very definition. What plans have HMG to extend that input?

[Lord True (Con)]

My Lords, as I say, the Government are in contact with a range of people. We have just discussed the issues of flooding and vulnerable groups, and, as I said in answer to the first supplementary question, the Government are obviously in contact with the Joint Committee on the National Security Strategy. We cast our interests and our ears—if you can cast your ears—widely.

[Baroness Walmsley (LD) [V]]

My Lords, Professor Dame Sally Davies, the UK envoy on anti-microbial resistance, is calling on academics, Governments and not-for-profit organisations to work together to tackle this global health risk, which is a threat to both lives and economies. What action have the Government taken and what are their plans, following the recent update of the noble Lord, Lord O’Neill, on his 2016 review on this issue?

[Lord True (Con)]

My Lords, I do not have a detailed response to the O’Neill report, but I can make sure that the noble Baroness gets one. However, I assure her and the House that my right honourable friend the Prime Minister has personally made clear his commitment to this Government being in the lead internationally in the fight against all manner of disease threats.

[Lord Dobbs (Con) [V]]

My Lords, the national risk register tries to identify both malicious and non-malicious threats, including misinformation. No one would ever suggest that President Macron’s recent rubbishing of the vaccination science was malicious, but it most certainly counts as misinformation that, unfortunately, plays into the hands and maliciousness of the anti-vaxxers. As such, might my noble friend, as an ardent European himself, be tempted later today to send Monsieur Macron this country’s very best wishes, gently remind him that the glorious state of France has nothing to fear from British success and suggest to him that the greatest danger facing all of us in this chaotic world is ignorance, to which the President has, sadly, unwittingly contributed?

[Lord True (Con)]

With his normal ingenuity, my noble friend encourages me to make about five diplomatic gaffes in five seconds. I am certainly not going to fall into that trap. Those who advise best on disease and on the safety of vaccines are the professionals. The British Government have total confidence in the advice that they have received on vaccines.

[Baroness Hayter of Kentish Town (Lab) [V]]

My Lords, how do we know whether the £5 billion programme for flood relief is sufficient and proportionate to the flood risk? Should not Parliament be able to debate this and have input into it? The more minds involved, the better our preparedness will be.

[Lord True (Con)]

My Lords, the lead government department concerned with flooding is the major one that should respond on that. Any debate on flood risk in your Lordships’ House would benefit not only the Government but the nation.

[Lord Truscott (Ind Lab) [V]]

My Lords, the 2020 national risk register refers to planning to tackle Covid-19. It says that

“the UK Influenza Pandemic Preparedness Strategy covers strategic planning, response and scientific evidence for many emerging infectious diseases.”

Is not one of the lessons of the pandemic that the level of planning—for flu only—was totally inadequate? Is it not the case that there was simply no government planning for a coronavirus pandemic?

[Lord True (Con)]

The noble Lord may understand that Covid was a novel virus that emerged. He under- estimates the importance of the pandemic planning work. The NSRA was a vital starting point for the Covid-19 response. We have discussed that in a number of ways, but there is no doubt that the fast preparation of the Coronavirus Act was the result of effective planning for a pandemic.

[Lord Lucas (Con) [V]]

My Lords, one of the great successes of the vaccine programme has been bringing our level of manufacturing capability back onshore. Do the Government have similar plans for generic medicines, microelectronics and power generation equipment? All these sectors are vulnerable should, say, China choose to go to war with Taiwan.

[Lord True (Con)]

My noble friend raises an important point. Again, I am not going to write an industrial strategy from this Dispatch Box any more than I am a diplomatic policy. We have seen the value of the co-ordinated response to Covid. The creation of a national capacity has been greatly to our benefit. I am sure that his comments will be widely noted.

[Lord Scriven (LD) [V]]

Having a good risk register is not the same as having a good system of risk management. Despite pandemic being mentioned as a significant risk in the national risk register, why did the Government’s response to Covid not follow the department of health’s approved contingency plans for dealing with a SARS-type outbreak?

[Lord True (Con)]

My Lords, as I said before, in my judgment—and in that of the Government—it is too early to draw all the lessons from the Covid emergency. Some tend to underestimate its novelty and gravity. This Government and all Governments in the world have sought to respond in the best interests of their peoples. We have drawn on the lessons from the pandemic review, as will be seen when any examination or inquiry takes place.

[The Lord Speaker (Lord Fowler)]

My Lords, the time allowed for this Question has elapsed.

Electricity Supply

Wednesday 3rd February 2021 Lords Chamber

Question

12:44

Asked by

[Lord West of Spithead]

To ask Her Majesty’s Government, further to the announcement by EDF of a delay in electricity generation from Unit 1 at Hinkley Point C, what assessment they have made of the impact of any such delay on energy supply in the United Kingdom.

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, the capacity market is the market mechanism we use to ensure that the volume of power generation we have available is always sufficient to meet national demand. If Hinkley Point C looks likely to be delayed, we will procure more alternative capacity in the meantime. Taxpayers and consumers will not be affected by the changes that EDF recently announced. The investors are entirely responsible for the project cost and schedule.

[Lord West of Spithead (Lab)]

My Lords, I thank the Minister for her Answer. Considering the pressures of Covid, EDF is to be congratulated on what has been achieved on site. If you go to see what has been done, you will know that it is quite amazing.

Nuclear will have to provide about 30 gigawatts of electrical power by 2050 if we are to meet net zero. Large reactors are required for electrical generation but, of course, AMRs must be developed for co-generating heat and hydrogen production. Building Sizewell C is now a matter of urgency. The Government’s energy White Paper and national infrastructure strategy rightly put nuclear at the heart of our net-zero future.

The National Security and Investment Bill which is going through the House is likely to scupper Bradwell B. There is grave concern about the withdrawal of Horizon Nuclear Power’s development consent order application for the construction of Wylfa Newydd. Are the Government concerned? This new nuclear reactor is needed now more than ever. There are less than two months in which to find a solution.

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, in a nutshell, Wylfa Newydd is probably the best nuclear site currently available globally. The Government are very keen to find a developer for it. While we are naturally disappointed that Horizon is not going ahead, any other developer will need to make a fresh development consent order relevant to its own technology. We are keen to discuss new-build projects with the investors of any other companies willing to develop these sites.

[Lord Berkeley (Lab) [V]]

EDF blames the massive cost increases and delays on ground conditions. It has owned the site for more than 10 years and, if it has not been able to work out what is under the ground, heaven help us. More seriously, these cost increases follow similar stories to EDF’s two other projects in Cap de la Hague and Finland. I question whether they will ever open. Who will fund the cost escalations resulting from these delays and changes—the taxpayer, EDF or the consumer? Somebody will have to.

[Baroness Bloomfield of Hinton Waldrist (Con)]

The cost escalation will be entirely borne by the developer. It is one of the reasons why we will pay £92.5 per megawatt hour for the electricity produced from this site. Delays have increased costs, but it had already been announced in 2019 that there was likely to be a delay and that the increased cost would be £500 million. Covid has had a significant effect. In trying to have workers on a socially distanced site, numbers have dropped from 3,800 to 2,000. Post-Covid, the figure is expected to get up to 7,000 employees.

[The Lord Bishop of Salisbury [V]]

My Lords, the price of electricity from Hinkley is remaining unchanged at £92.50 per megawatt hour, and EDF is expecting the same profit of more than 7.1% on its investment. Given that, can the Minister explain the points that she has just made about how the additional 30% of construction costs on the initial £18 billion budget is being absorbed at no cost to consumers? As the price of electricity from renewables has dropped—with wind now at £40 per megawatt hour—might not research and development into renewals have been a better investment? Hinkley already looks like transitional technology.

[Baroness Bloomfield of Hinton Waldrist (Con)]

The truth is that we need a blend of all these technologies to produce the low-carbon power we will need by 2050. We negotiated the contract with EDF and CGN so that they would bear the full costs of any escalation in construction. The £92.5 price cannot directly be compared with the price for more intermittent forms of generation. I hope that satisfies the right reverend Prelate.

[Lord Robathan (Con) [V]]

My Lords, I agree with my noble friend that we need a blend of energy. I welcome the progress on renewable energy since 2010. I hope that perhaps there will be further progress on nuclear fusion and hydrogen technologies. Can she confirm that the power station at Hinkley Point is part of our critical national infrastructure? Are we entirely confident that there are no companies involved that might owe allegiance elsewhere, should there be a crisis? She will of course know that I am talking about Chinese companies.

[Baroness Bloomfield of Hinton Waldrist (Con)]

My noble friend will be reassured to know that the fusion projects are proceeding at a fast pace, and a competition has just been launched to host the first STEP project in the UK. As he will know, the White Paper promised £385 million to invest in new nuclear technologies. On his last point, all investment involving critical infrastructure is subject to thorough scrutiny and needs to satisfy robust legal, regulatory and national security requirements. These will only be enhanced by the National Security and Investment Bill, which arrives in this House tomorrow.

[Lord Oates (LD)]

What justification can the Minister provide for licensing new nuclear plants when, 60 years after the UK’s civil nuclear programme began, the Government still have no solution for the safe, permanent storage of existing high-level nuclear waste, which remains deadly for longer than any civilisation has ever survived?

[Baroness Bloomfield of Hinton Waldrist (Con)]

It is a priority of the Government to look after the waste securely. We have been looking for a permanent solution for the geological disposal facility. All developers are responsible for the cost of storage and transportation of nuclear waste, which has been safely disposed of since we pioneered nuclear power stations in the 1960s.

[Lord Marlesford (Con) [V]]

My Lords, I declare my Suffolk interests, as in the register. We will have to leave Hinkley to sort itself out from the muddle that EDF is now making, but Sizewell C is expected to cost £21 billion. Will my noble friend consider that the British Rolls-Royce consortium, which is making small modular reactors, could offer to produce eight SMRs at a cost of only £16 billion, on the same timescale as EDF was scheduled to produce Sizewell but which it will no longer be able to?

[Baroness Bloomfield of Hinton Waldrist (Con)]

My noble friend will be aware that EDF is estimating a 20% reduction in cost for using the same technology that it has been using at Hinkley Point C, which is why we are proceeding with Sizewell C. We need a mix of all these technologies. He is right to point out the potential of advanced nuclear technologies: that is why we are investing in them. The Rolls-Royce SMR is likely to be operational by 2032. Investment in AMR technology, which has the potential to help us in our hydrogen ambitions, will follow shortly thereafter.

[Lord Ravensdale (CB) [V]]

My Lords, I declare my interests, as shown in the register. We are losing a large amount of low-carbon firm power capacity by the end of this decade. Much of the debate on future generation has been based on comparison of levelised costs of electricity metrics between technologies. Does the Minister agree that this does not recognise the system costs of intermittent generators, and that an alternative model should be developed which accounts for this and positively incentivises renewable generators, such as equivalent firm power auctions?

[Baroness Bloomfield of Hinton Waldrist (Con)]

The noble Lord makes an interesting point. He is right that we should take all costs of the energy system into account when making choices about our generation mix. The latest departmental modelling does this. It is not as simple as calculating firm power equivalence. A system’s cost depends on what is available across the sector, rather than focusing on each type of generation separately.

[Lord Grantchester (Lab)]

The energy White Paper stated that, at Hinkley Point C, EDF

“expects that 64% of the construction contracts, by value, will go to UK-based companies.”

Can the Minister confirm that this will continue to be the case, despite the delay and increased costs of that project? Can she translate this into the number of jobs? How widespread or, alternatively, how concentrated, are their location? What is the multiplier effect on local jobs? Will this be reflected in a similar fashion at Sizewell C, at the reduced cost now agreed?

[Baroness Bloomfield of Hinton Waldrist (Con)]

Our aim is certainly to replicate the mix of local construction costs into the UK economy. Hinkley Point has indeed invested £12 billion into the UK economy, which represents 64% by value. I cannot comment on the multiplier effect, but Hinkley Point C has generated 10,300 jobs to date and has had knock-on effects, such as the co-operative group of farmers who now produce food for the entire Hinkley Point estate. I understand that a couple have gone on to supply other local businesses too.

[The Lord Speaker (Lord Fowler)]

My Lords, the time allowed for this Question has elapsed, which brings Question Time to an end.

12:55

Sitting suspended.

Arrangement of business

Wednesday 3rd February 2021 Lords Chamber

Announcement

13:00

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

My Lords, the Hybrid Sitting of the House will now resume. I ask Members to respect social distancing.

Hotel Quarantine for Travellers

Wednesday 3rd February 2021 Lords Chamber

Private Notice Question

13:00

Asked by

[Lord Hunt of Kings Heath]

To ask Her Majesty’s Government what plans they have to implement a mandatory hotel quarantine for all travellers arriving in the United Kingdom.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Bethell) (Con)]

My Lords, these new measures at the border are a necessary step to protect the public and our world-class vaccination programme. Every layer of protection we have put in place will help reduce the risk of transmission of the virus and prevent any potential new strain entering the UK. All measures will be kept under review and, if required, further action will be taken to add another layer of protection against transmission.

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, given the good news on vaccines, should we not be ever more vigilant on our borders? The 22 December meeting of SAGE identified the rapid spread of a variant in South Africa, and the NERVTAG meeting of 13 January warned of the rapid growth of variant B1351 in South Africa and called for enhanced border measures. Since then, how many people have entered the UK from South Africa? Why, as Yvette Cooper said yesterday, is it still possible for people to return home to the UK from South Africa and go straight into the community with no tests on arrival, no quarantine hotels and no quarantine taxis? Scotland has announced extensive new quarantine rules today. When will the Government get a grip and bring in the much tougher quarantine measures they should have introduced weeks ago?

[Lord Bethell (Con)]

My Lords, I entirely agree with the noble Lord. He is right that additional vigilance is required. The advent of new variants that could have higher transmissibility or escape the vaccine is a complete game-changer, and that is why we have changed our approach to border management. We have upgraded our border control measures, and there will be further government announcements on that. We have introduced red lists of countries where there are variants of concern, and we have implemented Project Eagle, the tracing project to track down those who have tested positive in genomic sequencing for variants of concern.

[Baroness Jolly (LD) [V]]

My Lords, the Minister will be aware that Australia is imposing a two-week quarantine for all travellers flying in from abroad, with no exceptions. My son, who has dual nationality, is flying out in March to take up a job. He must have a negative Covid test result before flying and stay in a hotel for two weeks at his own expense. Australia has shown the way; when does the Minister expect the UK to follow?

[Lord Bethell (Con)]

The noble Baroness is completely right to cite Australia, and we take our hat off to its remarkable achievement in using its island status to protect itself against the virus. We are responding to the challenge of new variants by upgrading our measures, and announcements on this will be made shortly. The CMO’s view on the variants of concern so far is that we should have a proportionate system, which means an upgrading and not necessarily an Australia-style system. But we are putting in place the kinds of measures that could be upgraded to an Australia-style system were there to be a threat of significant magnitude.

[Lord Lancaster of Kimbolton (Con)]

My Lords, yesterday, the UK recorded 16,840 new Covid cases. Australia and New Zealand recorded six and one respectively. Of course, we should not be encouraging people to travel to the UK, but some people have no choice—for family reasons, for example. I encourage my noble friend, before we adopt a blanket approach to hotel quarantine, which may be appropriate for high-risk countries, to think about the cost. Can he reassure me that the Government are more than capable of adopting a dynamic, risk-based approach to hotel quarantine?

[Lord Bethell (Con)]

My noble friend is right that we have to be proportionate and balance risk. I flag that we are aware of the extreme measures some passengers go to in order to avoid boundary controls. Some people go to extraordinary lengths to undertake journeys that, frankly, are dangerous and irresponsible. I would normally consider travel a right of enormous value which I would fight for individuals to have. But in a pandemic, it is different. In a pandemic, travelling is dangerous. You may be taking a variant of significant danger to the country of your destination, and it cannot be regarded as something done easily and lightly, as in normal times.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

The next speaker is the noble Baroness, Lady Masham of Ilton. Is the noble Baroness with us? We will come back to the noble Baroness. Let us go to the noble Lord, Lord Clark of Windermere.

[Lord Clark of Windermere (Lab) [V]]

My Lords, the Minister said that he believed there was a basic right to travel. I put it to him that there is an even greater right to live, yet we have the highest death rate per head of the population of any country in the world. Should we not put the right to live at the top of our agenda?

[Lord Bethell (Con)]

I could not agree with the noble Lord more: the right to live trumps all other rights. It is a sad fact that, while we would normally do everything we could in a liberal democracy to protect rights such as the freedom to travel, under current circumstances these are trumped by the right to live, and that is why I call on all people to limit their travel wherever they humanly can. There is simply no excuse for going to Dubai, taking Instagram photographs of yourself and claiming that that is business travel. You are putting your friends and loved ones at risk, and this Government will not tolerate it.

[Lord Taylor of Goss Moor (LD) [V]]

My Lords, given the significant community transmission of the South African variant, how confident is the Minister that we have in place today sufficient measures to stop the equivalent happening again? It does appear the Government are again running behind events.

[Lord Bethell (Con)]

My Lords, matters are evenly balanced. There are 143 confirmed and probable cases of the variant first identified in South Africa. Most of those have been connected with travel to South Africa, and those involved have been isolated. There are around a dozen in respect of which the chain of transmission is not fully understood. We have put in place a substantial team of dedicated tracing professionals to track down those variants of concern, along with teams in the relevant postcodes, so we are doing both a fire blanket of testing within the community and forensic detective analysis to track down the chain of transmission. It is my belief that that will be enough to keep the spread of the virus under control in this country, but we are watchful and concerned.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

We will return to the noble Baroness, Lady Masham, after the next speaker, who is the noble Lord, Lord Vaizey of Didcot.

[Lord Vaizey of Didcot (Con) [V]]

My Lords, it may seem paradoxical to impose tough restrictions just when a version of the winning post is in sight, thanks to the Minister and his colleagues’ excellent vaccine rollout. It may give us some comfort if he could update us on how effective his experts think the vaccines will be against the new variants.

[Lord Bethell (Con)]

My Lords, the good news to date has been that the vaccines have proved extremely robust. Certainly, the readout on the Kent domestic variant and its mutations are extremely positive. A huge amount of work is going on to understand the Brazil and South Africa variants; it seems that the latter does something to escape the vaccine, but not enough for the vaccine not to be extremely useful. The news to date is encouraging but we are extremely watchful. If a variant or mutation emerges that can escape the vaccine, we will do everything we can to protect that essential national project.

[Baroness Masham of Ilton (CB) [V]]

My Lords, I hope you can hear me—I was frozen. After quarantining in a hotel for five days or more and having had a test which proved negative, would a person be released? If a person had to return to the UK because they needed urgent medical treatment, would they be admitted directly to a safe hospital?

[Lord Bethell (Con)]

My Lords, the details of the isolation protocols have not been announced yet. However, I suggest that the amount of time needed to flush out those who have got an infection from travel may need to be longer than the five days the noble Baroness indicated. For those who have urgent need of hospitalisation, of course the NHS is there for them; we have the PHE and infection control protocols in place to protect them.

[Lord Green of Deddington (CB) [V]]

My Lords, can the Minister assure the House that any system introduced will be resilient enough to cope with a significant inflow from Hong Kong, if that were to occur? As he will know, the Government have just granted the right of entry—and, later, settlement—to up to 5.4 million from Hong Kong, roughly the entire population of Scotland.

[Lord Bethell (Con)]

My Lords, I share the noble Lord’s pride in that measure and concern that we extend a warm hand of friendship to those from Hong Kong. He raises the point extremely well. I would like to think that any system we put in place would be resilient to surge demand of the kind he indicates, but I will take his point back to the department and check that everything is being done accordingly.

[Baroness Wheeler (Lab) [V]]

My Lords, UK borders have knowingly been left open and potentially exposed people to new strains of the virus, rather than the implementation of the prompt, concerted action advised by SAGE and a comprehensive hotel quarantine system brought in for all UK arrivals. Does the Minister accept that the current 10-day self-isolation system has failed? If so, why is the policy still being pursued for the majority of travellers? We have been promised that hotel quarantine will be implemented for some countries as soon as possible, with some reports suggesting that this will not be enforced until the week of 15 February. Can the Minister confirm whether this is the target date? Will additional measures be in place for travellers from the red list of countries in the interim? Finally, does he accept that a partial quarantine is doomed to fail, given that global travellers may move across many countries during their journey, passing through multiple travel hubs and departure lounges while encountering and spending time close to many other travellers along the way?

[Lord Bethell (Con)]

My Lords, I acknowledge the detailed and perfectly reasonable questions raised by the noble Baroness, but I am unable to answer them all in detail. A Statement will be forthcoming from the Government on exactly those questions. I remind her that travel has come down by 90% in a comparative period. She is entirely right that travel patterns are complex; any measures we put in place will recognise that many travellers leapfrog from one country to another, brushing against others, and that the spread of the virus cannot be narrowly contained to travel corridors in the way one would sometimes like to hope.

[Lord Sarfraz (Con) [V]]

My Lords, can my noble friend say whether we will try to monitor the physical and mental health and well-being of those in hotel quarantine, including vulnerable travellers, travellers with disabilities and those with small children?

[Lord Bethell (Con)]

The noble Lord is entirely right to be concerned about those who travel for essential reasons but who may face some hardship through their journey. We are putting in place special arrangements to ensure they are looked after in the best way possible. However, I remind him and the House that the purpose of these measures is to reduce dramatically the amount of travel. Travel is no longer a right; it is a danger, and as a result everyone needs to think very seriously before they commit to a journey.

[Lord Loomba (CB) [V]]

My Lords, we need to control the new variant strains entering the UK by controlling the travel corridors at airports and seaports if we want to avoid a third wave of Covid-19. Can the Minister tell us whether the Government deem the mandatory hotel quarantine an important step to ensure the safety of the nation from further devastating deaths from Covid-19 and overwhelming pressure on our NHS, considering the huge impact this would have on immigration, police, medical staff and the parties waiting in hotels at airports and seaports around the country?

[Lord Bethell (Con)]

The thrust of the noble Lord’s question is entirely right. We are now living in different circumstances; the variants of concern could emerge as a real threat to the vaccine. This Government will do whatever we can to protect the vaccine deployment and the reassurance it has given to millions of people, and to protect our hospitals, our NHS and life. We will therefore do whatever it takes. He is right that travel arrangements for people must be subject to mandatory control; it is not possible to hope that people will go home and isolate in cases such as this. Hotels may play an important part in ensuring that that mandate is truly effective. Our plans are being processed at the moment; our monitoring of the variants of concern has been upgraded massively, with huge investment in international surveillance. We will update the House accordingly.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

My Lords, I am afraid the time allowed for this Question has now elapsed.

13:17

Sitting suspended.

Arrangement of Business

Wednesday 3rd February 2021 Lords Chamber

Announcement

13:45

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

My Lords, the Hybrid Sitting of the House will now resume. I ask all Members to respect social distancing.

This is day four of Committee on the Domestic Abuse Bill. I will call Members to speak in the order listed in the annexe to today’s list. Members are not permitted to intervene spontaneously; the Chair calls each speaker. Interventions during speeches or “before the noble Lord sits down” are not permitted. During the debate on each group, I invite Members, including Members in the Chamber, to email the clerk if they wish to speak after the Minister. I will call Members to speak in order of request. I will call the Minister to reply each time. The groupings are binding, and it is not possible to degroup an amendment for separate debate. A participant who might wish to press an amendment other than the lead amendment in the group to a Division must give notice, either in the debate or by emailing the clerk. Leave should be given to withdraw amendments. When putting the question, I will collect voices in the Chamber only. If a Member taking part remotely wants their voice accounted for if the question is put, they must make this clear when speaking on the group. We will now begin.

Domestic Abuse Bill

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 3rd February 2021 Lords Chamber

Committee (4th Day)

13:46

Relevant documents: 21st and 28th Reports from the Delegated Powers Committee

Clause 62: Special measures in civil proceedings: victims of specified offences

Amendment 109

Moved by

[Lord Marks of Henley-on-Thames]

109: Clause 62, page 39, line 18, leave out from “person” to end of line 19 and insert “(“P”) is, or is at risk of being, a victim of domestic abuse carried out by a person listed in subsection (1A).
(1A) A person referred to in this subsection is—(a) a party to the proceedings;(b) a relative of a party to the proceedings (other than P); or(c) a witness in the proceedings.”Member’s explanatory statement
This amendment and the other amendments to Clause 62 in the name of Lord Marks of Henley-on-Thames would apply the same special measures to parties or witnesses who are victims or at risk of being victims of domestic abuse in civil proceedings as apply in family proceedings.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, my four amendments in this group—Amendments 109, 111, 112 and 113—to which the noble Baroness, Lady Bennett of Manor Castle, has kindly added her name, are intended simply to apply the Bill’s provisions relating to special measures in family proceedings to civil proceedings as well.

Under the Bill as it stands, special measures are to be available to parties or witnesses in family proceedings who are victims of domestic abuse or at risk of being such victims. Although the provision of special measures in courts is relatively recent, the courts recognise how important it is to help vulnerable parties and witnesses reduce the trauma— the ordeal, even—of involvement in court proceedings. Special measures are arrangements to help a vulnerable party or witness give evidence or participate in court proceedings in a way that mitigates that trauma. Even in the driest and least emotional of cases, the experience of being involved in litigation, especially of giving oral evidence, is often extremely stressful. For vulnerable parties and witnesses, most with a history of deep and often emotionally searing personal involvement in the events that led to the proceedings, the experience of reliving them is fraught with anxiety, fear and even terror. Therefore, the need for special measures arises.

Such special measures enable witnesses or parties to give evidence from behind a screen, usually in abuse cases, to protect them from having to face their abuser or abuser’s family across a courtroom. Alternatively, provision can be made for witnesses to give evidence via a live link or with the assistance of an intermediary. Special measures cannot remove the fear but can help to reduce it. We take them as a matter of compassion for those involved, but also out of concern that victims and vulnerable parties should not be too frightened of bringing proceedings to come forward and therefore continue to suffer abuse in silence, sometimes with horrifying consequences. We also take special measures to help ensure that proceedings are fair, that the quality of the evidence before the court is as good as it can be in difficult circumstances, and that the courts can, therefore, make fair decisions.

For family proceedings, Clause 61 would require that where a party or witness is, or is at risk of being, a victim of domestic abuse carried out by another party or relative of another party, or by a witness in the proceedings, it is to be assumed that there is a risk of the quality of the victim’s evidence, or of her participation in the proceedings generally, being diminished.

That has the effect of bringing into play the provisions of Part 3A of the Family Procedure Rules 2010, which are supported by a detailed practice direction. They provide that victims of domestic abuse and other parties or witnesses are eligible for special measures if the quality of their evidence or their ability to participate in the proceedings is likely to be diminished by their vulnerability. The rules and the practice direction set out a full code for the court to identify vulnerability and consider ways to help vulnerable witnesses and parties. They do not just cover giving evidence. Directions may include

“matters such as the structure and the timing of the hearing, the formality of language to be used in the court and whether (if facilities allow for it) the parties should be enabled to enter the court building through different routes and use different waiting areas.”

The existing provisions also go wider than domestic abuse and cover:

“sexual abuse … physical and emotional abuse; racial and/or cultural abuse or discrimination … forced marriage or … “honour based violence” … female genital or other physical mutilation … abuse or discrimination based on gender or sexual orientation … and … human trafficking.”

Clause 61 requires the court to assume that, if the threshold I mentioned is met, special measures will automatically be available in domestic abuse cases for victims and those at risk of being victims. The court will then consider what, if any, special measures should be taken. There is scope for an opt-out under Clause 61(4), whereby a party or witness in family proceedings can signify that they do

“not wish to be deemed to be eligible”

for special measures.

The reason that I have spent some time setting out the background and the arrangements proposed for family proceedings is that they are thoroughly sensible and helpful and likely to be effective without unforeseen and unjust gaps. My amendments are directed at ensuring that the same arrangements apply in civil proceedings by bringing Clause 62 into line with Clause 61. They would implement the recommendations made by the Civil Justice Council and supported by Refuge, Women’s Aid and the Equalities and Human Rights Commission, among others.

Clause 62, as drafted, does not do the same for civil proceedings as Clause 61 does for family proceedings. For a reason I do not understand, the clause sets a higher bar for civil proceedings. There is an additional threshold test, which a party or witness would have to surmount to secure eligibility for such measures. The clause requires that to qualify as a victim or alleged victim, the person must be the victim of “a specified offence”, that is one specified in regulations by the Lord Chancellor. That condition is defined in Clause 62(3). For it to be met, there must have been a conviction or a caution for the offence, or someone must have been charged with the offence against the victim. Therefore, it would not be enough for the vulnerable witness or party to establish that they are frightened of being a victim or at risk of being a victim, nor even that they have, in fact, been a victim. They have to establish that the criminal law has been invoked so that the offender must have been cautioned or charged by the police for the specified offence or convicted of it by a criminal court. I suggest that there is no basis for this distinction between family and civil proceedings.

We know how often victims do not report abuse to the police, whether out of fear of their abusers or the relatives, fear of the trauma of criminal proceedings, concern for their private lives being exposed, or other reasons. The Office for National Statistics estimates that around four in five—79%—of survivors do not report partner abuse to the police. Requiring that victims go through the criminal process before being treated as vulnerable, and excluding those at risk of being victims from being treated as vulnerable altogether, represents a failure to understand vulnerability. Invoking criminal proceedings requires robustness. Experience and common sense tell us that vulnerable witnesses and parties are those least likely to involve the police and the criminal courts.

I have discussed this issue with the noble Lord, Lord Wolfson, and I am grateful to him for talking to me about these amendments and engaging with them. The noble Lord explained the Government’s position by saying that there is an intimacy to family proceedings not present in ordinary civil proceedings. In many cases that will be right, but I invite the noble Lord to concede, from his own experience, that there are literally thousands of cases involving partners, former partners and others who are personally connected—as defined in the Bill—which involve disputes that have a domestic or quasi-domestic context.

I give a few examples only: disputes about ownership and occupation of property; ownership, loss or damage to goods; landlord and tenant disputes, including disputes about who holds tenancies; employment disputes; and inheritance disputes. There are also disputes arising out of families running businesses together, which has become increasingly common in recent decades. These sometimes involve partnership disputes, sometimes it is disputes over the ownership of shares or misuse of company funds. In these cases, the parties might be companies, but the witnesses might have been involved in an acrimonious and abusive personal relationship.

The list goes on and lawyers well know that cases with personal connections give rise to the greatest animosity and the greatest tension. I can see no reason to apply a different test for vulnerability in civil proceedings from that applicable to family proceedings. If the conditions for family proceedings are met and the party or a witness is a victim or at risk of being a victim of domestic abuse, carried out by another party or a relative of such a party, or another witness in the proceedings, special measures should generally follow. It will always be for the court to determine whether those conditions are met, as it is in family proceedings. It would also be for the court to determine whether special measures are appropriate and what they should be. If the threshold is met, however, it is unjustified, illogical and unfair to insist that an offence must already have been committed and that the criminal law must have been invoked before eligibility for special measures is established. I beg to move.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, it is a pleasure to follow the clear, comprehensive and powerful outline of these amendments by the noble Lord, Lord Marks of Henley-on-Thames, in whose name they are tabled. It was a pleasure to attach my name to Amendments 109 and 111.

The case has been set out very clearly so I do not need to detain the Committee for long. I will just say why I attached my name to these amendments when I saw that no other noble Lords had done so. It was because of my experiences as a young journalist many years ago in Australia, when I covered mostly criminal courts. This was in the days long before there was thought of protecting witnesses who were the victims of what we now call domestic abuse.

I saw the sometimes harrowing ordeals that people had to go through. I think the noble Lord, Lord Marks used the word “ordeal”. Members of your Lordships’ House are used to testifying, speaking and being in these spaces, but we are talking about people who are victims of domestic abuse and have suffered all the personal damage that entails. They are also not used to being in these environments very often. As the noble Lord, Lord Marks, said, this is an issue of compassion—of protecting people and ensuring that we are not making victims of domestic abuse suffer again. It is also an issue of justice because if they are to be able to clearly set out the case—to explain the circumstances and to bear witness—they need to be in conditions that reasonably allow them to do that.

As the noble Lord, Lord Marks, said, to set a higher bar for civil proceedings than for family proceedings simply does not make sense. As he said, there are many cases in which civil proceedings will be intimately entangled with family issues and issues of domestic circumstances. I think particularly of farms and some cases I have seen where the acrimonious break-up of family farm businesses will often be tangled in civil proceedings but have an intensely personal side as well.

These are important, sensible and helpful amendments. I very much hope that the Government will take them on board in the interests of compassion and justice.

14:00

[Lord Rosser (Lab) [V]]

My Lords, I can be very brief in the light of what the two previous speakers have said on this amendment.

The purpose of this group of amendments, and a later group, is simply to provide consistency of protection for victims and survivors of abuse, across both the family and civil courts. These amendments would replicate in the civil courts protections that the Government already agree are needed in the family court. This seems an exceptionally reasonable ask. We support the aim of and reason for the amendments, as set out by the noble Lord, Lord Marks of Henley-on-Thames. I will be interested to hear from the Government why they have chosen to draft the Bill with this distinction between the courts.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, explained, these amendments seek to bring the procedure relating to special measures in civil courts in line with the provisions in family courts. We agree with the fundamental aim set out by the noble Lord: to ensure fair proceedings, meaning proceedings that are fair not only to the parties but to witnesses.

In that context, the Government’s starting point when considering the experience of vulnerable witnesses in the civil courts stems from the independent inquiry into child sexual abuse, which published its interim report and recommendations in April 2018. The inquiry recommended

“that the Ministry of Justice provides in primary legislation that victims and survivors of child sexual abuse in civil court cases, where they are claiming compensation in relation to the abuse they suffered, are afforded the same protections as vulnerable witnesses in criminal court cases.”

As the inquiry put it, this was to ensure that victims and survivors of child sex abuse can provide the best evidence in civil court cases.

While the Government had some sympathy with the recommendation, we also agreed that the issues raised by this recommendation needed further consideration, including whether it was right in principle to extend the protections to other vulnerable witnesses. The Government therefore sought expert help from the Civil Justice Council, which was asked to consider the vulnerability of parties and witnesses in civil actions, not just in relation to claims arising from sexual assault or abuse but more widely. The Committee will be aware that, after extensive consultation and expert input, the Civil Justice Council published its report in February last year. It conceded that there was no single or coherent set of rules in the Civil Procedure Rules dealing with vulnerability in the same way as there was in the Family Procedure Rules.

In this context, we must remember an important point, to which the noble Lord, Lord Marks, alluded. Civil cases, by their nature, have the potential to cover a much broader range of circumstances where there is no prior close connection between the parties; for example, where a victim is suing an alleged perpetrator of sexual abuse or in an action against the police or an employer where abuse is alleged. Of course, I take on board the noble Lord’s examples of cases where the parties may be corporate but, none the less, there are individual witnesses who are victims.

Having considered the matter, and in relation to special measures, the Civil Justice Council report did not go as far as recommending that it should be enshrined in primary legislation. Rather, it was felt that it was best left to the flexibility of court rules since—this is an important point—judges in civil proceedings already have inherent powers to order the provision of special measures under the Civil Procedure Rules when it is considered necessary. However, the Government took a slightly different view, taking the recommendations that came from the independent inquiry into child sexual abuse, which I have already mentioned.

As the Civil Justice Council report highlighted, vulnerability in the civil courts is not limited only to victims of domestic abuse. Some people may have mental or physical conditions that render them vulnerable and hamper their access to justice. Others, as with victims or survivors of abuse, may be vulnerable solely by reason of the subject matter of the proceedings before the court. This, as the report suggested, may affect their ability to participate in proceedings or give their best evidence.

We want to avoid—this is a risk—unnecessarily prolonging cases because of satellite litigation which revolves around the granting of special measures where the case is not contingent on vulnerability. At the same time, as I said, we need to ensure that the justice system is fair—that is, fair for all. Therefore, we must be careful to focus this provision on only the circumstances in which it is needed.

Even though the approach is different in civil courts, judges in civil proceedings already have inherent powers to order the provision of some special measures under the Civil Procedure Rules when it is considered necessary. I hope that this goes some way towards addressing the concern of the noble Lord, Lord Marks, which was shared by the other two speakers in this short debate; I acknowledge their contributions, of course, but I think it is fair to say that they largely agreed with the approach taken by the noble Lord. In that context, the Civil Procedures Rule Committee continues to examine the issues faced by vulnerable witnesses in civil courts.

While we want to ensure parity between each jurisdiction, we also need to build in allowances for the differences—and there are differences—between them. This is why the provisions in respect of cross-examination and special measures in civil cases differ from those in family proceedings.

In the light of my discussions with the noble Lord, Lord Marks, and others, and in the light of all the contributions in this short debate, let me say—in clear terms, I hope—that we very much appreciate the arguments raised in relation to fairness and the concerns around availability of special measures for those who will need them in the civil courts. We will consider this issue carefully ahead of Report and continue to listen to arguments. Of course, I remain open to discussion with both the noble Lord, Lord Marks, and others.

In the light of that confirmation and undertaking, I hope that the noble Lord will be content to withdraw his amendment.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, first, let me say how grateful I am to the noble Lords who spoke.

It was interesting to hear my rather dry opening supplemented by the personal experience of the work of the noble Baroness, Lady Bennett of Manor Castle, in courts in Australia. She made the valuable point that, generally speaking, litigants and witnesses are not used to being in court—it is a new experience for them and this adds to their concern, which is of course amplified in the case of vulnerable witnesses and parties. She also gave the interesting and important example of family farms giving rise to very personal disputes, where there is often a background of abuse. I am bound to say that, in my years of practice on the Western Circuit before doing more of what I do now, disputes about family farms were endless. They are to be taken into account. I am grateful to the noble Lord, Lord Rosser, for his support as well.

The Minister has given a considered response and ultimately made an undertaking to me and others. I am grateful for the way he has dealt with the amendments. However, I am bound to say that nothing I heard from him justifies the distinction to be drawn between the protection afforded in family proceedings and the protection available in civil proceedings. I got the impression that he understands the reasons why we have disputed that distinction.

I do not accept that a system based on the Civil Procedure Rules for protection in civil proceedings is anything like as good as a system based on statute, as the arrangements in family proceedings will be following this Bill. If a statutory arrangement is good enough for family proceedings and is applicable as appropriate for those, I would suggest that it is appropriate for civil proceedings as well. Nor do I accept that there is a realistic prospect of satellite litigation arising regarding the availability or withholding of special measures. That seems most unrealistic and, in any event, even if it were realistic, it would be no more realistic in a set of measures based on legislation than it would be presently in a set of measures based on the uncertain application of the rules of court. I welcome the Minister’s commitment to further engagement. I regard this as a very important issue, and I will of course speak to him, as no doubt will others, between now and Report in the hope of achieving agreement. I beg leave to withdraw the amendment.

Amendment 109 withdrawn.

Amendments 110 to 113 not moved.

Clause 62 agreed.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

We now come to the group beginning with Amendment 114. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division must make that clear in the debate.

Clause 63: Prohibition of cross-examination in person in family proceedings

Amendment 114

Moved by

[Lord Rosser]

114: Clause 63, page 40, leave out lines 31 to 35
Member’s explanatory statement
This is to probe that in the family court, where a perpetrator’s conviction is spent, other protections will be in place to protect a victim of abuse from being cross-examined by the perpetrator.

[Lord Rosser (Lab) (V)]

My Lords, I am speaking in place of my noble friend Lord Ponsonby of Shulbrede on this and a small number of groups to follow. My noble friend sends his apologies to the Committee; he is unable to be here because he is sitting in court today as a magistrate.

Amendment 114 is probing in nature. Proposed new Section 31R in Clause 63 provides for protections against cross-examination in person where one of the parties has a caution or conviction for a specified domestic abuse-related offence against the other. Subsection (3) provides that the protection does not apply where the conviction or caution has been spent. This amendment would remove subsection (3). It is intended to clarify that where a domestic abuse conviction or caution has been spent, other protections against cross- examination in person will apply to prevent a victim suddenly being open to cross-examination in person by a perpetrator with a history of abuse. We are all aware of the traumatic and long-lasting impacts that domestic abuse can have and the continuing risk of abuse that victims can face from a perpetrator. Where a conviction becomes spent and the protections under this new section lapse, there should surely be a risk assessment before cross-examination in person can be permitted. I hope that we are going to find out that the Bill will provide these extra protections where there is evidence of abuse or a risk of distress to the victim. It would helpful if the Government could give clarity and assurances on this point in their response.

The Victims’ Commissioner for London has also raised with us the issue of restraining orders, which are often given for a fairly short period. It would be helpful if the Minister could give assurances that the expiration of a restraining order would not impact on the ability of a victim to access necessary protections from that perpetrator in a family proceeding. I look forward to the Minister’s reply and to his explanation of the various government amendments in the group. I beg to move.

14:15

[Baroness Newlove (Con) (V)]

My Lords, I shall speak to Amendment 114. As the noble Lord, Lord Rosser, has just said, it is purely a probing amendment concerning the need for additional safeguards in cases where a conviction or caution has been spent. It seeks to build on the excellent proposals championed by the Government to protect the survivors of domestic abuse from being cross-examined by their perpetrators in the family court. As the former Victims’ Commissioner, I sadly heard directly from abuse survivors who had endured the pain, humiliation and re-traumatisation of being questioned on the stand by their abuser, and I am glad that we are putting an end to this blatantly abusive practice.

None the less, I am concerned that the current provisions overlook a scenario that we are likely to see in the family courts. Clause 63 does not currently apply to a conviction or caution that is spent. This is for the purposes of the Rehabilitation of Offenders Act 1974. I understand the motivations behind not further punishing an offender past the time when they are considered rehabilitated, yet we know that domestic abuse involves patterns of behaviour that will not necessarily be interrupted or indeed stopped by a conviction. Thanks to data from SafeLives, we know that a quarter of high-harm perpetrators are repeat offenders, with some having at least six different victims. In other parts of the Bill, we will debate the need for an effective perpetrator strategy that will undoubtedly seek to improve our interventions post conviction.

Proceedings in the family courts can go on for years and may well continue past the time when a conviction or caution has been spent, especially if other convictions or cautions occurred. However, unless some sort of intervention has been made with the perpetrator, the risk could well remain. I raise this scenario to suggest not that we should further punish, but that such risks have not been fully considered. If there was one key takeaway from the Ministry of Justice Expert Panel on Harm report, it was that there are systemic issues with how risk is identified and managed in the family courts in relation to domestic abuse.

I therefore ask my noble friend the Minister whether he considers that the proposals in the Bill as drafted will ensure that such risk is properly managed in cases where convictions or cautions have been spent. I suggest that this provision needs to be reviewed and that extra safeguards such as risk assessments should perhaps be introduced in such cases.

[Baroness Redfern (Con) (V)]

My Lords, I am pleased to follow my noble friend Lady Newlove and I warmly congratulate the Government on introducing the Bill. In doing so, I am pleased to have the opportunity to voice my support for its aims, in particular the proposals to reform the family court and provide protection measures for victims suffering domestic abuse. Even going to court is a harrowing and daunting process which can cause significant distress when a victim comes face to face with their perpetrator, even when the engagement is indirect. Measures must be in place to ensure the provision of separate entrances to the court building, as we heard earlier, and separate waiting rooms.

We know that domestic abuse comes in many traits. It is based not only on physical violence but on emotional, coercive, controlling or even economic abuse. Perpetrators of abuse should be inhibited from cross-examining their victims in person. Perpetrators should be prevented from directly or indirectly engaging with a victim during family court proceedings, particularly as many victims fear false accusations of parental alienation, which clearly has prevented many telling their personal stories. Protective screens in a court setting help to shield victims from their alleged abuser and prevent intimidation, as do live links, evidence-giving in private and greater emphasis on reassuring abuse victims, particularly children, who are always victims. These new measures will help to achieve the best result for those children.

Having received many briefings and personal testimonies, victims eagerly await new protective measures, so that the reporting of victims being re-victimised and retraumatised within the family court setting is stopped. The Bill must deliver a once-in-a-lifetime opportunity to transform our national response for domestic abuse victims and, in achieving the right support for those victims, will go a long way to helping them rebuild their lives. Importantly, they will be listened to.

[Lord Paddick (LD) [V]]

My Lords, I agree with the comments made by the noble Baroness, Lady Redfern, in a broader context. On the particular issue in this group, I have listened very carefully to the case made by the noble Lord, Lord Rosser, reinforced by the noble Baroness, Lady Newlove. The noble Lord talked about a risk assessment before cross-examination if someone has a history of abuse. Presumably he is referring to somebody with a history of abuse but whose convictions are spent under the Rehabilitation of Offenders Act. The noble Baroness, Lady Newlove, talked about repeat offenders. Repeat offending is very common when it comes to domestic abuse, but I wonder whether a perpetrator with a history of abuse, a repeat offender, is less likely to have spent convictions or cautions.

The Rehabilitation of Offenders Act is an important piece of legislation that allows offenders to move on from their previous offending, but my understanding is that if a court decides that justice cannot be done without the conviction or caution being taken into account, the court can take account of a spent conviction. This potentially means that a court could prevent cross- examination of a victim of domestic abuse if it decided that a spent conviction or caution was relevant.

I look forward to hearing the Minister’s understanding of the legislation as it is. We have no objection to the Government’s amendments in this group.

[Lord Wolfson of Tredegar (Con)]

My Lords, I will begin with the amendments tabled by the noble Lord, Lord Ponsonby, to which the noble Lord, Lord Rooker, so ably spoke, and will then turn to the government amendments, which deal with various technical and drafting changes to the same clause.

As has been explained to the Committee, Amendment 114, in the name of the noble Lord, Lord Ponsonby, would remove a qualification of the automatic prohibition on cross-examination in family proceedings by those convicted of, cautioned for or charged with specified offences, and their cross-examination by the victim or alleged victim. The removal of this qualification would mean that spent convictions and cautions under the Rehabilitation of Offenders Act 1974 would continue automatically to trigger the prohibition, irrespective of how old they may be or how circumstances might have changed. I respectfully agree with the noble Lord, Lord Paddick, that the Rehabilitation of Offenders Act is a very important provision. It enables a line to be drawn and people to move on.

It is in that context that, at the moment, the form of the Bill is that spent convictions and cautions should automatically trigger the prohibition only where evidence in relation to the conviction or caution is admissible in relation to the current family proceedings. However, as the noble Lord, Lord Rosser, reminded us, and as the Government fully acknowledge, the damage caused by domestic abuse may often last for decades, sometimes a lifetime, and well beyond the point at which a conviction or caution is spent. One must also consider the point made by my noble friend Lady Redfern, that the court process is daunting, especially for victims of abuse. Therefore, the noble Lord, Lord Rosser, is right to test the adequacy of Clause 63 in guarding against cross-examination which remains inappropriate despite convictions or cautions being spent. I am sure that all Members of the Committee will have been moved by the personal testimony of my noble friend Lady Newlove, when she explained the effect that such cross-examination can have.

However, the Government believe that Clause 63 provides adequate protection in such circumstances. We must bear in mind that the automatic prohibition on cross-examination is also triggered where a protective injunction is in place—that is the force of the new Section 31S—or where prescribed evidence of domestic abuse is provided to the court; that is the force of the new Section 31T. Moreover, and of greater importance here, given the sometimes more historical nature of abuse, is what we intend should become Section 31U of the Matrimonial and Family Proceedings Act 1984. This is an important provision, which provides context against which the noble Lord’s amendment should be considered.

New Section 31U is in deliberately broad terms and provides for a wide discretion to meet the particular facts and circumstances of the case before the court. It enables the court, either in response to an application or of its own motion, to prohibit cross-examination where it would diminish the quality of evidence or cause significant distress, so long as to do so is not contrary to the interests of justice. Any such direction will remain in place until the witness is discharged, unless it is revoked by the court in specified circumstances; for example, if circumstances have materially altered. Therefore, to answer the point made by my noble friend Lady Newlove, we consider the Bill sufficient in cases of spent convictions, because that provision enables the court to impose the ban if it appears to the court that the two conditions in new subsection 1(b) are met. That provision would therefore also deal with the point made by the noble Lord, Lord Rosser, concerning cases of past injunctions or restraining orders. New Section 31U is a very broad provision that enables the court to respond to the facts of a case and ensure that a suitable order is made. I agree with the noble Lord, Lord Paddick, that it is important that the court has this ability, for the reasons that I have set out, under new Section 31U. I hope that this gives the Committee, particularly the noble Lord, Lord Rosser, what they sought, which, according to my note, was clarity and assurance. I hope that I have provided both.

14:30

I am not going to say very much about the government amendments because there are short explanations printed in the Marshalled List, but I shall run through them briefly. Amendment 115 amends the definition of conviction to a conviction “by or” before a court. This is to provide consistency with provisions around convictions elsewhere in the Bill. Amendments 116 to 119 make some changes to the references to convictions in service disciplinary proceedings. Some proceedings under service law lead not to a conviction but to a finding of guilt or a finding that a charge has been proved. In addition, a person will sometimes be convicted of an offence under the Service Disciplinary Act, known as SDA, under a transitional order made as a result of the repeal of earlier Armed Forces legislation. These amendments simply bring the references in the Bill to these types of convictions in line with the most recent precedent set by Section 65 of the Sentencing Act 2020. Finally, Amendment 120 corrects the reference to Section 80 of the Sentencing Code in the current text of the Bill, which is incorrect, for which I apologise. This amendment corrects the reference to Section 82.

I return to the principal amendment before the Committee, Amendment 114 in the name of the noble Lord, Lord Ponsonby. For the reasons I have set out, I hope that the noble Lord, Lord Rosser, on his behalf, will find himself able to withdraw it.

[Lord Rosser (Lab) [V]]

I thank the Minister for his considered response, which I appreciate. I also thank other noble Lords who spoke in this debate for their contributions, particularly the noble Baroness, Lady Newlove, for adding her name to Amendment 114.

I said at the beginning that this is a probing amendment intended to gain clarity and assurances that where a domestic abuse conviction or caution has been spent, other protections against cross-examination in person would apply to prevent a victim suddenly being open to cross-examination in person by a perpetrator with a history of abuse. In his considered response, the Minister sought to give that clarity and those assurances. I shall reflect further on what he said in response to this probing amendment. In the meantime, I beg leave to withdraw the amendment.

Amendment 114 withdrawn.

Amendments 115 to 120

Moved by

[Lord Wolfson of Tredegar]

115: Clause 63, page 41, line 20, after “conviction” insert “by or”
Member’s explanatory statement
This amendment makes a minor drafting change.

116: Clause 63, page 41, line 24, at end insert “, including—
(i) in the case of proceedings in respect of a service offence, anything that under section 376(1) and (2) of the Armed Forces Act 2006 (which relates to summary hearings and the Summary Appeal Court) is to be treated as a conviction for the purposes of that Act, and(ii) in the case of any other service disciplinary proceedings, a finding of guilt in those proceedings;” Member’s explanatory statement
This amendment provides that “conviction”, in relation to service disciplinary proceedings, includes a finding of guilt and a finding in summary proceedings before an officer that a charge has been proved.

117: Clause 63, page 41, line 32, leave out from “offence” to “(except” in line 33
Member’s explanatory statement
This amendment and the Minister’s amendment at page 41, line 41 expand the definition of “service disciplinary proceedings” to include proceedings in respect of offences under previous armed forces legislation.

118: Clause 63, page 41, line 34, leave out “that Act” and insert “the Armed Forces Act 2006”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 41, line 32.

119: Clause 63, page 41, line 41, at end insert—
““service offence” means—(a) a service offence within the meaning of the Armed Forces Act 2006, or(b) an SDA offence within the meaning of the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059);”Member’s explanatory statement
See the explanatory statement for the Minister’s amendment at page 41, line 32.

120: Clause 63, page 42, line 1, leave out “80” and insert “82”
Member’s explanatory statement
This amendment corrects an incorrect cross-reference.

Amendments 115 to 120 agreed.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

We now come to the group consisting of Amendment 121. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division must make that clear in the debate.

Amendment 121

Moved by

[Lord Rosser]

121: Clause 63, page 44, line 29, at end insert—
“31VA Direction to prohibit direct or indirect engagement: evidence of domestic abuse(1) In family proceedings, where specified evidence is adduced that a person who is a party to the proceedings has been the victim of domestic abuse carried out by another party, the court may give a direction prohibiting the latter party from directly or indirectly engaging with the victim during proceedings, if the court deems any such engagement is causing significant distress to the victim.(2) In this section—“domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2021;“specified evidence” means evidence specified, or of a description specified, in regulations made by the Lord Chancellor.(3) Regulations under subsection (2) may provide that any evidence which satisfies the court that domestic abuse, or domestic abuse of a specified description, has occurred is specified evidence for the purposes of this section.(4) A direction under this section may be made by the court— (a) on an application made by a party to the proceedings, or(b) of its own motion.(5) In determining whether the significant distress condition is met in the case of a party, the court must have regard to, among other things—(a) any views expressed by the victim;(b) any views expressed by the other party;(c) any behaviour by the party in relation to the victim in respect of which the court is aware that a finding of fact has been made in the proceedings or in any other proceedings;(d) any behaviour by the party at any stage of the proceedings, both generally and in relation to the victim;(e) any behaviour by the victim at any stage of the proceedings, both generally and in relation to the party;(f) any relationship (of whatever nature) between the victim and the party.(6) If the court decides that there are no alternative measures to prevent engagement which causes distress, the court must—(a) invite the party to the proceedings to arrange for a qualified legal representative to act for the party during the court proceedings, and(b) require the party to the proceedings to notify the court, by the end of a period specified by the court, of whether a qualified legal representative is to act for the party for that purpose.(7) Subsection (8) applies if, by the end of the period specified under subsection (6)(b), either—(a) the party has notified the court that no qualified legal representative is to act for the party during the court proceedings, or(b) no notification has been received by the court and it appears to the court that no qualified legal representative is to act for the party during the court proceedings.(8) The court must consider whether it is necessary in the interests of justice for the party to be represented by a qualified legal representative appointed by the court to represent the interests of the party.(9) If the court decides that it is, the court must appoint a qualified legal representative (chosen by the court) to represent the party.(10) If the court appoints a qualified legal representative to represent one party, and the other party to proceedings is not represented, the court must consider whether it is necessary in the interests of justice for the other party also to be represented by a qualified legal representative to ensure a fair process.(11) If the court decides that it is necessary to appoint representation under subsection (10), the court must choose and appoint a qualified legal representative to represent the other party.”Member’s explanatory statement
These changes would give courts the discretion to prevent a perpetrator directly or indirectly engaging with a victim during family court proceedings, where such engagement is causing distress, and to appoint a legal representative to represent the perpetrator in court, if that is necessary to prevent distress to the victim.

[Lord Rosser (Lab) [V]]

My Lords, this amendment would build on the provisions on cross-examination that the Government have introduced into the Bill. In particular, it seeks to extend the support available to reflect the structure of the family court. Clause 63 provides the court with the power to appoint a publicly funded qualified legal representative to act for a party who is prohibited from cross-examining a witness in person. The court has the power to prohibit cross-examination where there has been a conviction or charge for a domestic abuse-related offence as well as in cases where it would diminish the quality of the evidence or cause significant distress to the person being cross-examined, an issue to which I think the Minister referred in the discussion on the previous amendment.

These changes are, of course, very welcome. However, the structure of family proceedings differs significantly from that of criminal proceedings. In criminal proceedings the parties will normally come together only once at trial. During the course of family proceedings, both parties are more likely to be in attendance at court for a number of hearings before the cross-examination process. The Bill as drafted would appear to leave parties without support for potentially a number of hearings and would only provide a legal representative for a relatively small proportion of the proceedings. The Magistrates’ Association supports this amendment, and we thank it for its work on these issues.

As my noble friend Lord Ponsonby of Shulbrede indicated at Second Reading, these factors raise two principal issues: first, whether the advocate is able to their job effectively if they are involved in only a small part of the proceedings, and secondly—crucially—whether a litigant in person can navigate the rest of the court process and what impact that has on cases involving domestic abuse and outcomes for children.

Amendment 121 would provide that in family proceedings where there is evidence of domestic abuse, the court may prevent a party directly or indirectly engaging with the victim during proceedings, not only at cross-examination, if the court deems that any such engagement is causing significant distress to the victim. In those cases, the court must invite the party to arrange for a qualified legal representative or appoint a qualified legal representative to represent them. It also provides that if representation is appointed for one party, which would usually be the perpetrator in this case, the court must consider the need to appoint representation for the other party to ensure fair process. This speaks to the wider issue of the lack of legal support in private law proceedings.

In cases which are by their nature incredibly sensitive and can cause significant distress where there is a history of abuse, the court process is complex and difficult to understand for many. Litigants in person can find it difficult to follow the instructions of the court or to comply with all the elements of a court order. I know that it is the experience of my noble friend Lord Ponsonby of Shulbrede that without the right support in place, people will often be driven simply to give up, lose heart and drop out of the legal process. We believe that appropriate legal assistance should be provided throughout this process. Cross-examination is not, as my noble friend put it, the only “flashpoint” in proceedings.

The amendment speaks to a problem that the Government have already recognised and decided to act upon: the need to prevent inappropriate engagement between parties in court and to provide suitable legal representation where there is evidence of abuse. Amendment 121 would simply structure those provisions which the Government already support to reflect accurately the structure of the family proceedings to which they apply, to which I have already referred.

Finally, I shall not detain the Committee by repeating some of the arguments I have just made on the next group in the name of the noble Lord, Lord Marks, but I welcome the aims of his amendments and look forward to that debate. On this amendment, I look forward, I hope, to a positive reply from the Minister.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I congratulate the noble Lord, Lord Rosser, on the excellent way in which he has presented the amendment in place of his noble friend Lord Ponsonby. He has been able to use the great experience of his noble friend in family proceedings in illustration of the amendment.

I strongly support the amendment because I feel certain that, while cross-examination is important, contact between the parties in a family proceedings, although much more spread out, is of critical importance. Things such as the arrangements for children to be with one parent or the other are often extremely difficult to work out. It requires personal and direct contact between the parties, because it is next to impossible to accommodate the needs of the parties without it. It is therefore extremely important that this is done with a fair amount of detail to allow representation to be made.

That is, in principle, already part of the government Bill, but the Magistrates’ Association—of which the noble Lord, Lord Ponsonby, is a good example—has great experience of how it should work, and the amendment seeks to work that out in some detail. I warmly support it because it is very well done. As I said on a previous occasion, the fact that the Magistrates’ Association supports it is a powerful reason for us to support it too.

[Baroness Hamwee (LD) [V]]

My Lords, my noble friend Lord Marks will speak to most of the amendments regarding court proceedings, but I am glad to be able to say a word on this one. I acknowledge that the Government recognise the need for measures to support victims of domestic abuse in various proceedings. Like the noble and learned Lord, Lord Mackay, I think the very fact that Amendment 121 was tabled by a practitioner who has already shared with the Committee a lot of extremely useful experience, as he does on all occasions, and from the Magistrates’ Association, whose briefings I have always found very useful, pretty much makes the point. It is certainly very persuasive.

As I read it, the amendment would address what is meant by “engagement” in a particular context. As the noble Lord, Lord Rosser, explained—his explanation was clear—in family cases the proceedings are generally not a single event but comprise a series of hearings. They are quite unlike proceedings in the criminal court or the civil court, where a discrete claim is dealt with. To use a bit of current jargon, I read this as enabling the court to be agile in applying, as it goes along, appropriate measures and making directions as it becomes clear that they are needed.

In an attempt not to oppose the amendment but to develop it, I have been wondering how it would—or maybe will—operate in practice. One assumes that there will be a need to find a lawyer for whatever reason, probably financial, and that the parties will have already considered that. Who will pay the lawyer, and pay enough for them to do a complete job, not just coming in at the last minute but understanding the whole background to the proceedings and taking full instructions? If the lawyer is appointed by the court, to whom is he responsible? Is the person he represents a client for all purposes? I absolutely take the point about the difficulty that litigants in person have, so finding ways to assist can only be to the good. I hope that these proposals can be taken forward.

14:45

[Lord McConnell of Glenscorrodale (Lab) [V]]

My Lords, I thank my noble friend Lord Rosser for so comprehensively outlining the purpose behind Amendment 121 and the very strong case for it. I also thank the noble and learned Lord, Lord Mackay, for his clear explanation.

It is of course important from the legal perspective to look at the different situations in the family courts and the way in which different stages in the proceedings need to be accommodated. I also feel that the amendment is important because of the potential human impact of the absence of such a provision. Legal representation is important, as is the ability of the court to make determinations where distress has been, or could be, caused to the victim. It is also important to anticipate the impact on victims who might choose to go down this route if such a provision is not in place.

The fear and intimidation involved in advance of a decision to begin proceedings in family courts, or to continue with them after they have started, can be very daunting for any victim but perhaps in particular for a victim of domestic abuse. Therefore, putting these provisions in place would help encourage those who need to take a stand and make the move, trying to get out of their current circumstances and into a better place for them and the children. It could encourage them rather than put them off continuing proceedings or beginning them in the first place.

I want to ask a specific question about the impact on children. Over the years, I have seen many cases where intimidation at this stage has not necessarily been directed at the former partner or wife of the abuser, but at the children in order to indirectly intimidate the former partner or wife. Although we have clearly indicated in Clause 3 that children should be properly recognised as victims of domestic abuse, I would like the mover and supporters of the amendment to clarify that, either directly or indirectly, children affected by such distress would be covered by the provisions at the start of the proposed new clause.

For example, would the definition of children as victims mean that any distress caused to children fell under this provision? If not, would intimidation of children be deemed an indirect cause of distress? If the Government are not content to include the amendment or similar provisions in the final Bill, I would be particularly interested to hear from the Minister, on their behalf, how children who might be affected in this way around the family courts, whether outside or even within the court setting if they have been asked to play some kind of role by either their parent or the court, will be protected if this provision is not in place. I look forward to hearing the Minister’s response.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, we support this amendment for the reasons given by the noble Lord, Lord Rosser, as amplified by the noble and learned Lord, Lord Mackay, my noble friend Baroness Hamwee and the noble Lord, Lord McConnell of Glenscorrodale.

This amendment recognises that in cases involving domestic abuse, just as in any litigation, engagement between the parties is not limited to conducting the case, giving evidence, cross-examining witnesses and making submissions to the judge. The noble and learned Lord, Lord Mackay, pointed out that the inadequacy of arrangements that govern cross-examination alone make such arrangements difficult to justify.

There is often a need for the parties to consider and discuss the conduct and progress of the case, as the noble and learned Lord, Lord Mackay, pointed out. That is usually done through their advocates. Yet when the parties are perpetrator and victim of domestic abuse, and are unrepresented, the need for engagement can become an occasion for intimidating behaviour or bullying of the victim by the perpetrator. That need not even be deliberate, though it often is. Even if intimidation is not explicit in court, it may be effected by implied threats of what might happen later, or even by fear on the victim’s part—even if without justification —of what might happen later.

As discussed in earlier groups, the mere presence of the parties together in court can cause distress, intimidation, or trauma to victims. The outcome can be that victims are deterred from bringing proceedings at all. The experience of the proceedings can be grossly traumatic, to the extent of causing lasting harm, and just outcomes can be made that much more difficult to achieve. So, it is completely right that the court should be able to prohibit engagement by a party that unduly distresses the victim in the way set out in this amendment, whether that engagement be direct by the perpetrator or indirect through others. Yet, if the parties have no means to engage at all, there may be opportunities missed for resolving conflict or, at least, for making the issues clearer and enabling the court to achieve safer outcomes.

In cases where the parties are not represented, it is obviously sensible for there to be provision for representation to be arranged. As the amendment proposes, that should involve, in appropriate cases, the instruction of a court-appointed lawyer—not just for the perpetrator but for the victim as well. That is what the amendment proposes and I firmly believe it is right to do so. For my part, I believe that justice would be best done by ensuring that full legal aid is available for both parties to domestic abuse proceedings throughout those proceedings, which often last through several hearings, as the noble Lord, Lord Rosser, my noble friend Baroness Hamwee and the noble Lord, Lord McConnell, have said. The noble Lord, Lord McConnell, also highlighted the real risk of deterring litigants from bringing or pursuing proceedings once they are under way, by the absence of arrangements for representation.

This amendment does not go as far as we would like, but I know many noble Lords believe that full legal aid for both parties should be the outcome. Meanwhile, it would fill an important gap by preventing intimidation of victims by perpetrators during the course of proceedings, while keeping the door open to engagement between lawyers, which may smooth a path to resolution.

[Lord Wolfson of Tredegar (Con)]

My Lords, as the noble Lord, Lord Rosser, has explained, this amendment —to which my noble and learned friend Lord Mackay of Clashfern has added his, if I may respectfully say, very weighty name—seeks to expand the scope of the prohibition of cross-examination provided for in Clause 63 by prohibiting the perpetrator from engaging directly or indirectly with the victim during proceedings where that engagement would cause them significant distress. It goes on ultimately to provide for the potential appointment of a legal representative, chosen by the court, to represent both parties to ensure a fair process in the interests of justice in such cases. I can assure the Committee, in particular in response to the points made by my noble and learned friend Lord Mackay of Clashfern and others, that because this amendment has been supported by the Magistrates’ Association, we have given it very careful consideration.

As the noble Baroness, Lady Hamwee, explained, I am as every bit as concerned as her, and indeed the noble Lord who is proposing the amendment, to ensure that domestic abuse victims are adequately protected in the family courts. It is for that reason that the Government are already taking decisive steps to act on the recommendations of the Expert Panel on Harm in the Family Courts, in response to which we published our implementation plan in June 2020.

The Bill contains various measures designed to protect domestic abuse victims in family proceedings and across the other jurisdictions. In that context, I bear in mind the point made by the noble Lord, Lord McConnell of Glenscorrodale: the human impact that domestic abuse has, and that it can require some bravery to go to and appear in court in those circumstances, a point also made by the noble Lord, Lord Marks. Therefore, within the court environment, our provisions on special measures made it clear that the victims of domestic abuse and other parties or witnesses are eligible for special measures such as a screen during proceedings, where the court is satisfied that the quality of their evidence is likely to be diminished due to their vulnerability. In that context, on the point put to me by the noble Lord, Lord McConnell of Glenscorrodale, regarding the position of children, Clause 3(2) provides that any reference in the Bill to a victim of domestic abuse

“includes a reference to a child who … sees or hears, or experiences the effects of, the abuse, and … is related to A or B.”

Therefore, the Bill is structured very much with victims of domestic abuse, who may include children, firmly in mind.

It is not entirely clear from the noble Lord’s amendment whether the intention is that “direct or indirect engagement” during proceedings be confined to the court setting, by which I mean what goes on in the courtroom itself, or extend more widely for their duration, as set out in debate by my noble and learned friend Lord Mackay of Clashfern and repeated by the noble Lord, Lord Marks of Henley-on-Thames. There is often a need for what my noble and learned friend called personal and direct contact between parties in such proceedings. In that regard, one must bear in mind that under Part 3 of the Family Procedure Rules 2010, the court can make a participation direction. That can include the use of special measures, which are a series of provisions to help a party or witness to participate or give evidence in court proceedings. That is a range of measures available both to parties and witnesses to enable them to participate in an appropriate manner.

Beyond that, the courts have a range of protective orders, such as non-molestation orders and restraining orders, that can be made to protect victims when they are not within the confines of the court building. In addition, when introduced by the Bill, domestic abuse protection orders can be used to protect victims of domestic abuse outside the courtroom during proceedings. That is because the DAPO brings together the strongest elements of the existing protective orders into a single comprehensive and very flexible order that we believe will provide more effective and longer-term protection than the existing protective orders for victims of domestic abuse and their children. I underline the point that there may be circumstances in which children are also victims. So, for example, if children are giving evidence inside court, special measures may well be applicable and the prohibition on cross-examination may also apply.

15:00

I turn to one of the central points made by the amendment. It deviates significantly from the underlying principles underpinning Clause 63 in relation to cross-examination. I shall make three short points, some of which have been anticipated by the noble Baroness, Lady Hamwee. First—and I suspect I will be dealing with this point in more detail in the next group of amendments—the clause is explicit that any legal representative appointed by the court to carry out cross-examination will not be responsible to the party in whose place they ask questions. By contrast, in the amendment it is the clear intention that the advocate will represent the parties where engagement is prohibited and will owe them all the duties of a lawyer to his or her client.

The second deviation from the principles underlying Clause 63 is that the steps that must be followed before the court appoints a legally qualified representative are different. There is no requirement in the amendment that the court must consider alternatives to legal representation before inviting the parties to do so. By contrast, the clause makes that an express requirement.

Thirdly, and significantly, the amendment does not make any provision as to how a legal representative appointed by the court where engagement is prohibited will be paid. There is no indication as to whether they are to be paid by the parties or, as will be the case for those appointed to conduct cross-examination where that is prohibited by the party, from the public purse.

In that context, the noble Lord, Lord Rosser, raised the broader issue of funding. I probably should not go into this in too much detail, given the narrower confines of this amendment, but the noble Lord will know that we are currently conducting a review of the means test with regard to legal aid, as part of which we are specifically considering the experiences of victims of domestic abuse. We have made a public commitment to look at the capital thresholds for victims of domestic abuse where these apply. However, at the moment, the legal aid agency is able to apply for an eligibility waiver for victims of domestic abuse who are applying for an injunction or other order for protection. Therefore, an applicant for such an order may be eligible for legal aid even if they have income or capital above the thresholds in the means test, although they may have to pay a financial contribution towards their legal costs. That review is ongoing, and we would seek to implement any final recommendations as soon as practicable after a public consultation.

Coming back to the main thrust of the amendment, however, for the reasons that I have set out I do not believe that a new prohibition on direct or indirect engagement is necessary, given the current and new protections in the Bill. However, we will monitor their effectiveness and continue to assess whether any further measures should be necessary. Therefore, irrespective for these purposes of the points that I have mentioned of a lack of clarity in the amendment as to how legal representatives would be remunerated as well as the lack of a requirement to consider alternatives to legal representation, for the reasons that I have set out as points of principle, I invite the noble Lord to withdraw the amendment.

[Lord Rosser (Lab) [V]]

I again thank the Minister for his considered response, particularly his comments at the end, which clarified in my mind the basis of the Government’s lack of enthusiasm for the amendment. As the Minister has clarified, the Government do not believe that the terms of the amendment are needed because the issues raised are covered by other measures in the Bill or existing provisions. It is not a case of certain parts of the amendment not being particularly well worded or the wording leaving certain issues unresolved.

I thank all noble Lords who have spoken in this debate for their contributions. I particularly thank the noble and learned Lord, Lord Mackay of Clashfern, for adding his name to the amendment. Clearly, we will want to reflect further on what the Minister has said, particularly the reasons for not accepting the amendment—namely, that the issues raised are covered by other measures in the Bill and by existing provisions. We will want to reflect on that and then determine whether to bring this matter back at a later stage. I beg leave to withdraw the amendment.

Amendment 121 withdrawn.

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

My Lords, we now come to the group beginning with Amendment 122. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate, and that anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Amendment 122

Moved by

[Lord Marks of Henley-on-Thames]

122: Clause 63, page 45, leave out lines 16 and 17 and insert—
“(7) A qualified legal representative appointed by the court under subsection (6) is responsible to the party, but must cross-examine the witness having regard to such directions as the Court may give to protect the witness from significant distress or to prevent the quality of the witness’s evidence from being diminished.”Member’s explanatory statement
This amendment is intended to maintain the responsibility of the legally qualified representative to the party in whose interests the cross-examination is conducted while ensuring it is conducted with proper regard for risk of distress to the witness and risk that the quality of the witness’s evidence might be diminished.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, this group of amendments addresses the role of a legally qualified representative appointed by the court to conduct cross-examination under Clause 63 in family proceedings or Clause 64 in civil proceedings. The amendments also address the need for the availability of legal aid for both parties in domestic abuse proceedings.

Dealing first with those amendments relating to the role of court-appointed legal representatives, in each such case a party, who typically, but not always, will be the perpetrator, is prohibited under the Bill from cross-examining a witness directly. In any such case, the court will have considered whether there is a satisfactory alternative means of enabling the witness to be cross-examined or of obtaining the evidence that the witness would have given without cross-examination. For the moment, I find difficulty in seeing exactly how that would work unless there were other witnesses who could give evidence to the same effect as the evidence that the witness might have given.

If the court cannot find alternative ways of getting the witness to give evidence before the court, it will have invited the party who, but for the prohibition, would have conducted the cross-examination to instruct a lawyer within a specified time to conduct the cross-examination instead. If the party does not instruct such a lawyer—usually, one supposes, because of financial constraints—the court will consider appointing a qualified legal representative

“to represent the interests of the party”

to conduct the cross-examination

“in the interests of the party”.

The proposed provisions are complicated but unobjectionable so far. However, I am concerned by the proposals, in both family and civil proceedings, that such an advocate

“is not responsible to the party”,

a point mentioned by the noble Lord, Lord Wolfson, in the last group but which he politely deferred for consideration to this one. I regard this as a dangerous precedent that is inimical to a fundamental principle of our court process, which is that the advocate owes a duty to his client, although that duty is at all times subject to the duty that the advocate owes to the court.

The analogy that applies to what is proposed here is with special advocates, who are appointed for cases before the Special Immigration Appeals Commission or various other cases where issues of national security are involved. In such cases, the reason why those appointed as special advocates do not carry a responsibility to the persons whose interests they represent is that they are specifically prohibited from disclosing to those persons the security-sensitive material that is being disclosed to them—in other words, the special advocates are effectively sworn to secrecy. In those national security cases the special advocates cannot take instructions upon the secret material disclosed to them, nor can they consider with those whom they represent how to deal with or respond to such material. In those circumstances they have an independence that is treated as precluding a responsibility to the persons whose interests they represent.

The position is quite different here. No issues of national security are involved. Secrecy is not an issue. No material is withheld from the party represented. There is no bar on full discussion between the advocate and that party. Indeed, if justice is to be done, there is an imperative for the advocate to take full instructions and to consider, in the light of the evidence and the party’s account of the facts, what questions should be asked.

The starting point has to be that the advocate owes a responsibility to the client and I see no reason to depart from that. The advocate should, for example, owe the client a duty of care, and a duty to take instructions accurately, read the papers carefully and approach the case on the basis of the client’s instructions. The advocate should be answerable to the client if he or she performs negligently, does not do the work, or fails to understand or appreciate the import of the evidence. Of course there will be some questions that it would be improper for the advocate to ask. In that event, it is for the advocate to advise the client and, if necessary, to seek the direction of the judge before putting such questions. It should be for the judge to determine what questioning is permissible and appropriate.

That is why my Amendments 122 and 127 would provide for the cross-examination to be conducted subject to

“such directions as the Court may give to protect the witness from significant distress or to prevent the quality of the witness’s evidence from being diminished.”

Those are the considerations that the court has to have regard to in appointing the advocate. In most cases, I do not believe that directions such as that are likely to be necessary. The intimidation of a victim in these cases usually arises from the presence of the perpetrator as cross-examiner and/or the style of his cross-examination. Once a sensitive advocate is conducting the cross-examination, attuned to the vulnerability of the witness and the advocate’s duty to the court, the risk of intimidation is reduced.

However, if there are areas where the advocate advises that particular questions or lines of questioning cross the line, that is usually on the ground that such questions are irrelevant or unhelpful. The party will usually accept the advocate’s advice, but if there are lines of questioning where the party persists in wishing to pursue questions that the advocate regards as inappropriate, it should be for the judge, not the advocate, to decide whether the questions may be asked. There is no good reason for removing the advocate’s responsibility to the client, fundamentally undermining that responsibility.

I have had the opportunity to discuss this issue with the noble Lord, Lord Wolfson, and I am grateful to him for the attention he has given to it. I understand the Government’s position to be that where lawyers are appointed to conduct cross-examination in circumstances such as these, such lawyers should, in a way, be independent, so that they may decline to ask questions which the party whose interests they represent wishes to have put to the witness. They should be able to say to the client, “I’m not putting that”, without having to be answerable to the client for that decision. At first blush I see the force of that, but on analysis it is quite unfair, because the party represented is in fact denied true representation, and such an arrangement blurs the function of the judge and the advocate, to which I referred. In proceedings of all types, judges will frequently rule questions out of order. That is all part of the trial process and I see no basis for changing it here.

Amendments 123 and 128 raise questions of assistance by court-appointed advocates and legal representation in domestic abuse proceedings more generally. They make broadly two points. The first is that an appointment of an advocate for the limited purpose of conducting a single cross-examination is unlikely significantly to enhance either the fairness of the proceedings or the chance of their leading to a just outcome—a point touched on in the last group.

The answer to this difficulty is that the court should be able to ensure that the advocate will remain in place for as long as needed in the proceedings to assist both the parties and the court to deal with the case justly, in line with the overriding objective, having regard, in family cases, to dealing with it justly and to any welfare issues involved. One can imagine the frustration that judges would feel when, having had the assistance of an experienced court-appointed advocate for the cross-examination of the victim, the advocate’s role in the case is brought to an end and the judge is left with the parties in court in as conflictual a situation as they were before the proceedings started and with no help in resolving it.

15:15

My second point is that the only real, lasting and just way to ensure that domestic abuse proceedings are genuinely fair is to ensure that legal aid is available to both parties. My amendments would allow the Lord Chancellor to ensure that, where the court appoints a lawyer for a party, regulations can provide for legal aid to be granted to either or both the parties for the remainder of the proceedings, irrespective of the restrictions contained in the LASPO Act, which is now under review.

A more generous view of legal aid in domestic abuse proceedings, and of the evidential and financial thresholds to qualify for it, has long been called for by the legal professions and almost everyone who knows this field. The review is of course helpful, but we fear it may not go far enough. I hope it does and that the Minister helps it on its way, but meanwhile I urge the Government to accept the amendments, or at least to consider them at this stage, and to come back on Report with proposals that meet our concerns. I beg to move.

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

The noble Lord, Lord Naseby, who was due to speak next, is still in the debate in Grand Committee, so I call the Minister.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Lord, Lord Marks, for setting out the rationale for these amendments. As he said, I deferred my comments on the particular point of an advocate’s duty to this group because his amendments directly raise that issue. I am grateful to him for the discussions we had about this matter, as indeed we have had about several matters arising from the Bill.

Amendments 122 and 127 would have the same effect in relation to a qualified legal representative appointed by the court to conduct cross-examination in family and civil proceedings respectively. It is the Government’s intention that such a court-appointed representative is not responsible to any party. They are, in effect, appointed by and responsible to the court in relation to their conduct of the cross-examination, having regard to guidance issued by the Lord Chancellor in connection with this role under what we intend should become Section 31Y(1) of the Matrimonial and Family Proceedings Act 1984.

As I think the noble Lord, Lord Marks, accepts, the amendments would alter fundamentally the representative’s role by making them responsible to the party who has been prohibited from carrying out such cross-examination. While the tabled amendments contain safeguards to counter the resulting tension between being responsible to the prohibited party on the one hand and needing to protect domestic abuse victims on the other by requiring the representative to have regard to protective directions issued by the judge, this does not affect the Government’s view that, as a matter of principle, the representative who has been appointed by the court should not be responsible to the party. That is particularly the case when that party could have, but has not, appointed his own lawyer. Had he done so, a court-appointed lawyer would not have been required and the lawyer appointed by him would have owed him a duty.

Therefore, the Government do not want this to become a client-lawyer relationship. The advocate is appointed for only one function: to ensure that the best evidence is obtained fairly from the witness in cases where the party is prohibited from conducting the cross-examination by themselves. Altering this and introducing such a relationship between the party and the advocate would, in the Government’s view, be a mistake.

The rules pertaining to the advocate scheme will be set out in statutory guidance and relevant procedural rules. Consistent with what I have been explaining to the Committee, the focus will be on ensuring that the function of a cross-examination is carried out—that the witness is questioned on the evidence that they have provided. Before these provisions are commenced, we will work with relevant stakeholders to develop and finalise statutory guidance, to be issued by the Lord Chancellor, for the appointed legal representatives to assist them in discharging this role. We will work with the appropriate rule committees to develop suitable court rules and practice directions to provide a clear structure and process for the operation of these provisions.

For those reasons, we take issue with the proposal in the amendment. Although I hear what the noble Lord, Lord Marks, said about SIAC and court-appointed advocates there, those are completely different circumstances and there is no read-across from SIAC to these provisions. The way that the Bill is set out reflects the Government’s deliberate intention and the clauses have been designed with this in mind.

The framework for the provision of publicly funded legal representation is set out in the LASPO Act. While I have listened carefully to the arguments made on this point, both today and in previous discussions, I do not agree that we should mix the different purposes of LASPO and these clauses as has been proposed. As anticipated by the noble Lord, Lord Marks, I refer to the review that I mentioned in the last debate.

Amendments 123 and 128 relate to the provision of legal aid. Legal aid is available for family cases where there is evidence of abuse, subject to domestic violence, or child abuse evidence requirements, and the relevant means and merits tests. We have expanded the acceptable forms of evidence and removed all time limits on providing that evidence. As I have said, we are also reviewing the means test. The Government are clear that victims of domestic abuse must have access to the help that they need, including to legal aid. The review of the means test is assessing the effectiveness with which that test protects access to justice. As I said in the last debate, we are specifically considering the experience of victims of domestic abuse. I will not repeat the other points I made in that context in the previous debate.

However, legal aid may also be available through the exceptional case funding scheme, where a failure to provide legal aid would breach or risk breaching the ECHR or retained enforceable EU rights. As I have explained, the Bill includes provisions that give the court a power, in specified circumstances, to appoint a publicly funded legal representative to conduct cross-examination. Where a prohibition on cross-examination applies, the court would first consider whether there are alternatives to cross-examination and invite the party to appoint a legal representative to conduct the cross-examination. In circumstances where the party does not, the court considers whether it is in the interests of justice so to appoint. Therefore, publicly funded legal representation is intended to conduct the cross-examination, but not to go beyond it. That is the sole reason why the advocate is appointed.

In that context, we must appreciate the need to protect against unnecessary expenditure of public funds or alteration of the legal aid regime without a wholesale and proper examination of the ramifications of doing so. In circumstances where this provision for a publicly funded advocate is put in the Bill for a limited and specific—if I can still use that phrase—purpose, it would be wrong in principle for us to conduct a review of legal aid provisions in Committee.

I fear that I may not have been able to persuade the noble Lord, as I was not able to persuade him earlier, of the merits of the Government’s approach. I am sure he will tell me that I have not, but I hope that I have been able to explain the Government’s approach and thinking on this issue. In those circumstances, I invite him to withdraw the amendment.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, unquestionably the Minister—to whom I am very grateful, for both his engagement and his considered and careful response—is right about one thing, which is that he has not convinced me of the difference in responsibility to the client between court-appointed advocates and normal lawyers. I accept that the role of legal representative would be altered by my amendments, and that is all to the good.

One point made by the Minister can be considered in a way that he did not. It is a precondition to the appointment of a legal representative by the court that the client or party who would have conducted the cross-examination, but for the prohibition, should have been given the opportunity to instruct his own lawyer. That lawyer would have had full responsibility to the client in the normal way—full duty of care, answerable in negligence and everything else. Generally, Members of the House will appreciate that the reason that that condition is not often met—in other words, the client does not appoint a lawyer—is lack of funds, not that he or she, usually he, does not wish for the lawyer to have a responsibility to the client. There is very little distinction to draw between the two cases, apart from the fact that the rich client gets the lawyer and the poor client has a court-appointed lawyer.

The Minister referred to the safeguards that I built into the amendments in their directions to the judge—

“such directions as the Court may give to protect the witness from significant distress or to prevent the quality of the witness’s evidence from being diminished.”

There may be further room for discussion about those directions and the guidelines within which cross-examination by a lawyer with a responsibility to the client could take place. I will carefully read the guidance that he mentions by which court-appointed lawyers will conduct their cross-examinations.

I completely reject the Minister’s explanation that SIAC involves different issues, as a justification for removing the responsibility. It is precisely because SIAC special advocates and their appointment involve different issues that the responsibility is removed. I explained that in opening. That point does not seem to have been treated with full understanding.

Of course I will withdraw this amendment to enable further review. The point about legal aid is one of accessibility. We know that there is a review under way and I accept that we should not be reviewing this question in Committee, but the problem is one of evidential and financial accessibility. Until both parties can be represented in domestic abuse proceedings, it is difficult to see that proper representation will be achieved. With those points, I beg leave to withdraw the amendment.

Amendment 122 withdrawn.

Amendment 123 not moved.

Clause 63, as amended, agreed.

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

My Lords, we now come to the group beginning with Amendment 124. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate and that anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

15:30

Clause 64: Prohibition of cross-examination in person in civil proceedings

Amendment 124

Moved by

[Lord Marks of Henley-on-Thames]

124: Clause 64, page 46, line 39, at end insert—
85EA Prohibition of cross-examination in person: victims of offences(1) In civil proceedings, no party to the proceedings who has been convicted of or given a caution for, or is charged with, a specified offence may cross-examine in person a witness who is the victim, or alleged victim, of that offence.(2) In civil proceedings, no party to the proceedings who is the victim, or alleged victim, of a specified offence may cross-examine in person a witness who has been convicted of or given a caution for, or is charged with, that offence.(3) Subsections (1) and (2) do not apply to a conviction or caution that is spent for the purposes of the Rehabilitation of Offenders Act 1974, unless evidence in relation to the conviction or caution is admissible in, or may be required in, the proceedings by virtue of section 7(2), (3) or (4) of that Act.(4) Cross-examination in breach of subsection (1) or (2) does not affect the validity of a decision of the court in the proceedings if the court was not aware of the conviction, caution or charge when the cross-examination took place.(5) In this section—“caution” means—(a) in the case of England and Wales—(i) a conditional caution given under section 22 of the Criminal Justice Act 2003,(ii) a youth conditional caution given under section 66A of the Crime and Disorder Act 1998, or(iii) any other caution given to a person in England and Wales in respect of an offence which, at the time the caution is given, the person has admitted;(b) in the case of Scotland, anything corresponding to a caution falling within paragraph (a) (however described) which is given to a person in respect of an offence under the law of Scotland;(c) in the case of Northern Ireland—(i) a conditional caution given under section 71 of the Justice Act (Northern Ireland) 2011, or(ii) any other caution given to a person in Northern Ireland in respect of an offence which, at the time the caution is given, the person has admitted;“conviction” means—(a) a conviction before a court in England and Wales, Scotland or Northern Ireland;(b) a conviction in service disciplinary proceedings (in England and Wales, Scotland, Northern Ireland, or elsewhere);(c) a finding in any criminal proceedings (including a finding linked with a finding of insanity) that the person concerned has committed an offence or done the act or made the omission charged;and “convicted” is to be read accordingly;“service disciplinary proceedings” means—(a) any proceedings (whether or not before a court) in respect of a service offence within the meaning of the Armed Forces Act 2006 (except proceedings before a civilian court within the meaning of that Act); (b) any proceedings under the Army Act 1955, the Air Force Act 1955, or the Naval Discipline Act 1957 (whether before a court-martial or before any other court or person authorised under any of those Acts to award a punishment in respect of an offence);(c) any proceedings before a Standing Civilian Court established under the Armed Forces Act 1976;“specified offence” means an offence which is specified, or of a description specified, in regulations made by the Lord Chancellor.(6) The following provisions (which deem a conviction of a person discharged not to be a conviction) do not apply for the purposes of this section to a conviction of a person for an offence in respect of which an order has been made discharging the person absolutely or conditionally—(a) section 14 of the Powers of Criminal Courts (Sentencing) Act 2000;(b) section 80 of the Sentencing Code;(c) section 187 of the Armed Forces Act 2006 or any corresponding earlier enactment.(7) For the purposes of this section “offence” includes an offence under a law that is no longer in force.85EB Prohibition of cross-examination in person: persons protected by injunctions etc(1) In civil proceedings, no party to the proceedings against whom an on-notice protective injunction is in force may cross-examine in person a witness who is protected by the injunction.(2) In civil proceedings, no party to the proceedings who is protected by an on-notice protective injunction may cross-examine in person a witness against whom the injunction is in force.(3) Cross-examination in breach of subsection (1) or (2) does not affect the validity of a decision of the court in the proceedings if the court was not aware of the protective injunction when the cross-examination took place.(4) In this section “protective injunction” means an order, injunction or interdict specified, or of a description specified, in regulations made by the Lord Chancellor.(5) For the purposes of this section, a protective injunction is an “on-notice” protective injunction if—(a) the court is satisfied that there has been a hearing at which the person against whom the protective injunction is in force asked, or could have asked, for the injunction to be set aside or varied; or(b) the protective injunction was made at a hearing of which the court is satisfied that both the person who applied for it and the person against whom it is in force had notice.85EC Prohibition of cross-examination in person: evidence of domestic abuse(1) In civil proceedings, where specified evidence is adduced that a person who is a witness has been the victim of domestic abuse carried out by a party to the proceedings, that party to the proceedings may not cross-examine the witness in person.(2) In civil proceedings, where specified evidence is adduced that a person who is a party to the proceedings has been the victim of domestic abuse carried out by a witness, that party may not cross-examine the witness in person.(3) In this section—“domestic abuse” has the meaning given by sections 1 and 3 of the Domestic Abuse Act 2021;“specified evidence” means evidence specified, or of a description specified, in regulations made by the Lord Chancellor. (4) Regulations under subsection (3) may provide that any evidence which satisfies the court that domestic abuse, or domestic abuse of a specified description, has occurred is specified evidence for the purposes of this section.”Member’s explanatory statement
This amendment and the other amendments to Clause 64 in the name of Lord Marks of Henley-on-Thames would allow for the same prohibition of direct cross-examination in civil proceedings as that which is available in family proceedings.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, could I have a moment? I apologise for the delay. Following so closely on from my last speech, it was difficult to see where we were.

Having spent some considerable time this afternoon introducing my amendments in groups 1 and 4, I will be relatively brief in introducing this group. The amendments are intended to extend to all civil cases the same protection from direct cross-examination by a party as is to be afforded in family cases to victims and vulnerable witnesses where certain conditions are met.

The reason for my relative brevity in this group is that the principles upon which I contended in the first group that special measures should be available on the same basis for civil proceedings as for family proceedings apply with equal force to the prohibition of direct cross-examination. Therefore, I will not dwell on them again, save to make the point once again that there is no justifiable distinction to be drawn between the trauma likely to be caused to the vulnerable by direct cross-examination in civil cases and such similar trauma as may arise in family cases.

However, because the proposals are complex, the amendment is long. Clause 63 inserts new Clauses 31Q to 31U into the Matrimonial and Family Proceedings Act 1984, which broadly prohibit direct cross-examination in family cases in a number of circumstances. First, direct cross-examination by someone convicted of, cautioned for or charged with a specified offence—that is, an offence specified by the Lord Chancellor—of a witness who is a victim or alleged victim of that offence is prohibited and, importantly, vice versa. No victim or alleged victim of such an offence may directly cross-examine the perpetrator or alleged perpetrator. Secondly, direct cross-examination by either party of the other is prohibited in cases where one party has obtained an on-notice protective injunction which is in force at the time of the proceedings. Thirdly, in cases where specified evidence—that is, evidence of a description specified by the Lord Chancellor in regulations—is adduced that a witness in proceedings has been the victim of domestic abuse carried out by a party to the proceedings, that party may not directly cross-examine that witness. Correspondingly, where there is such evidence that a party to proceedings has been the victim of domestic abuse carried out by a witness, that party may not directly cross-examine that witness.

What is important is that these three categories of cases involve a prohibition that is absolute. That offers vulnerable parties and witnesses an assurance that there will be no direct cross-examination that offends against those provisions in any of the cases covered by the prohibition.

Finally, in other cases not coming within the first three categories of cases, the court may prohibit—that is, it has the power to prohibit—direct cross-examination of any witness by a party if the court takes the view that two conditions are met. The first condition is that the quality of the witness’s evidence would be likely to be diminished if direct cross-examination were permitted and improved if it were prohibited. The second condition is that the witness’s distress would be more significant under direct cross-examination by the party than were the cross-examination differently conducted. Before prohibiting direct cross-examination in such a case, the court must be satisfied that the prohibition would not be contrary to the interests of justice.

So while those provisions may be complex, they are, by and large, admirable, as they cater effectively for all circumstances where a vulnerable witness is liable to be directly cross-examined by a party to proceedings of whom she or he is plainly frightened, or where a vulnerable party may be put in the position of being obliged to cross-examine directly a witness who has in the past abused that party. It goes without saying that such a cross-examiner may be afraid of the consequences of putting questions to such a witness. But the important point to note is that the first three categories of case involve mandatory prohibition.

In civil cases, however, for a reason that once again I do not understand, there is no provision in Clause 64 of the Bill for the mandatory prohibition of direct cross-examination in any of the categories 1 to 3—that is, commissioner-specified offences, a mandatory injunction in force protecting a party, or evidence of domestic abuse by a party against a witness or a witness against a party. All that remains is the fourth category of protection: the discretionary and conditional protection offered in family cases that do not fall into the first three categories.

Again, I understand from the Minister—who has been keen on this issue, as on all others, to listen to noble Lords and to help—that the Government’s position is that civil proceedings lack the intimacy of family proceedings and so do not merit the same protection for vulnerable witnesses and parties. However, as I said in the earlier group, there are literally thousands of civil cases—as the noble Lord recognised—of many types involving vulnerable parties and witnesses, and exactly the same considerations apply in those civil cases as apply in family cases. I would suggest that the parties and witnesses involved in them should be entitled to exactly the same protection from direct cross-examination on the same basis as in family cases. I mention before closing that this view is shared by the Civil Justice Council, the Law Society, Refuge, Women’s Aid, and many others.

I invite the Government to reconsider whether they wish to stick with this illogical distinction or to instead come back on Report having ironed it right out of the Bill. I beg to move.

[Baroness Bennett of Manor Castle (GP) [V]]

[Inaudible.]

[Lord Parkinson of Whitley Bay (Con)]

I am afraid we cannot hear the noble Baroness. She might still be on mute.

[Baroness Bennett of Manor Castle (GP) [V]]

Let me try an alternative technology—apologies, my Lords.

It is a great pleasure to follow the noble Lord, Lord Marks of Henley-on-Thames, for the second time, on this group of amendments, on which it is clear that he has done a great deal of work, and for which he deserves great thanks. I am simply here again as a support act for the reasons that I set out in the first group of amendments we addressed today. I think the arguments of justice and compassion are the same in this group of amendments as they were in that first group.

Sitting in many courtrooms over the years as a journalist, looking at the witnesses, you think about what the experience of being a witness is like. Earlier, I used the theoretical but eminently likely example of civil proceedings arising out of the collapse of a farm business that is also associated with domestic abuse. Later on, we will be talking about attempts to insert into the Bill an offence of non-fatal strangulation or suffocation. If we think about the actual experience of a witness who suffered that kind of assault and is then expected to stand in a courtroom and look in the eye the person responsible for that assault, and who is expected to look strong, stand tall and not seem what anyone might determine as shifty or uncertain, we can imagine the pressure that puts on such a witness.

In his answer to the first group of amendments, the Minister said, “Well, there is always judge’s discretion.” We know from many other debates in your Lordships’ House on the Bill that much domestic abuse is not fully reported. Indeed, we know that non-fatal strangulation and suffocation are sometimes recorded simply as common assault. Full information about what witnesses may have been subjected to may not be available and full reporting may not have happened, so it may not be open to a judge to be in the right place to rule on this. There should be an automatic protection available to witnesses who need it.

I will be brief because we have a great deal to do, but I believe that this is an important set of amendments, and I really hope that the Government will reconsider.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I will start by making a general point about an issue that has been concerning me regarding the amendments on cross-examination on special measures. I apologise that I am not a lawyer, and if I have not quite have grasped what Committee stage is. I could have been jumping up to speak to all these amendments, so I have bundled my comments into one. I hope that will work. If I have got it wrong, I will not do it again.

I have found the noble Lord, Lord Paddick, hugely helpful and insightful throughout these Committee discussions, but something he said on Monday troubled me. He said:

“My Lords, for reasons of brevity and clarity, I will refer to the person to whom a domestic abuse protection notice is given as the ‘perpetrator’, rather than the ‘alleged perpetrator’ or ‘defendant’, and the person the notice seeks to protect as the ‘victim’, rather than the ‘complainant’, the ‘alleged victim’ or ‘plaintiff’.”


He went on to say:

“Clearly it will be for the court to decide, ultimately, whether they are in fact perpetrator and victim.”—[Official Report, 1/2/21; col. 1925.]

I understand entirely the noble Lord’s shorthand point, but I get anxious that sometimes, that sort of shorthand becomes the presumed fact or reality. That has been the case throughout Committee stage—nowhere more obviously than in the discussion about cross-examination —and I worry that that might prejudice justice and fairness in proceedings. As the noble Lord, Lord Paddick, rightly stated, it is up to the court ultimately to decide on guilt or innocence. It seems to me that cross-examination is a key part of making such weighty decisions. Testing the evidence thoroughly is very important, and demands for special measures for cross-examination should not compromise that.

We have already heard the way in which this can happen. We have heard the noble Lord, Lord Marks of Henley-on-Thames, say, in calling for special measures in an earlier set of amendments, that if a witness claims that they are frightened, this can be seen as sufficient reason to treat the alleged perpetrator as a perpetrator, and the alleged victim is secure in special measures. I just worry about a slippery slope. Because of the importance I place on cross-examination, in relation to the distinction between family courts and civil courts, I would actually prefer that a legal representative be appointed by both courts in order to facilitate the most objective and thorough cross-examination and to make sure that the evidence is objectively tested.

15:45

Turning to this set of amendments and why we need special measures in civil courts, I just do not feel that this requires legislation. Interchangeability between civil courts and family courts will confuse things. The arguments in favour that have been advanced so far emphasise the witness’s vulnerability as a reason to bring into law the demand for special measures in civil courts. I worry about that emphasis on vulnerability, because this might become an overly deterministic label. Civil cases may be intimate and then, as indeed the Bill already states, the judge has discretion to act in relation to special measures. But as we have heard, civil cases may involve a multitude of different issues that arose many years later and do not directly concern either abuse or alleged domestic abuse. There is a danger here that we will always see the witness as a vulnerable victim, even if the argument is over something relatively trivial, such as property—which, of course, is not always trivial.

Domestic abuse can be traumatising but it can be overcome, and often is. Are people for ever to be victims and assumed to be traumatised in all contexts in perpetuity, in every single instance of a civil case in the courts? Surely, that would be disempowering. Ironically, it can re-victimise people—often women—by for ever seeing them as victims in need of protection and special measures. Conversely, even if a perpetrator is convicted, are they always to be seen as an abuser in all contexts in perpetuity, in every instance where they might find themselves in a civil court? We have already heard how important it is not to dismiss spent convictions under the headings of “patterns of behaviour” or “repeat offenders”. We must ensure, therefore, that we hold our nerve in not compromising on our commitment to drawing a line, and to the humane aims of rehabilitation. To go back to where I started, I support the noble Lord, Lord Paddick, on that issue.

I will be rejecting these amendments. The civil courts are distinct and different. Treating people who may well have been victims as perpetually victims in all instances does them no favours whatsoever.

[Lord Wolfson of Tredegar (Con)]

My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, has explained, these amendments intend to bring the provisions relating to prohibition of cross-examination in civil courts into line with the provisions on the same measure in family courts. As the noble Lord explained, we have covered some of the questions of principle already in earlier groups. He indicated that he was therefore going to be brief—as he indeed was—and I hope that both he and the Committee will not take it as any disrespect if I am equally brief in response, given that we have canvassed the points of principle already.

The noble Baroness, Lady Bennett of Manor Castle, described herself as a “support act”, an appellation with which I respectfully but firmly disagree. She spoke eloquently in an earlier group of her personal experience of seeing how court procedures operate in cases involving domestic abuse, and her contribution to this short debate has been equally valuable. I hope that the noble Baroness, Lady Fox of Buckley, will forgive me if I gently point out to her that she should not apologise for not being a lawyer. What is apparently, based on my short time here, a repeated cause for apology in this House is generally regarded as a badge of honour everywhere else.

Turning to the substance, let me explain that the approach we have taken in civil cases differs from that taken in family proceedings for good reasons. The clause dealing with banning cross-examination of vulnerable parties or witnesses stems from the report by the Civil Justice Council, to which the noble Lord, Lord Marks, also referred, and which I spoke about when commenting on the amendments to Clause 62.

The council recommended that the prohibition of cross-examination by a self-represented party should be extended to cover civil proceedings, thereby ensuring some parity with the criminal and family jurisdictions. Importantly, however, the Civil Justice Council cautioned that the ban or prohibition should not be absolute: rather, it should be left to the court’s discretion, given that, as I explained in an earlier group, the civil and family jurisdictions are very different as regards the types of cases, with the civil jurisdiction having a much wider range. As I also said earlier, those cases can have a much broader range of circumstances, where there is no prior close connection between the parties, as there would generally be in the family courts. We have therefore tailored our approach to allow for those differences, which is why the provisions in respect of cross-examination in the civil jurisdiction differ from those in family proceedings. I hope that that explains my thinking to the noble Lord, Lord Marks.

In response to points made by the noble Baronesses, Lady Bennett of Manor Castle and Lady Fox of Buckley, I say it is important that two things are fundamental. First, it is important that protection is available to all witnesses who need it—this was the point made by the noble Baroness, Lady Bennett. In response to the point of the noble Baroness, Lady Fox, the court will of course look at all circumstances in that regard. The overriding concern is to ensure that justice is done in the particular case, which is why leaving it to the discretion of the judge in an individual case to decide when a ban is necessary is based on an unlimited range of factors, including, obviously, the views of parties to the proceedings, any past convictions or the behaviour of parties during the trial. That is how we suggest this matter is best resolved.

Having said all that, I respectfully say that the noble Lord, Lord Marks, has put forward, as one would expect from him, a cogent and well-argued case for his amendment. As such, while we consider that the approach taken in the Bill in relation to the civil courts is well founded, and certainly not—to use a word adopted earlier in this debate—illogical, I hear the arguments he put forward and undertake to consider these amendments further ahead of Report. I will continue to listen with interest to any arguments made by him or others in this regard. Therefore, given this undertaking, I hope that the noble Lord will be content to withdraw his amendment.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, once again, I am grateful to all noble Lords who have spoken in this debate. I certainly agree with the noble Lord, Lord Wolfson, that the noble Baroness, Lady Bennett of Manor Castle, has proved herself much more than a support act. I say to her and the noble Baroness, Lady Fox of Buckley, that there is a crying need in these legal debates for experience from outside the law to inform our debates and bring the lawyers down to earth.

Many noble Lords may well have formed the view that the differences between the noble Lord, Lord Wolfson, and me are arcane legal arguments, in some senses—but we can only have those arcane arguments in a relevant way if we have real-world experiences to back them up. Some of these will be ours, but the noble Baroness, Lady Bennett of Manor Castle, not only clearly demonstrated how the principles that apply to cross-examination in civil proceedings also apply in family proceedings; she also graphically described the personal experience of witnesses in court proceedings. I challenge anyone to explain why that experience differs between the two types of proceeding, where witnesses are, or are liable to be, victims of domestic abuse and are vulnerable.

Although I greatly valued the contribution of the noble Baroness, Lady Fox of Buckley, I do not agree with her that this legislation or these and other amendments overstate the significance of vulnerability or trauma, when the evidence is serious and extensive of how deep vulnerability can go, how serious the trauma can be and how long-lasting it can be as a result of domestic abuse. That is the reason why the Government have brought this Bill; it is why it is widely welcomed around the House and the reason for the protections that are afforded to witnesses and parties in court proceedings.

I come to the noble Lord, Lord Wolfson, who frankly accepts the differences and parallels between us in respect of cross-examination in cases of special measures. I do not accept that a discretionary system in relation to the prohibition of cross-examination is an acceptable substitute. One of the principal reasons for this is that a party or witness has no assurance that there will be a prohibition in a discretionary case. She—or, in some cases, he—is totally reliant on judicial discretion having regard, as the Minister says, to all sorts of other factors, including previous convictions and all the circumstances of the case, in relation to knowing whether a prohibition of cross-examination will be extended. This means that such a witness or party is exposed to the risk that there will be direct cross- examination, which they may well be unable to face.

I am very grateful to the Minister for his undertaking that he will consider these amendments further; I know that that undertaking is given with every intention that he will do so. I and others remain completely open to discussing these amendments with him and refining them if necessary, but we hold the basic belief that vulnerable witnesses need protection from direct cross-examination on exactly the same basis in civil cases as is to be extended in family cases. Saying that, I beg leave to withdraw Amendment 124.

Amendment 124 withdrawn.

Amendments 125 to 129 not moved.

Clause 64 agreed.

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

My Lords, we now come to the group beginning with Amendment 130. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Amendment 130

Moved by

[Lord Rosser]

130: After Clause 64, insert the following new Clause—
“Proceedings under the Children Act 1989
(1) Part I of the Children Act 1989 is amended as follows.(2) In section 1 (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.(8A) 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.”” Member’s explanatory statement
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.

[Lord Rosser (Lab) [V]]

Amendment 130 would include in the Bill a new clause that would disapply the presumption that parental involvement furthers a child’s welfare in cases where there has been domestic abuse. The new clause would also preclude unsupervised contact for a parent awaiting trial, or on bail, for domestic abuse offences or where there are ongoing criminal proceedings for domestic abuse. I thank the noble Baronesses, Lady Gardner of Parkes, Lady Jones of Moulsecoomb and Lady Meacher, for adding their names to this amendment. Amendment 130A, in the name of the noble Baroness, Lady Jones of Moulsecoomb, would further extend prohibitions on unsupervised contact, and I look forward to hearing her speak to her amendment.

The purpose of the new clause set out in Amendment 130 is to act to protect the lives of children who live with domestic abuse where the cases end up in the family court. Between 2006 and 2019, at least 21 children were killed during contact with fathers who were perpetrators of domestic abuse.

16:00

The Children Act 1989, as amended by the Children and Families Act 2014, states that the family court is

“to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.”

Concerns were expressed at that time that this would strengthen the likelihood of a “contact at all costs” approach. Although judicial guidance makes it clear that:

“The court must in every case consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm”,

this is not as strong as the legal presumption in the Children Act 1989.

The “pro-contact” presumption, even where there has been domestic abuse, can lead to unsafe contact decisions. The Women’s Aid Nineteen Child Homicides report documents the cases of 19 children in 12 families who were killed in circumstances relating to child contact by a father who was a perpetrator of domestic abuse. Women’s Aid also found that in the cases where contact was arranged through the courts, abuse of the mother was often seen as a separate issue from the child’s safety and well-being, rather than the two being intrinsically linked. Research published in 2017 by Cafcass, the Children and Family Court Advisory and Support Service, in partnership with Women’s Aid, showed that more than two-thirds of the 216 child contact cases in the sample involved allegations of domestic abuse. Yet in 23% of these cases unsupervised contact was ordered at the first hearing.

In July last year the Ministry of Justice published the final report of its expert panel, Assessing Risk of Harm to Children and Parents in Private Law Children Cases. The expert panel said:

“Although some professionals supported the presumption of parental involvement in section 1(2A) of the Children Act 1989, the panel received sufficient evidence to conclude that in the cohort of cases described in submissions the presumption further reinforces the pro-contact culture and detracts from the court’s focus on the child’s individual welfare and safety”.

Continuing, the report said:

“The panel is clear, however, that the presumption should not remain in its present form … We recommend that the presumption of parental involvement be reviewed urgently in order to address its detrimental effects.”

Such a review was not announced by the Government until five months later, in November 2020, and is not due to report until the summer, as I understand it. There is then likely to be a further delay in implementing any outcomes arising from the review—probably a lengthy delay if further legislation is required.

Amendment 130, pending the outcome of the review but in line with the expert panel finding that the presumption should not remain in its present form, simply states that the presumption in the Children and Families Act that the welfare of the child is best served by the involvement of both parents does not apply in cases where there are allegations, findings or admissions of domestic abuse to the child or other parent. The welfare principle would then be applied by the court to ensure that any orders made, whatever they might prove to be, are in the child’s best interests and not influenced by a presumption that the welfare of the child is best served by the involvement of both parents. That would help protect children caught up in family court proceedings from harm.

The amendment does not prevent a court coming to the conclusion, in cases where there has been or appears to have been domestic abuse, that involvement with both parents nevertheless still best serves the welfare of the child in the specific instance of the case they are hearing. But the court would not have to start off with a statutory presumption that that that would be the case.

Amendment 130 is very much rooted in the welfare of the child and simply seeks to ensure that, in cases involving domestic abuse, the assessment of the child’s welfare and what is in their best interests is the most fundamental and crucial consideration. This amendment has the support of the Victims’ Commissioner. The Victims’ Commissioner told the Commons committee considering this Bill that one of her major concerns was that the Bill does not

“Create a presumption of no contact or parental responsibility where there has been a conviction, restraining order, findings by the Family Court.”

She also said that she was

“very troubled by the presumption of shared parenting that seems to trump practically everything else in the family court.”—[Official Report, Commons, Domestic Abuse Bill Committee, 4/6/20; col. 63.]

The Victims’ Commissioner has also written to the Home Secretary, saying that she saw the need to prohibit unsupervised contact between a parent on bail for domestic abuse-related offences for which criminal proceedings are ongoing. The designate domestic abuse commissioner also supports this amendment as one she considers essential to ensure robust and inclusive support for survivors of domestic abuse. The question now is whether the Government will support this amendment. I beg to move Amendment 130.

Amendment 130A (to Amendment 130)

Moved by

[Baroness Jones of Moulsecoomb]

130A: After Clause 64, in subsection (4) after inserted text (8)(b) insert—
“(c) pending a fact finding hearing or has been found to have committed domestic abuse in a previous fact-finding hearing; orwho has a criminal conviction for a domestic abuse offence.”Member’s explanatory statement
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.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, some of the earlier amendments to the Bill have been about removing stress from survivors, particularly when they are in court. I support Amendment 130 moved by the noble Lord, Lord Rosser, and my amendment is a friendly amendment. Our amendments are about removing stress from children, which I think noble Lords will agree is a very noble cause. As other noble Lords have found, we have been contacted by an incredible number of people and organisations, who have explained that this is a problem and it needs fixing. The presumption of contact in certain family law cases involving domestic abuse needs to be rethought. Obviously, it is incredibly important in many family situations to help children maintain contact with both parents, but in circumstances of domestic abuse this can be precisely the opposite of what needs to happen and can result in disaster.

The whole point of family courts is that they are supposed to be about the welfare of the child, but it seems that too often a court maintains contact in situations that are obviously very harmful to children. The courts apply this presumption of contact too rigidly. Rather than acting as a presumption which can be rebutted, it has become more of an overriding obsession. It has been described as creating a “culture of contact” which pervades the entire family court system and then excludes other aspects of a child’s welfare, including listening to the child’s wishes and protecting them from abuse.

This culture of contact has led to serious tragedies. As the noble Lord, Lord Rosser, mentioned the Women’s Aid report Nineteen Child Homicides documents 19 children in 12 families who were killed at the hands of abusive fathers during unsupervised contact between the years 2005 and 2015. One example of a tragedy was Darren Sykes, who murdered his two children and took his own life by setting fire to his attic. Despite a consistent history of domestic abuse, and against the wishes of the two little boys, the pro-contact culture of the family courts led to Sykes being granted unsupervised contact with the children for five hours each week. This culminated in him taking the boys up to the attic, barricading the three of them in, and setting multiple fires. Mortally wounded, one of the boy’s last words were spoken to a firefighter. He said, “My dad did this, and he did it on purpose.”

Each one of these deaths is a preventable tragedy. Your Lordships have a duty, through the Bill, to prevent each one of them happening again to another child. My amendment to Amendment 130 has a straight- forward purpose: to ensure that unsupervised contact is not granted where the court has found that domestic abuse has taken place, or where there is a relevant criminal conviction. It should be put beyond doubt that a parent cannot have unsupervised contact when they have been proven to be a domestic abuser. This is a simple proposition: too many children are murdered by parents who are known—and who have been shown —to be abusive. We must protect these children and say, “Never again”.

[Baroness Gardner of Parkes (Con) [V]]

My Lords, I am very supportive of the Bill. The mental and physical damage of domestic abuse goes far beyond the pain and anguish caused at the time it occurs and stays with victims and their families for many years, if not for the rest of their lives. It is important that we do all we can in this legislation to help victims to get out of abusive relationships and rebuild their lives.

I will speak on Amendments 130 and 130A and propose to add parental alienation to the definition of abusive behaviour and, therefore, every provision of the Bill. I fear that the amendments may undo much of the work which the Bill seeks to do to protect victims of domestic abuse and swing the pendulum of control back to the perpetrator of that abuse, rather than the victim, if they make counter-allegations.

Without meaning to sound flippant I say that, at the extreme, any parent going through a break-up or divorce could find themselves accused of domestic abuse under this Act. That is not what the Bill is intended for. I wonder if the concerns of noble Lords on these amendments are already covered by the combination of Clause 1(3)(e) and (5). Alternatively, if they had a specific instance in mind, they should look at where that can be catered for in specific clauses, not by a wholesale change to the entire Act in this way.

The noble Lord, Lord Marks, has made it clear that direct cross-examination can cause great distress. It is important to help all people in vulnerable situations. I can see these amendments having massive unintended consequences if they are included. I urge the House not to accept either of these changes, so as to maintain the integrity of the Act.

[Baroness Meacher (CB) [V]]

My Lords, I will speak principally to Amendment 130 in the name of the noble Lord, Lord Rosser. Parental contact is, of course, enormously important. Continued contact can be very dangerous both mentally and physically, but it can be beneficial. To make the right decision for each family is of the utmost importance, and sometimes people get it wrong. However, my support for the amendment is nuanced. I support proposed new subsection (4) but I add that a parent of either sex who has been found to exercise controlling or coercive behaviour should probably not have continued contact with the children. Such contact is likely to be used to continue controlling the partner. The child becomes a pawn in the fight with the partner.

I know an appalling example of this. Years after a divorce between an American dad and a British mum, the mother is required to pay to fly to the US five or six times a year to take her child to the father for contact. Because she cannot trust the father to allow the child to come back, the mother keeps the passport. This means that, after the week’s contact, she has to fly to the US and pick up the child. Even Covid was not accepted as a reason not to go, and the mother caught it on the plane back to the UK over Christmas. The child does not want to go to see her father but is being used as a pawn.

I accept that anecdotal evidence is of limited value; I am a great believer in research. However, I ask that, before Report, the presumption of parental contact be considered in the context of controlling or coercive behaviour and the results of relevant research on the issue.

The first part of the amendment assumes that the presumption of parental contact should not apply in relation to a parent where domestic abuse has affected the child or other parent. I support the implication that parental contact should be very carefully assessed in these circumstances, but the wording of the amendment could be nuanced before Report. I fully accept that it should not be presumed that parental contact would apply in these circumstances.

In my experience, even when domestic abuse against children as well as a partner has occurred, this should not necessarily rule out parental contact. This depends on the nature of the abuse, the ages and level of understanding of the children, the presence or absence of controlling behaviour—a key factor in the situation—and an overall assessment of the potential harms and benefits involved. I also broadly support the amendment in the name of the noble Baroness, Lady Jones, but I would qualify it on Report.

While again recognising the limited value of individual cases, I will illustrate with a personal experience my point that very serious domestic abuse and continued parental contact may be compatible and, indeed, helpful. The case I will cite involves abuse of children by a mother. As with abuse by a father, abuse by a mother can be extraordinarily damaging, and it can take the authorities a very long time to recognise it.

A male member of my family and his children suffered what can be described only as severe trauma over several years. It took Cafcass and the judicial system two and a half years to recognise that the person who was lying about her abuse of her children, and making up allegations, was in fact the mother. The authorities assumed at that time that mothers did not abuse their children. The very little eight year-old girl climbed up on a chair and unbolted the front door—she was always locked into her mother’s house—ran to the bus stop, managed to get on the right bus and get off at the right stop, and ran one mile through Tottenham to her dad’s house. Only then did the matter go back to court and the judge recognised that he and everyone else involved had made an appalling mistake. Having required the children to live with their mother for two and a half years, the lead social worker in the case finally made it clear that the children should only visit her but certainly not live with her.

The children have lived with their father ever since, but all have suffered from various levels of PTSD. They have had years of therapy, paid for the father, not by the state. Despite the abuse of the children and the damage to them, this father has encouraged contact with the mother. Once the children were safely placed with their father, he felt it was important for them to accept that their mum could not provide parenting but that she was, nevertheless, herself a victim. Her behaviour very much reflected her own experiences as a child. The children know that they cannot expect normal parenting, but they understand her mental state and therefore see her as a person with her own problems. In my view, they have benefited very much from the fact that they are not left with only the horrendous memories of their abuse as small children.

My personal experience, while only anecdotal, explains why I feel so strongly about the issue of parental contact. It is very complex yet hugely important. In conclusion, I support both these amendments but would like to see them adjusted before Report.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, throughout the preparation for proceedings on this Bill, I have been extremely impressed, and greatly assisted, by the work of Women’s Aid, the Victims’ Commissioner for London, the Victims’ Commissioner and many others who have worked tirelessly, with the grain of this Bill, to improve the response of us all, and the courts, to the scourge that is domestic abuse. However, with this amendment and the amendment to it, which many of them support, I have a number of concerns.

The amendment, as we have heard, seeks to disapply the presumption in Section 1(2A) of the Children Act 1989. I turn for a moment to two provisions of that widely admired legislation. As is well known, Section 1 provides:

“When a court determines any question with respect to … the upbringing of a child … the child’s welfare shall be the court’s paramount consideration.”


That overriding requirement lies at the heart of the Act, and judges and lawyers have long regarded it as the central canon of our law relating to children. The presumption under Section 1(2A) requires courts hearing proceedings, which include making orders about where children are to live and orders for contact between a child and their parents, to presume that

“unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare.”

That presumption reflects a wealth of evidence not mentioned so far in this debate, but it is generally in a child’s interest to have a relationship with each of their parents. However, that presumption is rebuttable, hence the words

“unless the contrary is shown.”

It is often the case that judges will make a decision, which generally they do not like to make but do, that given a history of domestic abuse by one parent of the other and the effect upon the child, contact with one parent will be withheld. The noble Lord, Lord Rosser, confirmed that the statutory guidance for judges ensures that they carefully consider whether contact is justified or should be withheld.

I do not suggest for a moment that all contact is safe. As many have said, cases of abuse and very serious abuse can arise during and around occasions on which contact takes place, as it can on other occasions. But I disagree with the noble Baroness, Lady Jones of Moulsecoomb, which I rarely do on these issues, that the presumption is treated by the courts as overriding. I agree with the point made by the noble Baroness, Lady Meacher, that different solutions may be right for different families. The question for the House is where that leaves us. My concern is that there will be cases where this amendment runs the risk of putting the interests of children behind the interests of parents.

However, the removal of the presumption in this subsection is not the only reason I am concerned about this amendment and the amendment to it. Subsection (4) of the proposed new clause would forbid the court from making any order for unsupervised access with a parent who is

“awaiting trial, or on bail for, a domestic abuse offence, or … involved in ongoing criminal proceedings for a domestic abuse offence.”

That prohibition would be absolute, and I think it would be wrong. It would forbid a child from having unsupervised contact with a parent which may, in particular circumstances, work against the best interests of the child, contravening the paramountcy principle I mentioned. It should be for the judges to determine what the circumstances in each case demand. The noble Baroness, Lady Meacher, pointed out that circumstances differ and the extent to which they do.

Furthermore, the amendment is not limited to cases involving domestic abuse against a parent of the child concerned. Section 9(8) of the Children Act referred to in subsection (4) of the proposed new clause is concerned with allegations of “a domestic abuse offence.” The subsection would prohibit, for example, a court making an order for unsupervised contact between a father and his older child because the father had been accused of a domestic abuse offence committed against a new partner who was not the child’s mother, irrespective of any relationship between the new partner and the child. Such a prohibition would be grossly unjust, depriving the child of his or her relationship with the father. It would again run entirely counter to the paramountcy principle.

What is more, this amendment only requires, before unsupervised contact is prohibited, that allegations have been made. They need not have been established; they might be wrong or malicious. The noble Baroness, Lady Meacher, mentioned a case where they were indeed wrong. The noble Baroness, Lady Gardner of Parkes, mentioned a case where allegations might be malicious. This provision runs the risk of inviting unwarranted allegations of abuse calculated to destroy a child’s relationship with a parent against whom nothing has been found, on the basis of allegations that may be irrelevant to the welfare of the child. A family judge would determine whether such allegations of abuse were made out and would do so on the basis of evidence adduced before the court, not on the basis of unproved allegations. This amendment involves, to that extent, a denial of justice and a denial of justice to children.

I firmly believe that judicial discretion should not be withdrawn in this sensitive area of family life. There are many cases where abusive behaviour by one parent towards another entirely justifies the withdrawal of contact between the abusive parent and the child. But there are other cases, as the noble Baroness, Lady Meacher, recognised, where withdrawing contact is inimical to the welfare of the child.

Improving the way in which family courts understand and respond to domestic abuse of all sorts is of the greatest importance, but this amendment is too prescriptive in its statement and its outcome. Removing the power of judges to act in the best interests of the child, on whose behalf they daily make very difficult decisions, is not the way to achieve the aims of this Bill.

[Lord Randall of Uxbridge (Con) [V]]

My Lords, at the outset, I was attracted to these amendments. As a lay person, listening to the noble Lord, Lord Rosser, with his usual measured way of introducing amendments, and the noble Baroness, Lady Jones of Moulsecoomb, I found the arguments compelling. But as I listened, I thought that although there is sometimes merit in having us lay people who have no knowledge of the law involved—as was mentioned in the previous group—the arguments showed why it is so important to have people who have experience with what the laws we are making would mean in practice in the courts. Having heard the arguments of the noble Lord, Lord Marks, in particular, and the noble Baronesses, Lady Meacher and Lady Gardner of Parkes, and believing that the intentions behind these amendments are worthy, because it seems self-evident that this must be done, I am not convinced that this way of dealing with the issue will be beneficial for the people we want to protect—the children.



Of course, those chilling statistics of where children have been killed by an abusive parent, after this has been discovered, are very concerning, but I am not necessarily sure that passing any of these amendments would completely rule it out. I think we all agree, those of us lucky enough to have happy families and know other happy families, what the harm would be for those who need it and that parental involvement is paramount.

16:30

Whereas I was very happy to support it—I will be interested to hear other speakers, notably the noble and learned Baroness, Lady Butler-Sloss, who I know has extensive experience, and my noble friend the Minister—perhaps we can look at nuance, as the noble Baroness, Lady Meacher, said; some way of amending or making sure that, in the instructions to the courts, the presumption that they can disapply is recognised a bit more formally.

[Lord Rooker (Lab) [V]]

My Lords, my quick message to Hansard is that they can tear up the note I sent earlier. In fact, the noble Lord, Lord Randall of Uxbridge, has just made the speech I decided to make having listened to the debate. I do not propose to repeat what he said, save for the fact that the general thrust of his conclusion as a lay person is the same one I have come to. I read the briefings, considered the issue and listened to my noble friend Lord Rosser; I was then surprised when listening to the noble Baroness, Lady Gardner. As the debate went on, I started to have second thoughts. This is the benefit of Committee—that is what it is for. The idea can be taken away and reworked.

I will raise one point from one of the briefings, from Support Not Separation and Women Against Rape, which quoted the harm review. They said they found a pattern of bias in the court professionals which gave weight to the views of the child who wanted contact but dismissed the views of the child who did not. That is extremely worrying.

However, having come to the same conclusion as the noble Lord, Lord Randall, I will leave it there.

[Baroness Butler-Sloss (CB) [V]]

My Lords, I view this amendment, which is in two parts, with some concern. To a very large extent, I share the views of the noble Lord, Lord Marks of Henley-on-Thames, and those of the noble Lord, Lord Randall of Uxbridge.

When I was President of the Family Division—and throughout the 35 years I was a family judge—I heard a great many cases which had some element of domestic abuse. I do not like presumptions, if they can be avoided. I remember that, when the amended Section 1(2A) was introduced while I was a Member of this House, I was very dubious about it, because I do not like presumptions. The important point of the Children Act is Section 1, which says that

“the child’s welfare shall be the court’s paramount consideration.”

Any family judge or magistrate has to look at all the circumstances and decide whether it is appropriate, in those circumstances, for both parents to have a relationship with the child after their separation. In normal circumstances, one takes it for granted that both parents will have a relationship, but there will be cases in which there should not be one.

I am not quite so concerned about the first part of Amendment 130, because it says that subsection (2A) shall not apply in situations which have affected the child. Even so, it should be a matter where the welfare of the child is paramount and the judge exercises his or her discretion, having come to a conclusion based on all the facts.

I am particularly opposed to the second part of Amendment 130: the restrictions on Section 9. This is, first, because it does not require domestic abuse to have affected the child. Other points have been made on this by the noble Lord, Lord Marks, with which I entirely agree, but I can see circumstances where a child was for one reason or another—possibly at boarding school or away on holiday—not present when there was domestic abuse between the parents, and the child had no knowledge of it. In those circumstances, it would not be inappropriate for the child to have unsupervised contact with a parent who had done absolutely nothing wrong to the child but who may have been involved in a single or unusual circumstance which could be classified as domestic abuse of the other parent.

This draconian proposal that Section 9 be restricted is inappropriate, although I entirely understand and share the concerns about the parents—mothers as well as fathers—who have been given unsupervised contact where there are issues of domestic abuse which are true, where the children are then killed. That is extremely sad; there should be adequate training of all judges and/or magistrates trying family cases. It may be more important to get the Ministry of Justice to discuss with the Judicial College and the President of the Family Division whether the training of judges and magistrates in issues of domestic abuse, to which I shall refer on the next group, should be improved. I will later refer to a useful case in the Court of Appeal which has been discussing this.

I am completely opposed to the second part of Amendment 130. I am sympathetic to what lies behind it, but I believe there should be a broader consideration of whether, where the welfare of the children must be paramount, there should be any presumptions of any sort—but certainly not in the way this has been drafted.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

In place of the noble Baroness, Lady Andrews, I call the noble Baroness, Lady Altmann.

[Baroness Altmann (Con) [V]]

My Lords, I once again congratulate the Government on bringing forward this important Bill and on the constructive and helpful manner in which my noble friends the Ministers have all engaged with so many noble Lords to try to ensure that this legislation achieves its aim of protecting victims of domestic abuse.

I am speaking to Amendments 130 and 130A because I share the concerns expressed by other noble Lords that they may unintentionally undermine the aims of the Bill. I recognise the rationale and thinking behind them and the desire to protect children, who can be innocent victims in these awful cases, but I agree with the noble Baroness, Lady Meacher, and so many others that contact with both parents is normally in the long-term interests of children. That is why I supported amendments at an earlier stage to ensure that parental alienation is taken seriously, rather than being left to statutory guidance or, as these amendments might suggest, removed from the guidance as well.

The current legal position reflects huge amounts of evidence that children benefit from contact with both parents and that significant psychological damage can be caused by loss of such contact. I therefore have serious concerns that removing the presumption of contact could cause more harm to more children than this amendment is designed to prevent. Of course, there will be dreadful cases in which an abusive parent will perpetrate harm on the children, but that is extremely rare. As the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Marks, the noble Baroness, Lady Meacher, the noble Lord, Lord Rosser, and others have explained, the family courts already have the power, under the Children Act 1989, to decide against contact in individual cases where it is judged to be appropriate for that case. The Act presumes only that contact with both parents will be in the child’s interests unless the contrary is shown. Should the contrary indeed be shown, rather than merely alleged, and should abuse be proven, then those are clearly the exceptional cases in which a court would hardly be likely to grant access.

Do we not have a principle of ensuring that someone is proven guilty before being deprived of such important rights? Amendment 130 would require that, even where there are allegations of domestic abuse, whether it is against the child or a parent, the deprivation of access to children would still hold. That clearly invites the risk of unfounded allegations being made by one parent who wishes to prevent their ex-partner seeing the children, potentially as a way in which to punish the other parent or for other reasons. That could lead to the other parent being accused, for example, of emotional or psychological abuse, for which there may be no visible signs and which, indeed, may subsequently be disproved. However, the amendment would mean that the courts would deny access to the person who is accused before any judicial opportunity to find that parent innocent.

I echo the words of my noble friend Lady Gardner of Parkes, who mentioned parental alienation, which we discussed in an earlier group, and those of the noble Baroness, Lady Meacher, and others: these cases can be hugely complex. We have to trust the courts to apply the expertise necessary in such cases, which are the vast majority. The presumption of contact seems to have so much weight of evidence behind it that it would be extremely unwise and damaging to many children if the amendment, and Amendment 130A, were accepted.

We do not want the Bill to damage children in a misguided attempt to help them. It does not seem to fit with natural justice to impose automatic sanctions without the normal judicial oversight or a conviction to substantiate claims. I recognise the intention of these amendments and I share the desire to prevent any children being severely harmed or even unwittingly put into the hands of an abuser who may kill them. However, I hope that Amendments 130 and 130A will not form part of the Bill because the alternative, whereby children are denied access to their parent, and the other parent is denied access to their children, on the basis of unsubstantiated and potentially false claims, could lead to substantial harm and, indeed, the suicide of a parent or children, who often suffer terribly if they are unable to have contact with a parent.

16:45

[Baroness Burt of Solihull (LD)]

My Lords, there has been a varied response to the Bill. What has come out of it is that nothing is as simple as it might appear in situations of the kind described. The somewhat harrowing example given by the noble Baroness, Lady Meacher, underlines that.

As we have heard, Amendments 130 and 130A seek to change the presumption that it is in the welfare of a child to have unsupervised contact when one parent has either a domestic abuse conviction or court proceedings against them. The noble and learned Baroness, Lady Butler-Sloss, told us that she does not like presumptions and that we need to consider all the circumstances—that has certainly come out of this afternoon’s debate.

As we know, the presumption of the courts is that it is in the welfare of the child for both parents to have access now, everything else being equal. However, when one parent is accused of abusing or has abused the other parent or the child, or they are subject to a Crown prosecution case, everything is most decidedly not equal. We have discussed enough times during the course of the Bill just how difficult and stressful a domestic abuse situation can be for a child, who can be used and abused as a pawn between warring partners. And it can get far, far worse than that.

Several noble Lords used statistics to back up this argument. Mine come from the charity Refuge, which, in partnership with a Sunday Mirror journalist, conducted an investigation which found that, between 2004 and 2019, 63 children were killed at the hands of a domestic abuse perpetrator who had contact with their children after being convicted of a serious criminal offence. Refuge reports that the actual figures of child harm are even higher, with many children dying from other causes, such as neglect. This is the danger of under- estimating the risk that perpetrators can pose to their children. It does not apply to all perpetrators, of course; many who have committed domestic abuse against their partners are different altogether with the children—a point another noble Lord made.

We should also consider how previous matters are taken into consideration. In particular, my colleague and noble friend Lord Marks gave an example of a previous situation in which domestic abuse took place, perhaps in a previous life. But domestic abuse still figures in that situation, so if an alleged perpetrator has a previous domestic abuse conviction, it would be better to be safe than sorry.

The noble Baroness, Lady Jones of Moulsecoomb, moved Amendment 130A, as an amendment to Amendment 130, which takes matters a little further to include fact-finding hearings in the family courts, which most commonly concern domestic abuse. In such hearings, it is for the person making the allegations to prove that they are true. The judge considers on the balance of probabilities whether the allegations are true or not. The presumption in Amendment 130 is therefore extended while the hearings take place. I think it is better that, where there is a previous conviction, even with another partner in a different situation, it is still far better to be safe than sorry.

I hope that the Minister will be minded to consider these amendments carefully and, if necessary, make changes to make them a little better on Report.

[Lord Wolfson of Tredegar (Con)]

My Lords, as the noble Lord, Lord Rosser, has explained, Amendment 130, formerly in the name of the noble Lord, Lord Ponsonby of Shulbrede, seeks to make it clear that the presumption that parental involvement furthers the child’s welfare cannot apply where there is evidence of domestic abuse. It also seeks to prohibit unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences or where there are ongoing criminal proceedings for domestic abuse.

Amendment 130A in the name of the noble Baroness, Lady Jones of Moulsecoomb, extends this. It seeks to prohibit unsupervised contact for a parent pending a fact-finding hearing in family proceedings or where domestic abuse is alleged or is proven—either in such a fact-finding hearing or as the result of a criminal conviction for a domestic abuse offence.

Before proceeding, I hope the Committee will forgive me if I make two overarching points. First—and I say this respectfully, given my short time in this House—the debate we have just had shows the value and importance of Committee stage. A number of contributors have listened to and considered the points that have been made and, on occasion, have changed their position. There is nothing wrong with that. If I have one regret—and again I say this respectfully—it is that our PR means that the value of these Committees is not as well understood outside this House as it is within it.

Secondly, in the last debate, the noble Lord, Lord Marks of Henley-on-Thames, made the point that what seems an arcane legal matter to lawyers—and perhaps to others in this Chamber—is improved by real-world experience and examples. In this debate, contributions from the noble Baroness, Lady Jones of Moulsecoomb, and the noble Baroness, Lady Meacher, have done just that. I agree with the noble Baroness, Lady Meacher, that anecdote is not evidence and that we must have research. I will come to this issue later in my remarks. Hearing the case of an eight year-old girl unlocking the front door to catch a bus to get to her father’s house is a powerful example. The image of a child saying his last words to a fireman in a smoke-filled attic will stay with me, and rightly so. It reminds me that, although we are debating words on paper, they have consequences in the real world. I am sure that many, if not all, noble Lords will feel the same.

I have a great deal of sympathy for the aims of these amendments, and I agree that more needs to be done to ensure that the courts take proper account of the impact that domestic abuse can have on children’s well-being and safety. To that extent, I agree with the noble Baroness, Lady Jones of Moulsecoomb, that we should seek to remove stress from children, in so far as we can. That was why, late last year, following the recommendations from the Expert Panel on Harm in the Family Courts, the Government launched a review on the presumption of parental involvement. Importantly, the panel did not call for immediate legislative change. Instead, it recommended a full review. They were right to do so. As the noble Lord, Lord Rosser, said and as noble Lords will be aware, this review is under way. As the noble Baroness, Lady Meacher, said, it will give us important data, research and a considered analysis.

The review will focus on the presumption—and its exception—and the impact on children’s welfare of the courts’ application of these provisions. It will allow us to build a stronger evidence base and ensure that any changes brought about as a result are rooted in a solid understanding of the effect of the presumption and the associated evidence on child welfare. It would therefore be premature to amend the legislation relating to the presumption, including Section 9 of the Children Act—as proposed in the amendment—before gaining the in-depth evidence from the review.

It is worth highlighting that the current legislation on the presumption makes it clear that it should be disapplied where there is risk of harm to the child. This means that the risk of harm from a parent perpetrator of domestic abuse should already be taken into account by the courts. As the noble Lord, Lord Marks of Henley-on-Thames, reminded us, Section 1 of the Children Act 1989 makes the child’s welfare paramount. It should also ensure that courts consider the risk of a child suffering harm, or further harm, when deciding on any aspect of the child’s upbringing.

Some noble Lords asked how contact between a child and a parent who has committed domestic abuse, or against whom it has been alleged, could ever be in the best interests of the child. The short answer is that this is not an easy question, but it is for the courts to decide in each case, taking into account all the evidence presented to them. The noble and learned Baroness, Lady Butler-Sloss, has vast experience in this area. She gave us an example of such a possible case. She also made an important point about judicial training, which we shall come to in a later group.

In addition to my general point that this issue is catered for in the current statutory architecture, there are two further problems to which the amendments would lead. First, domestic abuse is only one of many circumstances which may impact on a child’s well-being and safety. By expressly referring to it, these amendments could be seen to give domestic abuse prominence over other valid considerations which the court should take into account in deciding whether such an order would be in the best interests of the child—for example, other sexual or violent offending, or a history of or allegations of child abuse. I say this without downplaying in any way the importance and effect of domestic abuse.

Secondly, as a number of contributors have said, the second part of the amendment would lead to an automatic ban. The court could not exercise discretion. If we legislate to create automatic bans on a particular form of contact, there may be concerns that we are not allowing courts to take sufficient account of whether there are risks to the child in the particular circumstances of the case. Risks and rights must be weighed carefully, allowing courts to assess each case on its merits. The noble Lord, Lord Marks, gave an example where, on the facts of the case, a court might want to permit contact.

Other noble Lords, who are not lawyers, have also contributed to this debate. My noble friend Lord Randall of Uxbridge summarised it very well—so much so that he led the noble Lord, Lord Rooker, to tear up his speech. This must be a rare, if not unique, occurrence. The noble Baroness, Lady Meacher, said it was “likely” that the court would reach such a conclusion. This is the point I am making: it may be likely, but we should not force the court to do so. We should not remove the court’s discretion. Ultimately, the court should make the decision, based on all the facts of the case. Furthermore, it is not clear from the terms of the amendment whether such bans, if they prevent unsupervised contact following a conviction or finding of fact, would or should be capable of being lifted or modified if the risks in an individual case materially change. I respectfully agree with my noble friend Lady Gardner of Parkes when she said that she was not persuaded that the amendment was necessary, and that it might have unintended consequences.

I also agree with the point made by the noble Baroness, Lady Burt of Solihull: that nothing is as simple as it first appears in this area of the law. There are risks on all sides in this area, so to speak. There are risks of contact and, as my noble friend Lady Altmann reminded us, there are risks in preventing contact as well. I therefore suggest to the Committee that the approach in the current legislation, which was identified and explained by the noble and learned Baroness, Lady Butler-Sloss, with, if I may respectfully say so, her customary clarity, is the correct one.

17:00

Forgive me, I am just looking at my notes to make sure that I have acknowledged all the contributions that were made. I think that I have; I apologise if I have inadvertently omitted anybody. I hope that I have replied to all noble Lords who contributed.

This has been, as I said at the start, a most important and valuable debate. The Government’s contention is that we should wait for the outcome of the review of the presumption of parental involvement before any decisions are taken in relation to whether changes are required to that presumption or its application. Given this and the other points I have made in reply, I hope that the noble Lord, Lord Rosser, will be content to withdraw his amendment if the noble Baroness, Lady Jones of Moulsecoomb, does so with hers.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I thank all noble Lords who contributed to this extremely valuable debate. In particular, I thank the Minister for his sympathy for our point of view. As he says, there are real consequences in rejecting these amendments. I note the heavyweight opposition on several points but I am not convinced. The fact is that we have a problem and just rejecting these amendments will not solve it. I hope that there will be further working together on this, and that noble Lords will forgive me if I do not note all the responses, as it was fairly clear these amendments will not be going forward.

I really want to thank the noble Baroness, Lady Burt of Solihull, for her very constructive comments. The fact is that, as she said, we can underestimate the damage done by perpetrators. This is the problem. We have not fixed the problem of children’s deaths through abusive parents. Going forward, I want to find out how we can solve that problem. Let us please remember that deaths are a figure we can point to but that mental, physical and emotional abuse are much harder to quantify. This must happen. If we have 20, 24 or 60 deaths, whatever, then a multiplicity of other abuses will have happened. We must take that into account in rejecting these amendments. I said at the beginning of the debate that there is always a presumption of parental involvement—that it is better to have two parents involved—but the way that things stand at the moment is too strong, so this must be rethought.

I beg leave to withdraw my amendment and presume that the amendment of the noble Lord, Lord Rosser, will also be withdrawn. I feel that he was absolutely right to table his amendment, because it has enabled a debate. Hopefully, we will move forward and find a solution.

Amendment 130A (to Amendment 130) withdrawn.

[Lord Rosser (Lab) [V]]

I am not quite sure what right of reply I have, since my name is not shown on the speakers’ list as being able to speak at the end of this debate. I do not want to test the patience of the House, so I had probably better keep my comments brief.

It was the expert panel set up by the Ministry of Justice which came to the conclusion that the presumption in favour of contact

“further reinforces the pro-contact culture and detracts from the court’s focus on the child’s individual welfare and safety.”

I would add that my amendment does not prevent a court coming to the conclusion that, nevertheless, where there is domestic abuse, there should still be involvement with both parents. It is just that it would not start off with a presumption that it should be the case.

I will leave my comments there. I thank the Minister for his full response, and thank all noble Lords who took part in the debate. Bearing in mind that I am not actually shown as having a right to speak at the end, I had better conclude my comments by begging leave to withdraw my amendment.

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

The noble Lord was entitled to speak. He was just left off the list inadvertently.

Amendment 130 withdrawn.

[The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

My Lords, we now come to the group beginning with Amendment 131. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate, and that anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Amendment 131

Moved by

[Baroness Bertin]

131: After Clause 64, insert the following new Clause—
“Confidentiality of refuge addresses
(1) In family proceedings, where a person (“P”) is—(a) witness or party to the proceedings; and(b) has been subject to domestic abuse as defined under section 1 of this Act; and(c) is residing at a refuge;the provisions in this section apply.(2) The court must not share the residential address of the refuge with any individual or third party.(3) A court order must not be served on P at the residential address of the refuge.(4) A court order may be served on P at the refuge’s office address or by an alternative method or at an alternative place, in accordance with Part 6 of the Family Procedure Rules 2010.(5) The residential address of the refuge must be redacted from any court documentation.”Member’s explanatory statement
This would prevent the residential address of a refuge being shared as part of court proceedings.

[Baroness Bertin (Con)]

My Lords, in moving Amendment 131 in my name, to which the noble Lord, Lord Ponsonby, has added his name, I will leave the other amendments in this grouping in the capable hands of the noble Lord, Lord Rosser, and the noble Baroness, Lady Helic. However, I support them.

Amendment 131 seeks to provide a legal safety net for the secrecy of refuge addresses. The refuge model is predicated on the secrecy and protection of safe addresses. The responsibility for protecting these addresses falls not only on staff but on each and every resident at a refuge. Licences are assigned upon entry, with the penalty that a resident must leave if they reveal the address to anybody. Despite these safeguards, refuges can find themselves the subject of orders from the family court—particularly location orders from fathers trying to locate mothers and children. Refuge providers are forced to disclose their addresses to facilitate the service of court orders on mothers. Although some protections are in place, it is clear that there are some loopholes.

I do not want to overstate how often this happens but it is certainly true that, in nearly all such cases, information is kept confidential. However, last year, I was made aware of two cases where this information was released by the court, with concerning and dangerous consequences. In one case, the police visited the refuge and searched the mother’s belongings for passports, which did not exist, on the basis of false information from her abusive partner. This visit was deeply distressing for an already traumatised mother and child, as it was for other residents of the refuge who felt that their safety had been entirely jeopardised. In the second case, the father used the information to locate and stalk his victim and, ultimately, abduct his child and take them abroad. Having worked on the introduction of stalking protection orders, I am aware how prevalent stalking is in domestic abuse cases and how quickly it can escalate once the victim flees.

The principle behind my amendment is a very simple one: that court orders should never be served at the refuge itself and that the refuge address should remain confidential. It provides that the orders be served

“at the refuge’s office address or by an alternative method or at an alternative place, in accordance with Part 6 of the Family Procedure Rules 2010.”

As such, the amendment would not make a significant change to the existing protections. It would simply strengthen and clarify the cases in which they should be used. When similar issues were raised in Committee in the other place, the Minister stated that the Family Procedure Rules already provide for alternate routes to service and that, in domestic abuse cases, the information would be kept confidential by the court, meaning that the measures in this amendment were already provided for.

The other issue raised by Ministers was around the urgency of cases where a child’s safety is at risk. There was some concern that an alternative route to service, such as using the office address of a refuge, would present a delay in proceedings and could have the unintended consequence of endangering the child. I respectfully disagree and contend that the current situation, where refuges are pressured into revealing their most fiercely guarded information, causes more delay. In the two cases that I have outlined, the refuge provider was resistant to revealing the address and took additional time to seek legal advice and to consider all the options, including genuinely considering not complying with a court order, which in no way is to be encouraged.

By formalising the refuge office address as the alternative route to service, providers will understand that they have a duty to locate the mother as soon as possible and will not be faced with a serious conflict in doing so. Unfortunately, the cases that I have outlined demonstrate that the existing safeguards are not adequate. We cannot say with confidence that refuge addresses will always be appropriately protected. I believe that the practice on the ground is not consistent with what is intended by the Family Procedure Rules, which therefore require strengthening and updating.

In addition, alleged perpetrators do not state in their application that domestic abuse is involved in their case and, as such, the court may not always have the full picture of each case. It may not be able to assess the risk of sharing the refuge address and may not be aware that that information should absolutely not be shared—unusual though that may be. In some cases, the courts do not know about the victim’s allegations until after the order has been served and the damage has been done. The existing provisions for the confidentiality of addresses in domestic abuse cases can therefore be easily circumvented.

This is a probing amendment that seeks to understand the Government’s response to these occasional but none the less unacceptable lapses in confidentiality. I beg to move.

[Lord Rosser (Lab) (V)]

My Lords, the case for the protection of a refuge address has been made eloquently by the noble Baroness, Lady Bertin. Refuges are places of safety and the sharing of a refuge address is a clear risk to both the survivors of abuse and the staff operating the service. It simply should not happen.

Amendment 132, in the name of my noble friend Lord Ponsonby of Shulbrede and the noble Baroness, Lady Newlove, deals with the issue of the sharing of information, or indeed the lack of it that currently occurs. We recognise that the drafting may not be perfect, but the aim of the amendment is to put a duty on courts of all jurisdictions to share information where the same victim or complainant of abuse is involved in multiple proceedings in which the other party is or is linked to the perpetrator of the abuse.

The impact of silo working and the lack of information sharing between agencies and the different parts of the justice system were highlighted in the Ministry of Justice harm review as a significant barrier to the effective tackling of abuse. In particular, the review raised the fact that different approaches and a lack of information sharing could lead different courts to reach conflicting and contradictory decisions, including, for example, risk assessments and indicators recognised in the criminal courts not being similarly recognised and responded to in the family court. This issue is often raised and perhaps we all tend to nod our heads, yet we have seen little improvement. I look forward to hearing from the Minister what the Government are doing or intend to do to prevent silo working and to improve the sharing of necessary and relevant information in these cases.

17:15

The sharing of information is also paramount to a court’s ability to recognise vexatious claims where a perpetrator attempts to use the proceedings to continue their abuse by repeatedly forcing a victim back to court. Amendment 132 would provide that, in those cases, the court must consider making a barring order under Section 91(14) of the Children Act 1989, which prevents a party from making further court applications without the prior permission of the court. The expert-led harm review reported that the threshold for the use of these orders was too high and recommended that the exceptionality requirement for such an order should be reversed.

The review also raised the issue that, where a barring order is given, it is often given for a short length of time. Southall Black Sisters gave the review panel the example of a service user who had faced 18 months of repeated contact applications. Her application for a Section 91(14) order took six months to decide and was granted for only 12 months, after which she expected to be subject to further applications and would then have to reapply for another order.

Following the expert-led harm review, the Ministry of Justice said:

“Ministers will make it easier for judges to issue barring orders which prevent abusive ex-partners from repeatedly dragging their victims back to court—which can be used as a form of continuing domestic abuse.”

The Government’s implementation plan states:

“We agree that further clarification is required to the law on barring orders … The Government will immediately explore whether this aim can best be achieved via an amendment to the Domestic Abuse Bill, through other primary legislation, or through non-legislative means.”

We are some months into this Bill but have yet to hear, as far as I am aware, of the outcome of the Government’s exploration. It would be helpful if the Minister could give the House an update on the Government’s plans for barring orders.

Amendment 133, in the name of the noble Baroness, Lady Helic, is a key amendment that raises the issue of training for the judiciary and other professionals to ensure an increased understanding of domestic abuse. The challenge facing the family courts is not insignificant. Domestic abuse is an immensely complex and nuanced area. Indeed, the debates so far in our Chamber, such as that on parental alienation, have demonstrated how contentious, multifaceted and complex these issues can be. Training is a vital tool for expelling myths, seeking culture change and promoting awareness. I look forward to hearing from the noble Baroness when she speaks to her amendment.

Amendment 134 is a probing amendment. It would require the court to consider the impact of trauma from domestic abuse on the quality of evidence that a victim may provide to the court. The Ministry of Justice harm review panel reported on the need for the family court to be “trauma aware” including being

“aware of the effects of trauma when a victim is attending and giving evidence in court.”

The panel noted that a victim’s experience of court is

“fundamentally affected by the trauma they have experienced as a result of the domestic abuse.”

It discussed the ways in which trauma can impact memory and emotional response and

“significantly impair the victim’s ability to come across as a credible and reliable witness.”

The requirement in this amendment would mirror the best practice that is already growing in other parts of the justice system, including in immigration cases. The guidance for cases in the immigration and asylum tribunal includes provisions for trauma awareness and the CPS has recently consulted on new guidance that looks at the impact of trauma on the brain, memory, recall and testimony in rape and sexual offences cases. It would be helpful if the Minister could update the House on what work is being undertaken in the family court to build on the body of existing best practice in understanding the impact of trauma.

Amendment 135 would require a judge in family proceedings to lay out clearly the details of how the appeals process works when giving a ruling in a case involving a domestic abuse victim. It is a probing amendment to speak to the issue of what many regard as a lack of transparency in how court proceedings work and the lack of awareness of many victims about their right to access an appeals process. Of course, the court does not make a decision intending for it to be appealed, but the process exists as a legitimate way to challenge a decision. The issue is simply about making sure that people are given the information that they need about their existing rights. This is currently exacerbated by the number of litigants in person and the lack of legal aid provision across the justice system.

Amendment 136 also is a probing amendment. The details of cost for contact arrangements are at the discretion of the court which considers what is in the best interests of the child in question. The amendment raises the issue of a victim of abuse being required to pay towards the costs of a child’s contact with a perpetrator. It follows neatly on from previous debates on contact arrangements. The issue that has been raised with us is the impact that this can have on a victim of abuse. It can tie them into an ongoing financial relationship with a perpetrator of abuse. I simply ask the Minister whether there are any processes in place for the impact of domestic abuse to be considered when cost arrangements are being settled.

Finally, I take this opportunity to put on record my thanks to the London victims’ commissioner and her team. Their work has been important in getting some of the issues to which I have referred heard.

[Baroness Newlove (Con) [V]]

My Lords, I support measures to improve the safety of family court proceedings for survivors of domestic abuse and their children so will use my time to speak to Amendments 132 and 135.

Amendment 135 would offer victims of domestic abuse transparency about their right to appeal in the family courts. It would not introduce a new right to appeal; rather, it would make victims aware of the existing rights that they can exercise. As someone who has navigated the justice system, I can attest to how overwhelming and disempowering it can be. Basic information about the most fundamental rights is often not communicated properly. In fact, it is never known until many years later. This is particularly worrying when there are time limits on accessing rights, as is the case with appeals in the family courts, where you have 21 days unless the judge has specified otherwise.

These issues are only deepened when you are without legal representation. Following legal aid reforms in 2013, most private-law children cases now involve at least one litigant in person. Research has shown how the challenges of self-representation are particularly pronounced in cases involving domestic abuse, a fact reflected in the Ministry of Justice’s harm panel report. Indeed, I have heard from many survivors of domestic abuse who have represented themselves in court and have felt that their abuse was dismissed or misunderstood and that the fact-finding procedures, such as practice direction 12J, were not followed. None of them was aware of their right to appeal.

The Court of Appeal has recently heard evidence from four linked cases and will consider the family court’s approach to domestic abuse. During these proceedings, the President of the Family Division, Sir Andrew McFarlane, noted his surprise that systemic issues have been identified with how the courts handle domestic abuse as so few cases are appealed. Many factors will inform a decision to appeal, including financial limitations and emotional strain. However, from the survivors of domestic abuse whom I have spoken to, it appears that one of the biggest factors is the lack of awareness that such an avenue is available to them. The President of the Family Division has been clear that the appeals process is the correct mechanism for examining the courts’ approach to domestic abuse. This amendment would help that to become a reality on the ground.

Amendment 132 would place a duty on courts to share information about proceedings involving the same victim. It is something that we know should happen, but unfortunately it often does not. Again, I point to the Ministry of Justice’s harm panel report and the recurring issue of the family courts not adequately managing risk. The report specifically acknowledged the courts’ failure to identify abuse through repeated court applications. The criminal courts can often offer crucial information that would give family judges a clearer picture of risk in a case—for example, where protective orders, such as restraining orders or non-molestation orders have been granted. The Suzy Lamplugh Trust recently estimated that 38% of its domestic abuse and stalking casework clients who are in the family courts have some form of protective order—a restraining order, non-molestation order or stalking protection order—against the perpetrator. Equipping judges with this information would support them to better identify abusive dynamics and provide some contextual evidence when suspected repeated and vexatious applications are being made.

The second half of the amendment is designed to address these repeat applications. While barring orders technically exist to allow intervention on such behaviour, the reality is that they are rarely used. The Ministry of Justice’s review heard evidence from a specialist organisation which was not aware of any barring orders being made in the child sexual abuse cases it had supported, even when there had been a conviction and the abusive parent had made multiple applications for child arrangement orders or variations. In the Government’s implementation plan, there was a commitment to urgently review the use of barring orders and to consider them for inclusion in this Bill, so I ask my noble friend for an update on this commitment.

[Baroness Hamwee (LD) [V]]

My Lords, I feel slightly embarrassed to be coming in ahead of the noble Baroness, Lady Helic, who has her name to one of these amendments. I look forward to hearing what she has to say.

I think—and I apologise if I have this wrong—that on Monday it was said from the Government Front Bench that refuge addresses were never disclosed. We need to allow for human error and human ingenuity. We have previously touched on how many victims have moved away from their home area in order that their whereabouts will not be discovered but, as we have also heard, abusers can be determined. So much of the issue is about power and control, so it is not difficult to see that an abuser might do everything to track down a victim. The noble Baroness, Lady Bertin, referred to the prevalence of stalking. Knowing that a victim has moved to a refuge must be a red rag to some bulls. The dangers are not only to the victim of that abuser but to other occupants of the refuge. I am aware of situations where others have been endangered, including the children of the occupants, as well of course as the children of the victim and of the abuser, themselves victims. What must a child think when they are uprooted by Mummy, told that they are going somewhere where Daddy cannot get at them, and then Daddy appears? The noble Baroness, Lady Bertin, also referred to the horror stories on which I have been briefed.

17:30

We might say that the courts need to be sensitive. Sometimes they need strong, clear rules, and it appears that, although failures may not be that frequent, they can be extremely serious. I am not sure whether an office address will work in the case of a small refuge, as it may be a small room at the back of the premises. However, the amendment points us to how rules of the court can be used.

With regard to training, I recall some years ago rather tentatively mentioning training for the judiciary. The noble and learned Lord, Lord Woolf, who was sitting quite close by, said, “Oh, judges get lots of training these days”, so I am less hesitant about referring to it now. The noble and learned Baroness, Lady Butler- Sloss, also mentioned it—I guess she may be coming in on the subject shortly. I suppose they have continuous professional development, like the rest of us, even though for parliamentarians it is a bit limited. The proposed new clause is quite extensive and includes

“a member of the Judiciary … an employee of the Children and Family Court Advisory and Support Service … a social worker”

and “an appointed expert”, and that is not an exhaustive list. Subsection (1) refers to

“Any person who is working in a professional capacity in family proceedings”.

We started debates on the Bill with references to awareness, but awareness is not static, because our understanding develops, not least through the bravery of people who have lived experience, or, as the Minister said on the previous group, real-world experience, and who are prepared to explain what it has been like, and sometimes continues to be like, to live that experience, and therefore what is best practice develops. That is in the nature of society. It is also in the nature of society that some things are deeply engrained, and we are all subject to unconscious biases.

Until it was pointed out to me, I had not thought that, because family proceedings are not in public, how the family courts approach domestic abuse is not much in the public eye, and therefore it must be harder to research and analyse. The Ministry of Justice’s harm report, which has been mentioned quite a lot this afternoon, identifies the overarching barriers to a consistent and effective response by the family courts to domestic abuse and other serious offences, including the adversarial process and silo working. When I was thinking about these amendments, it occurred to me that subsection (2) of Amendment 133 does not list counsel and other legal representatives as those who might benefit.

All those thoughts take me on to Amendment 134, which is about trauma. The term “trauma-informed” has entered common currency, as has “retraumatisation”. That does not always mean that the thoughts behind those terms are applied. I am not a psychologist, but I sense that trauma is often—or maybe more fairly sometimes—confused with stress, and of course they are related. But trauma has varied and long-lasting effects—one cannot overstress that they are long-lasting—including psychological and cognitive effects, and they are very often not apparent to other people and may not become apparent unless there is a careful, quite lengthy, building up of a relationship.

A victim can shut off his or her experience, or shut down, and be quite unable to describe an experience or even to recall it, or the description can be very confused or omit the most salient points. I know of an occasion when a psychologist who had assisted the police in interviewing a victim in a criminal case—I accept that this was not family proceedings—was asked by the court to assist in identifying the right questions to unlock the victim’s story. That is an extreme situation, but it illustrates the point. We will continue to learn about trauma, complex trauma and other conditions.

The noble Lord, Lord Rosser, referred to the CPS’s guidance for prosecutors on the neurological impact of trauma in rape and sexual offences cases. I was pointed to the Immigration and Asylum Tribunal’s joint presidential guidance note on vulnerable witnesses and appellants. I am very taken by paragraph 1 of that guidance, which says it is

“a reminder of good judgecraft.”

[Baroness Helic (Con) [V]]

My Lords, I intend to focus mainly on Amendment 133, which is in my name. Like the other amendments in this group, which I support, it is trying to make sure that the courts protect survivors of domestic abuse from further harm. I thank the noble Lord, Lord Ponsonby, for his support on this amendment and for his leadership on the others, and I take this opportunity to thank the noble Baroness, Lady Hamwee, the noble Lord, Lord Rosser, and my noble friends Lady Newlove and Lady Bertin for their contributions. I have learned a lot from them.

I approach this debate humbly. I am not a legal expert and I have not had what is called “a lived experience”. My intervention is informed by many cases I have come across, in particular the case of a close friend whose experience at the hands of a judge and experts lacking domestic violence training has been traumatic, painful and unjust. I also want to put on the record the work of the London Victims’ Commissioner’s office and Women's Aid, from whom I have learned an enormous amount.

The Ministry of Justice review into the risk of harm in family court cases involving domestic violence, which concluded in June last year, found serious systemic issues. Despite good intentions, domestic abuse allegations are being overlooked, misunderstood and dismissed. Survivors and their children are being put at risk as a result, something which I have heard about directly from survivors. To quote one survivor who spoke to Women’s Aid and Queen Mary University of London:

“All professional witnesses supported me but despite overwhelming evidence, the judge said that I didn’t fit the profile of domestic violence victims as I wasn’t scared enough. Also I was too educated and knowledgeable to allow DV to happen to me.”


This runs against everything we know about domestic abuse and the damage it does.

I am afraid that underpinning this is a lack of judicial understanding. This is not a criticism of individual judges; they face tremendous challenges, given the complexity of domestic abuse cases and the way that society’s awareness and understanding of domestic abuse has improved in recent years. But, unfortunately, the family courts’ approach to domestic abuse remains much the same as 20 years ago, and the system is stacked against the survivor because of both the pro-contact culture of the courts and the intersecting structural disadvantages women experiencing domestic abuse face within then.

If we want to change the practice and culture of the courts so that they truly put the best interests of the child at heart, they need to work at the cutting edge of our understanding of domestic abuse and its harms, not years behind, and, for that, specialist training is absolutely crucial.

We have already heard several times in Committee about the need for better training. The noble and learned Baroness, Lady Butler-Sloss, discussed judicial training, while Amendment 53 looked at the issue from another angle. Among those calling for improvements from outside are Women’s Aid and the London Victims’ Commissioner. The Government have also recognised the importance of training. The Ministry of Justice review panel recommended

“training for all participants in the family justice system”,

and I was heartened to hear my noble friend Lady Williams agree that judicial training needs to be revisited. I hope that she and my noble friend Lord Wolfson will be receptive to this amendment.

Domestic abuse affects all aspects of a family court case. It shapes how participants present at court, the evidence they give and how they give it, and it is a critical factor in determining the interests at stake and how safe child contact is arranged. However, as is recognised in the Bill, domestic abuse has a wide range of impacts and requires a wide-ranging, intersectional understanding. Mandatory training, delivered by domestic abuse specialists, will ensure that judges at all levels are much better equipped to understand the effects of domestic abuse and how to respond to it. As such, it will support and make possible the implementation of all aspects of the Bill. I note also that similar training is required for sexual violence, although that remains outside the scope of the Bill.

By stipulating that the training should be developed in consultation with the domestic abuse commissioner, we can ensure that it truly teaches current best practice and is aligned with national and specialist efforts to tackle abuse. As our understanding of domestic abuse improves, the courts will not, and should not, be left behind.

My focus so far has been on judicial training, but perhaps the real importance of the amendment is that it goes further than that, extending not just to members of the judiciary but to any Cafcass employees, social workers or appointed experts advising the court. That is why this amendment is so necessary. The Judicial College could offer better training for judges without it, but that is not enough.

Expert witnesses rightly play an important role in advising and guiding the family courts, but of course they do not have a thorough understanding of every field or every issue. Many expert witnesses, whose opinions might be crucial in shaping a court’s decision, are not experts in domestic abuse at all. They are not well placed to advise on whether domestic abuse is taking place or on what its impact might be.

Training which gives a full picture of domestic abuse—the context, the impact and how to respond—is therefore necessary in order that experts in our courts have a full picture of the situations they advise on. It will make them more aware of the risks and more attuned to the harm that could be inflicted. It will help implement the recommendations identified by the Ministry of Justice review, which called for training for all participants, including a cultural change programme and a multidisciplinary approach across all agencies and professionals. The result will be better processes for survivors and, crucially, better outcomes for children.

One survivor who contacted me recently described how Cafcass does not see her as a victim of domestic abuse because there are no broken bones or scars and because she seems like a strong and capable woman. But, as we all know, and as the Bill recognises, domestic abuse takes many more forms than just the worst manifestations of violence. It is no good changing our legislation to reflect that if we do not change practice as well. That requires training, and that is why we need this amendment.

[Lord Rooker (Lab) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady Helic. I will speak to Amendments 131, 132, 133, and 136. I shall not go back to my time in the Commons, when I dealt with some cases in a personal way.

I have had the benefit of a briefing from someone who has sat as a court independent domestic violence adviser and has what I will call direct, hands-on street experience and remains involved in the wider processes. She has worked in the voluntary sector and in law enforcement, so her experience comes from both sides.

17:45

Regarding Amendment 131, my briefer, as I will refer to her, said that confidentiality of refuge addresses should an absolute and non-negotiable issue. She has sat through many first appearances and trials and has seen that confidentiality breached a few times, but a few was too many. She said that many professionals do not seem to appreciate the hard work that is put into finding a safe refuge for women and children. It is not simply about finding accommodation for a person; there has to be safety planning and an intricate detailed risk assessment of whom the perpetrator might know or have links with in an area. There is also the schools aspect and the need to minimise the impact of the move for children while keeping the woman safe. As many others have said, giving out details of the refuge not only has safety implications for the case in hand but carries risks for the other refuge residents and, I might add, the staff. Therefore, the issue goes much wider, but non-disclosure of addresses ought to be non-negotiable.

On Amendment 132 and the duty to share information, my briefer points out that victims are often brought back to the family court over and over again by the same perpetrators, who often have restraining orders in place, so this is their only route. That, in a way, should be an offence on its own; otherwise, it simply makes the victim relive their abuse, despite having a court order in place for their safety. My briefer said that it is very hard for untrained professionals to pick up on that, as the perpetrator will often plead quite legitimate-sounding reasons to continue to bring the victim to the family court. So Amendment 132 is pretty crucial.

On Amendment 133, we have just heard an awful lot about the need for training. My briefer says that she used to dread family court attendances for domestic abuse cases, as the court did not quite seem to understand the safety planning issues involved in attending court. When working as a court independent domestic violence adviser, she would attend a criminal court and support victims through the family court as well. Criminal courts were well up to date with safety planning and would have dedicated advisers in court. In the family courts that she attended, more often than not my briefer would have to beg for the victim to be allowed in through the back entrance so as not to encounter the perpetrator. Mostly, she told me, they were denied that request. It was also hit and miss as to whether they would be allowed not to sit in an open waiting area outside the court entrance.

More training is required in the family courts so that professionals recognise that child contact is often a last-ditch attempt by a domestic abuse perpetrator to ascertain some level of control over their victim. My briefer had witnesses who had faced horrific domestic abuse and were then made to sit virtually next to the perpetrator to explain why they would feel unsafe if child contact were facilitated. So she supports the need for family courts to train all—I repeat: all—the staff involved in domestic abuse cases, so that they appreciate the true, long-lasting impact and effects of such abuse and are able to make attending court a lot less stressful, as well as implementing proper safety planning and bringing that into the everyday structure. I will not repeat some of the points I just made on Amendment 132.

My noble friend said that Amendment 136 on child contact costs is a probing amendment. I quite understand that. It is difficult, however, to see why victims should have to pay towards contact arrangements between a child and the perpetrator in domestic abuse cases. As my briefer pointed out, the family court and child contact are often the last attempts to control the victim.

Victims of domestic abuse often have to leave jobs; they would have to pay for the refuge if they were working, and the cost can be several hundreds of pounds a week. They are left sometimes trying to fight for a small amount of maintenance from the perpetrators —if indeed they can manage this—but they are not left with the funds to pay for such contact. That can be damned expensive to finance, and can drain the rest of the finances, adding to the pressures. The victims will have sometimes used all available funds to leave the abuse and start life again. These costs should fall on the perpetrator, partly to prove that they genuinely wish to see the child, and not simply using this contact as an excuse to see the victim at contact centres.

[Baroness Butler-Sloss (CB) [V]]

My Lords, I strongly support as much training as possibly can be given to everyone who works in any way in the family courts, but I strongly oppose the proposal that this provision should be in primary legislation. This is a matter for the Ministry of Justice; in relation to judges and magistrates in particular, it should be a matter for the Judicial College.

I am interested to see that magistrates who sit in the family proceedings courts have been consistently ignored in this debate, throughout many of the amendments. Many of these cases are actually in the family proceedings courts. Both the judiciary and magistrates have specific training from the Judicial College. I used to be the chairman of family training in the predecessor to the Judicial College; I certainly gained a great deal from seeking the advice outside the judiciary. Involving the domestic abuse commissioner is an excellent idea. She should be able to advise the Judicial College, particularly speaking to the family judges and the family magistrates, but this should not be part of primary legislation.

It is also important to bear in mind that each of the groups which are set out have their own training processes. Again, it would be important for the Ministry of Justice to discuss with social services and with the medical profession—almost certainly through the Royal College of Psychiatrists and the similar organisation for psychologists —whether they have adequate training for dealing with evidence of domestic abuse. Any other independent appointed experts should be looked at for appropriate training. I have no doubt that Cafcass gets training. It works with the Ministry of Justice and with the family courts, and its training is very important. But it is not appropriate in my view for this to be put into primary legislation.

I was interested to read a case in 2020 called H v F; the Court of Appeal gave helpful advice on the importance of the interface between the criminal courts and the family courts on domestic abuse issues and suggested that there should be specialist training for judges. I hope that that will be picked up by the Judicial College. It would be helpful for discussion for the president of the Family Division, but please do not put any of this into primary legislation.

However, although I do not support Amendment 133, I support everything the noble Baroness, Lady Helic, has said about the importance of training. I entirely agree with her suggestions and her very powerful speech, apart from the matter of primary legislation. I strongly support Amendment 134 because of the important research on trauma and its effect, as has already been said, on the ability of witnesses to give evidence. It is believed that very often the problems of not remembering certain things are because of trauma. There is a lot behind this which needs to become part of the training of all those involved in the family courts and domestic abuse cases. It is very important that there should be far more awareness of the impact of trauma on those who are the sufferers of domestic abuse.

Let me mention the two groups that I have referred to throughout Committee: the victims of forced marriage, and those of modern slavery who may not have gone through the NRM; even if they have, they need help for their trauma.

I do not think there is anything more to say about Amendment 136. Clearly the victim should not have to pay for the perpetrator to have contact; I should have thought any parent seeking contact should be expected to pay for it as a general principle.

[Baroness Verma (Con) [V]]

My Lords, I feel very privileged to be following noble Lords in speaking to this amendment. I want to put it on the record that I am chair of UN Women UK.

I shall speak briefly to Amendments 132 and 133. I fully support sharing information, from the perspective of women from minority communities. With the support of the work that H.O.P.E training is doing through Meena Kumari and her team, I have learned an awful lot, even though I have been working in this area for a very long time. I have come to the conclusion that the silos that exist have been compounded even further if someone is from an ethnic minority background, English is not their first language and they do not understand how to access services and opportunities. They live within multigenerational households, and when they finally try to leave and enter a refuge, it may not be equipped for their needs, or they enter the home of a friend of a relative who can also be put at risk.

It is critical to offer as much protection as possible and to try, through training of all our services,—whether it is the judiciary as in this case, or all our other services—to get a much deeper understanding of the perspective of women coming from minority communities, who do not have the opportunities to understand the wider support mechanisms that may be available to them. That is not just through language, but it is also through cultural norms of acceptance.

The noble and learned Baroness, Lady Butler-Sloss, talked about forced marriages and modern slavery. I have come across numerous cases of forced marriages, and seen the trauma and the effects of having lived within households where every single day was a day of abuse, not just by one perpetrator but by many family members. Trying to find the will to escape and then finding yourself sitting in court rooms with the whole family on one side and you alone as a survivor on the other—it is incredibly difficult to explain the long- lasting effects of that. I cannot imagine how that is ever going to leave you and your psyche.

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To come back to the points I have listened to today, I hope very much that my noble friend will note my plea that these amendments must also be seen from the lens of those people from BME communities who have no real opportunity to understand where to access support. Once they are in a system, the system must share their circumstances across the different agencies, so that they do not find themselves reliving trauma, again and again, in trying to navigate the systems themselves, and then give up.

My final point comes from what my noble friend Lady Newlove said: we must not disempower people. When they take the step to stand up and see people in court, that is the time for us to put all systems behind them to give them the power to get justice and to live a life as a normal, ordinary human being should live their life, with their own human rights.

[Baroness Warwick of Undercliffe (Lab) [V]]

My Lords, I will speak briefly on these amendments. It is a great pleasure to follow the noble Baroness, Lady Verma, and indeed all the speakers in this thoughtful and very practical debate.

I support Amendments 131 and 133 in particular. On Amendment 131, the Minister has already said that under no circumstances should the address be disclosed of the refuge in which the sufferer of domestic abuse resides, but we have heard from the noble Baroness, Lady Bertin, of the extraordinary lengths to which perpetrators will go to stalk or otherwise pursue their victims. We have also learned of not only the physical danger to which this exposes the sufferer but the mental fear and anguish that it perpetuates.

The Government accept the principle that an address must not be disclosed in any circumstances because of the potential appalling consequences, but unless non-disclosure is a legal imperative captured in the Bill, embedding this principle and maximising compliance with it will be weakened. Ambiguity and thoughtlessness in releasing a victim’s address will be allowed to prevail, with all the potential consequences we know that could reap.

The formal procedures of a court are intimidating enough for any citizen to think at least twice before embarking on a judicial case. How much more intimidating it must be for those who know that their very life might depend on the anonymity of their whereabouts. If they have any doubt that they can rely on the court to protect them, that in itself could be a deterrent against proceeding with their case. Putting this amendment in the Bill would be an enormous reassurance to a victim, and a greater discipline and constraint on those who could potentially release their address.

On Amendment 133, it is worth reminding ourselves of the amount of evidence we have heard about just how traumatic survivors of domestic abuse find the court process. One cannot help thinking that some of those procedures were designed, even if not intentionally, to daunt or dishearten those who did not have the greatest confidence either in themselves or in the merits of their case being understood and accepted, especially as waiting times are as long as they are. Those who have had their confidence and courage systematically beaten out of them might be forgiven for thinking that the courts are not there to help them.

From reading the debate in the other place on the Bill, I was struck in particular by a comment from Peter Kyle MP, a long-time campaigner on these issues. Having recounted the awful experiences of some of his constituents, he went on to say that in his lobbying for change

“Minister after Minister told me that a cultural change was needed in the … justice system.”—[Official Report, Commons, Domestic Abuse Bill Committee, 11/6/20; col. 271.]

The evidence submitted to us in the briefings from Refuge and other organisations suggests that there are too many such instances of judges and other professional workers in the judicial system failing to understand the dynamics of domestic abuse and so failing the survivor, who has often made a brave and fearful decision to make the accusation and come to court in the first place.

Most organisations and systems must at some time accept the need for cultural change, and it is never easy. I hope that this proposal is not dismissed on the basis that such soft skills do not belong in a court of law. The courts have come a long way but, on the evidence of the many cases that we have been told about in letters and briefings, they clearly have further to go. Putting this requirement in the Bill would be a real signal of intent to make that change. I noted what the noble and learned Baroness, Lady Butler-Sloss, said, and if the Minister is inclined to agree with her, I hope that he will take personal responsibility for ensuring that the necessary training is undertaken.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, I broadly welcome this group of amendments. Although I have concerns about some of them, which I will explain, and it may be that the precise drafting of some would benefit from revision before Report, it is clear that they are drafted and tabled with a view to responding to the harsh plight of victims of domestic abuse as they go through the court system. If they have a common thread, it is about understanding and responding to the vulnerability of victims and the trauma of the abuse that they have suffered.

I will make a few points on each of the six amendments. On Amendment 131, it is plainly right that the addresses of refuges should be kept confidential. The whole point of a refuge is to enable victims of domestic abuse to feel safe from their abusers. It is of the essence that victims should feel confident that they will not be sought out and found by abusive former partners. Often such victims are with children, and the trauma that they have suffered at the hands of their abusers has left them not only protective, but scared for their own futures and those of the children who have come with them to the refuge. Courts must guard against giving refuge addresses away.

We have heard that abusers have traced victims to refuges as a result of carelessness within the court system, which has sometimes had serious results. The noble Baroness, Lady Bertin, gave us a harrowing example. It may be that the provisions of the amendment are slightly too wide, and that the assumption that refuges can be expected to have both an office and a residential address is too optimistic, as my noble friend Lady Hamwee pointed out, but the principle is one that I hope the Government will welcome.

Amendment 132 is designed to ensure that courts dealing with different cases of domestic abuse involving the same victims share information with each other. This is to enable greater co-operation between courts and to ensure that where, for example, criminal proceedings and family proceedings concerned with the same victim are continuing alongside each other, each court will know about the proceedings in the other. Again, the amendment may need some redrafting to achieve clarity, but the principle is right. However, I wonder whether an enlarged or parallel provision should be introduced requiring a similar exchange of information between courts involving the same abusers, as this amendment deals with information about the same victim.

Amendment 133, concerned with training for the judiciary and professionals in the family court, is the most important of these amendments, as my noble friend Lady Hamwee, the noble Baroness, Lady Helic, the noble Lord, Lord Rooker, and others, have reflected, though I share the hesitation of the noble and learned Baroness, Lady Butler-Sloss, about enshrining this in primary legislation. Judges generally try to keep up to date with evidence about domestic abuse and try hard to apply the law in accordance with the evidence that they hear, putting aside, as far as they can, their own prejudices. However, we must recognise that most judges and legal professionals come from a world that differs dramatically from the world that is home to many of the litigants who come before them: victims, abusers, witnesses and others. The more training that judges and professionals receive in understanding domestic abuse, the better.

The amendment as drawn does not define how the training is to be established, except that it is to be in consultation with the domestic abuse commissioner. On reflection, I think that is right. We have a commissioner- designate who is genuinely expert in this field and dedicated to achieving an improved response to domestic abuse. I believe that training should also encompass learning to recognise and respond to vulnerability and to take into account the effect of abuse-related trauma on the ability of witnesses and parties to give evidence before the court, and the quality of the evidence likely to be received. I would go a little further than the amendment and require that, before any circuit or district judge sits to hear a family case, they must have completed mandatory training in domestic abuse, as arranged pursuant to the amendment.

I regard the training Amendment 133 as more likely to be effective than Amendment 134, which would require the court to consider the vulnerability of victims of domestic abuse, who are witnesses and parties to proceedings, and the impact of trauma on the quality of the evidence that they give. This is in tune with the objects of the Bill and no one could disagree with the motivation behind it but, generally in domestic abuse cases, judges try to consider the vulnerability of witnesses and parties, and the effect of trauma. Many, even most, succeed in so doing. I hope that the view I have just expressed does not reflect complacency. It reflects the general view that judges are trying to do justice, with regard to vulnerability, sensitivity and the circumstances of particular cases. Such judges benefit enormously from training but, for them, I expect the amendment is unnecessary.

Secondly, if judges fail properly to consider vulnerability and the impact on evidence from the trauma of abuse, that stems from a lack of understanding or training to which the training amendment is directed. It cannot be properly addressed by a bare statutory requirement imposed on judges to consider these matters.

Finally—and I hope I will be forgiven some cynicism—there is the problem well known to lawyers that, if a statute requires a judge to consider two or more factors, call them A and B, the judgments of the less good judges will always state, boldly but sadly inaccurately, “I have fully considered factor A and factor B. In the circumstances, I have concluded”, and the conclusion follows, however flawed it may be, in its unappealable compliance with the statute, which is matched only by its lamentable lack of understanding.

I agree with the principle of Amendment 135 on the transparency of court arrangements, which is that every litigant who is unhappy with the result of a court hearing should leave court with full information about the appeal process. However, I do not believe that that should go into the judge’s ruling. Often, although not always, rulings in family cases are given in oral judgments delivered at the end of hearing the case. They are very important in setting out the judge’s reasoning, particularly for the Court of Appeal, but also for the parties. I have never been completely confident that the parties, who are generally shell-shocked by the proceedings, listen to every word that the judge says.

It should be incumbent on the court administration to ensure that a document setting out the appeal process, in clear terms, is given to every party and possibly others who want it, on departure from court at the end of the day. It should contain details for the court and a helpline equipped to assist with the relevant information. As the noble Lord, Lord Rosser, said in his introduction, this is a probing amendment and it could easily be met by ensuring that this information is available through administrative functions in the court.

Amendment 136, the final amendment in this long and diverse group, would impose an absolute rule on costs of contact. I find this difficult because it appears to be a provision dealing with extraneous financial matters in the context of contact, and that is something that the courts try not to do. I cannot see, for example, why a court that decided that contact between a parent and child was appropriate in the particular circumstances of a given case should be forbidden in some circumstances, though they may be rare, from directing that the other parent pay for or contribute to the cost of arrangements for that contact on the sole ground that the other parent has made an allegation of domestic abuse, or even on the ground that the parent with whom the child is to have contact has in fact been found guilty of domestic abuse.

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I take as an example the case of a father who is broke and who is accused of domestic abuse by the wealthy mother of his child. If the court takes the view, in all the circumstances, that the child—whose welfare is rightly paramount—should have contact with the father, how is it in the interests of that child for the court to be forbidden by statute to direct in any circumstances that the wealthy mother should pay or contribute to the cost of the child’s having contact with the father, thus frustrating the clear intention of the court that such contact should take place? This amplifies the point that I made earlier, that judicial discretion has a very important place in these decisions and the making of them, and that imposing absolute rules or prohibitions on the courts can sometimes be entirely counterproductive.

The amendments in this group raise a number of difficult points of principle, and I and others will be extremely interested to hear what the Minister says in reply.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful to my noble friend Lady Bertin and the noble Lord, Lord Rosser, who have spoken to the amendments tabled by the noble Lord, Lord Ponsonby. The amendments relate, as has been said, to a number of different aspects of the family courts. I hope it will be convenient for the Committee if I take each amendment in turn.

I turn first to Amendment 131, tabled by my noble friend Lady Bertin, which, as she says, is a probing amendment. It recognises the crucial role of refuges in supporting victims of domestic abuse and their children. I must thank my noble friend for her time in being willing to discuss with me this amendment, and indeed others.

The amendment raises two important issues. I will first address that of the disclosure of the residential addresses of refuges. Existing legislation and family court procedural rules allow parties to apply to withhold their address and that of their children from other parties. There is therefore no requirement for those engaged in family court proceedings to disclose their address. During family court proceedings, 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. In those circumstances, details of the child’s address and who they are living with are disclosed only to the court, not the other parties, in the first instance. The court then determines how that information should be used. Where there are allegations of domestic abuse, the court can and does hold that information as confidential. The noble Lord, Lord Rooker, said that this was of critical importance and the noble Lord, Lord Marks, said it was essential, and I do not dissent from that.

Subsection (3) of the proposed new clause would prevent the service of a court order at a refuge’s residential address. I fully appreciate that victims living in a refuge are fearful for their safety, and that receiving or witnessing the service of an order at a refuge could be very distressing. In that context, I take on board the point made by the noble Baroness, Lady Hamwee, that one must bear in mind the position of other occupants of the refuge as well. In that context, therefore, the two cases illustrated by my noble friend Lady Bertin are concerning.

However, I am clear that there are contexts in which the court may need to serve an order on a party at the refuge they are staying in, and where not doing so may pose unintended risks to the safety of children involved in family law proceedings. For example, there may be a concern that a child might imminently be taken out of the jurisdiction. The welfare of the child is of key concern in family court proceedings. Where the courts have urgent welfare considerations, they must be able to take swift action to locate the child. We must not risk impeding the court’s ability to act immediately to safeguard a child by limiting the addresses at which an order can be served.

As my noble friend has outlined, the courts may already direct bespoke service arrangements based on the facts of a case. The Family Procedure Rules 2010 allow for court orders to be served at alternative addresses, such as the refuge office address, if that is suitable. Of course, as the noble Baroness, Lady Hamwee, and the noble Lord, Lord Marks, pointed out, it may not always be suitable. As such, I am confident that the important outcomes sought by my noble friend are already provided for in existing legislation and court procedure.

I should add in this context that the Family Procedure Rules, as I have said, allow for parties to apply for their contact details to be kept confidential from other parties. But even where such an application has been made, parties retain responsibility for ensuring that any form or document they submit to the court does not contain the information they wish to keep private. We have to consider in this context documents received from other people, such as medical reports or financial statements. It is difficult, if not impossible, for court staff to check all documents submitted to the court for any unintentional—I emphasise unintentional—disclosure of contact details.

Therefore, given that background, I submit that the proposed clause is unnecessary and, perhaps more importantly, would bring with it some obviously unintended, but very real, potential risks to some of our most vulnerable children. Existing legislation and rules allow for the protections sought through this amendment. But we recognise that, as we have been told in a number of cases this evening, concerns have been raised in individual cases before the courts. The Government are committed to protecting vulnerable victims of domestic abuse, and of course this extends to those residing in refuges in particular. We actively work with members of the judiciary, who are committed to exploring whether and how existing procedures and guidance could be strengthened to ensure that those residing in refuges are protected.

Before I turn to the next amendment, I once again thank my noble friend Lady Bertin for raising this issue, both by way of this amendment and in her discussions with me on this matter. It is clear that, across the Committee, we share the same aim—the only real question is how we best achieve it.

As the noble Lord, Lord Rosser, has explained, Amendment 132 seeks to place a duty on courts to share information relating to victims or those at risk of domestic abuse, and imposes an obligation on the family court to consider making a barring order where information shared by another court identifies that court proceedings may be being used to continue abusive behaviour towards the victim.

I have a great deal of sympathy for the aims of this amendment, and I agree that better information sharing, in particular between the family and criminal courts, on the issue of domestic abuse is important. The noble Lord, Lord Rosser, was kind enough to acknowledge that there were some drafting issues with this amendment. Indeed, there are such issues, and therefore I hope the Committee will find it helpful if I reply on the questions of principle and not on points of drafting.

The Government are actively considering what more can be done to improve the sharing of information between civil and criminal courts dealing with family proceedings, including through the development of integrated domestic abuse courts, which will be piloted later this year and seek to progress family and criminal cases in parallel. I hope that goes some way to meeting the concerns expressed this evening by my noble friend Lady Newlove.

In particular, I draw to the Committee’s attention the recent amendment to the Criminal Procedure Rules, which comes into effect on 5 April. This will impose a duty on parties to criminal proceedings to alert the criminal court to any related family proceedings, and it encourages the exchange of relevant information with a court dealing with those proceedings. We consider the issue of information sharing between the jurisdictions to be more appropriately addressed through procedural rules, rather than in primary legislation, because the court processes are somewhat technical in nature, I am afraid—and, of course, one has to bear in mind the often technical nature of management information systems.

Alternatively, there is also the issue here of judicial guidance, where the court has a discretion over what information should be shared and with whom. I assure my noble friend Lady Verma that, in that context, the position particularly of women from minority communities, who may be more affected by the sometimes siloing nature of our court processes, is kept very much in mind. How to access support and manoeuvre one’s way through the system once one is in it is of central importance in this context.

I move on to the related but separate issue of the use of Section 91(14) orders under the Children Act 1989, often referred to as “barring” orders. The amendment proposes that the family courts are placed under a duty to consider such an order where it appears, based on information shared by another court, that cases are being brought by a perpetrator of abuse as a means to carry on their abusive behaviour.

The noble Lord is right to raise the issue of perpetrators using the family courts as a means to continue their abuse, highlighted in the report by the Ministry of Justice’s expert panel on harm in the family courts, published in June last year. The sad fact is that domestic abuse perpetrators do sometimes use the courts as a way of perpetrating their abuse, often bringing their victims back to the courts repeatedly, which, obviously, can be retraumatising. In our response to the report, the Government committed to exploring how we could further clarify the availability of Section 91(14) orders in the family courts to further protect victims of domestic abuse.

The amendment proposed by the noble Lord would place a duty on courts to consider making a Section 91(14) order, but only where relevant information has been shared by another court. We are determined that courts should never be used as a forum to perpetrate further abuse. In that context, I am clear that further clarification is indeed required to the law on barring orders to ensure that the use of Section 91(14) is available to parents and children to protect them where further proceedings would risk causing them harm or further abuse. The evidence suggests that these orders are currently underused in circumstances involving domestic abuse and that they could be an effective tool to further protect victims and survivors.

In answer to the question put to me by the noble Lord, Lord Rosser, and my noble friend Lady Newlove as to when we will come back with further thoughts on this matter, the short answer is: before Report. Therefore, I thank the noble Lord for drawing attention to this matter, which we are actively considering. We are considering what more can be done to ensure the effective use of Section 91(14) orders in domestic abuse cases. As I have said, we will consider this issue carefully ahead of the next stage of the Bill.

I turn now to Amendment 133, on training for judiciary and other professionals in the family court. The noble Lord, Lord Marks, said that this amendment was the most important of the group. I am tempted to agree, though that is not in any way to undermine the importance of any other amendment. To use a word that I think was used by the noble and learned Baroness, Lady Butler-Sloss, training is critical in this area.

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I am clear on the need to ensure that these professionals are fully supported and equipped with the knowledge and skills to properly identify and understand the impact of domestic abuse on victims and their children. In that context, the noble Baroness, Lady Warwick of Undercliffe, is no doubt right that the court process can appear daunting to non-lawyers and especially daunting to those who are already the victims of domestic abuse.

It is for those reasons, among others, that training for professionals is essential. That is why the Government have already committed to improving domestic abuse training across the family justice system. In this context, I listened with concern to the examples given by my noble friend Baroness Helic and the noble Lord, Lord Rooker, of cases where, despite the training given, judges appear to have unwittingly made a bad situation worse. Judges, like all of us, are human and, although such cases no doubt exist, it is important to use this occasion to also pay tribute to the members of the judiciary who sit in the family court. They deal with the hardest cases that come before the courts with care and compassion and with an urge to do justice in the particular facts of each case.

In the Government’s response to the harm panel report published last year, we acknowledged that more could be done to improve domestic abuse training. We have committed to trial improved guidance and training across the family justice system in England and Wales, but we are not persuaded that primary legislation is the way to go about this. Rather, the individual bodies that make up the family justice system each have their own requirements for the undertaking of domestic abuse training. I suggest that there is benefit in allowing those different bodies to tailor and adapt their training and approaches, which will depend on the needs of their staff and the people they work with, so that the training is bespoke rather than “one size fits all”. We will be doing further work with all those bodies, in particular the Judicial College, as part of the implementation of the Bill.

Planning for reform across family justice is under way and training is a crucial element of that reform. I can assure noble Lords that the relevant sector leaders, including government, the judiciary, Cafcass and social workers are already engaged and supportive of this aim. I can assure the noble and learned Baroness, Lady Butler-Sloss, in particular that we will be working with the Judicial College as part of the implementation of the Bill. I will read and take on board the comments made by the Court of Appeal in the case to which she referred as part of that.

I will pick up one point made by the noble Baroness, Lady Warwick of Undercliffe, who talked about soft skills. I confess, I have always found that a very unfortunate description. Those soft skills are actually very hard to learn and, sometimes, by using the phrase “soft skills”, there is a danger that we underplay their importance. Those soft skills are very important and they will play a part in the training, but they will be contextualised to the needs of the particular group.

Having said all that about training going forward, I emphasise that I am not negating the value of existing domestic abuse training, which is significant. Sector-specific training supports professionals across the family courts, with appropriate variation to allow for focus on key aspects of importance for different professions. The judiciary and Cafcass social workers all already receive domestic abuse training via their respective professional frameworks. As has been said, for many of the professionals in the family court, such training and development is mandatory for the purposes of continued professional registration. In that context, I know that both Cafcass and the judiciary have recently piloted new domestic abuse training and will be rolling out more this year. As part of their post-qualifying standards, children and family social workers are expected to have the knowledge and skills to identify the impact of domestic abuse and to work with other professionals to ensure that vulnerable adults and children are safeguarded.

For those reasons, I am confident that the Government are already seeking the same outcomes as the noble Lord is in his amendment. We are committed to improving the experience and outcomes of domestic abuse victims and their children in the family courts and we recognise the central importance of training in this.

Amendment 134 highlights the issue of the impact of trauma on the evidence given by survivors of domestic abuse in family law proceedings. We know that many of the survivors of domestic abuse whom we see in the family courts have suffered trauma, and that the effects of this can be wide-ranging and long-lasting. I respectfully agree with the noble Baroness, Lady Hamwee, that we are still learning in this regard. The effect of trauma on the brain has been said by some to be the final frontier of medical science. We do know, even now, that this trauma can have a material and detrimental impact on the evidence that people who have been subject to trauma can give to the court, and the means by which it is appropriate for them to give that evidence. It is important that we do all we can to ensure that they are not retraumatised by the court process, and that they can give good quality evidence to the court. It is fair to recognise the steps which have already been taken in this context, and the judiciary’s awareness of this matter, as explained to the Committee by the noble and learned Baroness, Lady Butler-Sloss.

I will take this opportunity to set out—I hope fairly briefly—how the current practices and procedures in the family court do protect survivors of domestic abuse, and the work which is ongoing to strengthen that protection. We are aware, as a result of the harm panel report, that many domestic abuse survivors continue to experience retraumatisation through the family court process. The noble Lord, Lord Rosser, asked me what work is being done; I will explain. In response to that report, the Government have initiated a number of steps to improve the support and protection provided to domestic abuse survivors in the family court. The Committee has already debated some of these in the context of the provisions in Part 5 of the Bill. I referred earlier today to our commitment to improving the use of barring orders and our plans to pilot integrated domestic abuse courts. We are also working with the President of the Family Division to consider amending practice directions to ensure that independent domestic violence advisers, domestic abuse advocates and mental health advocates are allowed to accompany the party they are supporting in court.

We can also look to the experience and knowledge of our judiciary—who are experts in assessing the credibility of witnesses and are given considerable training in domestic abuse—to identify those cases where further protections are required. I agree with the noble Lord, Lord Marks, that Amendment 134 brings the Committee back, in large part, to the issue of training raised by Amendment 133. That training identifies the range of behaviours that domestic abuse can encompass, including emotional, economic, physical, and sexual abuse, and the dynamics that may be present in an abusive relationship. For family court judges, training on vulnerable court users is also provided through scenarios, including relevant issues in case studies that judges are asked to consider in syndicate exercises. I agree with the noble Lord, Lord Marks, that it is dangerous, not only for the reasons he gave but also as a matter of principle, to put specifics in statute, where the matter is best left on a general basis for the judges to apply their discretion and powers on a case-by-case basis.

I turn to Amendment 135 and the transparency of court arrangements for the appeals process. It is one of the cornerstones of our legal system that there must access to justice for all. That means that the court process needs to be as accessible as possible, allowing parties effectively to navigate the justice system, and that includes the appeals process. It is therefore important that parties know when they are able to appeal against a court decision, what the court process is for doing so and, as was pointed out in the debate, any relevant time limits that may apply. That applies in all cases, but perhaps particularly where domestic abuse is in issue. In that regard, I listened with care to the personal experience that my noble friend Lady Newlove brought to this part of our debate.

The amendment seeks to impose a duty on the Lord Chancellor to amend the Family Procedure Rules to place a requirement on a judge in family proceedings involving domestic abuse to include information on the appeals process as part of their ruling. In the Courts Act, the power already exists for the Lord Chancellor to require the Family Procedure Rule Committee to make provision for this in the Family Procedure Rules, so to this extent the amendment is unnecessary. However, I should point out that this power has not been used since the enactment of those provisions, because it has been regarded as preferable for the Lord Chancellor to work with the Family Procedure Rule Committee to agree procedures, rather than imposing requirements on it.

Nevertheless, there is an important issue raised in the noble Lord’s amendment: the accessibility and comprehensibility of the appeals process. I appreciate that family court proceedings often involve complex subject matter and court procedure. The Government are committed to supporting parties to navigate the justice system and understand the options available to them. In response to the point put to me by the noble Lord, Lord Marks of Henley-on-Thames, Her Majesty’s Courts and Tribunals Service now provides guidance, both in hard-copy form and online at GOV.UK, explaining the court process, and that includes how to appeal against a decision made in the family court. That information indicates that parties may wish to seek legal advice and also signposts the support services of Citizens Advice and local law centres.

Moreover, in August last year, the Government announced the launch of a joint initiative with the Access to Justice Foundation, which provided £3.1 million of funding to not-for-profit organisations across the country at a local, regional and national level to provide free legal support, known as the Legal Support for Litigants in Person programme. The aim of that initiative is to ensure better advice and clear guidance for people without legal representation. Importantly, alongside helping litigants in person to understand legal processes and their rights within them, they will also be provided with practical support throughout the duration of proceedings.

Finally, I turn to Amendment 136, which seeks to prevent family courts including in a Section 8 order any provision requiring a victim or complainant of domestic abuse to pay or share the costs of child contact in specific circumstances.

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In a case where domestic abuse has occurred but the court none the less considers that direct contact is safe and beneficial for the child—which of course brings us back to an earlier debate today—the court will consider if any directions or conditions are required to carry the order into effect. In particular, the court will consider whether contact should be supervised and, if so, where and by whom. The court will also consider whether such contact should be for a specified period or contain provisions that are to have effect for a specified period. That could include, for example, transitional arrangements for a limited time.

In considering whether to make an order for any interim direct contact, the court can require that to take place under supervision. Cafcass has contracts with a number of supervised child contact centres to provide a fixed number of sessions that enable the impact of direct contact to be monitored and reported to the court. No charge is made to the parties for those sessions and, in 2019-20, Cafcass spent £1.9 million to provide more than 2,000 families with support through this short-term intervention.

In response to the point made by the noble Lord, Lord Rooker, I should say that the Government acknowledge concerns about the ongoing costs of contact arrangements for domestic abuse victims once proceedings have concluded. As we stand here today, it is not clear in what circumstances, or indeed how often, orders for paying or sharing the costs of contact are made. Nor is it clear in how many cases domestic abuse victims are required to pay such costs. Not all cases involving domestic abuse are the same and it would be important to understand the circumstances in which the court may order costs to be paid or shared and why. In that regard, the example given by the noble Lord, Lord Marks, is valuable and underlines the point that I have sought to make on a number of occasions this evening—the critical importance of treating each case on its merits and allowing the judge to have suitable discretion to make an appropriate order in each individual case.

However, the Government have already made a commitment in response to the harm panel review to commission a study on the implementation of current judicial guidance in cases involving domestic abuse and other forms of harm. We would not want to pre-empt the findings of that study and will consider further recommendations in that regard in due course. Therefore, in response to the question put to me by the noble Lord, Lord Rosser, as to when we would be able to provide further information on this point, I am afraid that I do not want to pre-empt the result of that study.

I apologise to the Committee for the length of my reply but that has been the case for two reasons. First, the amendments each raise important and sometimes quite complex issues. Secondly, it was right and proper to acknowledge the important speeches and contributions made on each of the disparate points. I hope, therefore, that I have been able to reassure my noble friend Lady Bertin and the noble Lord, Lord Rosser, that the Government take seriously the issues that they have raised and that they will be reassured by my somewhat lengthy explanation and the actions we are taking to address these issues. With that, I invite my noble friend to withdraw her amendment.

[Baroness Bertin (Con)]

It is a huge honour to try and sum up such a rich and important debate. I made many notes, a lot of which I cannot read, so I will try to keep my remarks very brief. I thank noble Lords for their contributions and I have learnt a huge amount. I put it on record that the Government have made significant and worthwhile changes to the family court system. They have listened to the experts and been constructive in this area.

Perhaps I may respond briefly on the amendment—the only one in my name in this group. I thank my noble friend the Minister for his thorough response. He is kind, even when he disagrees with you, and I am grateful for small mercies. I noted that his position has not moved a great deal since Committee in the other place. That is a shame and I respectfully and robustly refute the charge that the amendment could somehow endanger children; I do not accept that. Wanting to keep refuge addresses completely confidential does quite the opposite. When the matter was raised by my noble friend Lord Young of Cookham the other week in another debate, my noble friend Lady Williams expressed serious concern that not keeping refuge addresses confidential could ever happen, and I believe that the MoJ has now reached out to the refuges in question, which I welcome. I therefore thank the Minister for reiterating the point that the Government are working closely with the judiciary to explore how existing procedures and guidance could be strengthened to ensure that those residing in refuges are protected.

I thought the noble Baronesses, Lady Newlove and Lady Helic, the noble Lord, Lord Rosser, and many others did an excellent job at explaining the remaining amendments in this group. On Amendment 132, I am genuinely shocked that there is no duty on courts to share information, so you can have a victim of domestic abuse in several processes—family courts, civil courts, criminal courts—yet there is no sharing of the information. Surely the judge needs a full understanding to assess the risk. I am not a lawyer, and I know that the law is a complicated creature, but it seems to defy basic good sense. The Minister said that the Government are going to try and change things to make the criminal and family courts run in parallel, which I welcome. This is a little awkward, because I want to do justice to other noble Lords but I do not know what they think of the response from the Minister. But I thank him for the positive remarks on Amendment 132. This sounds like a step in the right direction; improving the use of barring orders certainly does.

I think we can all agree that Amendment 133 is a key amendment and hugely important. It is a great shame that the Minister is not persuaded by primary legislation. I find myself in the unusual position of disagreeing with the noble and learned Baroness, Lady Butler-Sloss, on this. I have enjoyed all her contributions and I think she is so knowledgeable, but I say on behalf of the noble Baroness, Lady Helic, that she wants to pursue this in later stages of the Bill.

On Amendment 134, it sounds like family courts are behind the curve on trauma, and we need to do a great deal more to understand the implications.

The noble Baroness, Lady Newlove, set out a powerful case for Amendment 135. Feeling totally overwhelmed and alone are such common emotions for victims and, as the noble Baroness, Lady Verma, said, and many noble Lords echoed, we must not disempower people.

There are more conversations to be had, if I am honest. But, as I said, mine was a probing amendment, and I withdraw it.

Amendment 131 withdrawn.

Amendments 132 to 136 not moved.

Clause 65 agreed.

[The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)]

We now come to the group beginning with Amendment 137. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or the other amendment in this group to a Division must make that clear in debate.

Amendment 137

Moved by

[Baroness Newlove]

137: After Clause 65, insert the following new Clause—
“Offence of non-fatal strangulation or suffocation
(1) A person (“A”) commits an offence if that person intentionally strangles or suffocates another person (“B”), where the strangulation or suffocation does not result in B’s death.(2) A strangles or suffocates B if A impedes B’s breathing, blood circulation, or both, by doing any of the following (manually or using any aid)—(a) blocking B’s nose, mouth, or both; or(b) applying pressure on, or to, B’s throat, neck, chest or more than one of these.(3) A person guilty of an offence under this section is liable—(a) on summary conviction—(i) to imprisonment for a term not exceeding 12 months (or six months, if the offence was committed before the coming into force of paragraph 24(2) of Schedule 22 to the Sentencing Act 2020), or(ii) to a fine, or both;(b) on conviction on indictment, to imprisonment for a term not exceeding 7 years, or to a fine, or both.”

[Baroness Newlove (Con) [V]]

My Lords, Amendments 137 and 138 are in my name and the names of the right reverend Prelate the Bishop of London and the noble Baronesses, Lady Meacher and Lady Wilcox. I thank them for working with me on this, as have the noble Lords, Lord Marks, Lord Anderson, Lord Blunkett, Lord Trevethin and Oaksey, and others. I am most grateful to all noble Lords who have indicated their support to me. I am also grateful to the Government for listening to the arguments put forward on Second Reading and for meeting my colleagues on this.

I welcome the Lord Chancellor’s announcement that he wants to see this offence on the statute book, with a maximum sentence of seven years. The Government are minded to include the offence in the police, crime, sentencing and courts Bill rather than this one. I will argue that it sits best in this Domestic Abuse Bill; I very much welcome the Government being open to discussions on where it should sit and on the wording of the amendment.

This new offence should be in this Bill because it is concentrated in domestic abuse cases. One police force recently assessed a random sample of its cases featuring strangulation and found that 80% were intimate partner violence while 20% were other family abuse cases. This is clear evidence that this crime features predominantly within domestic abuse. It is important that this offence is regarded by the police and prosecutors as part and parcel of the criminal justice response to domestic abuse. Having it in this Bill will enhance the understanding that this type of offending is very much about domestic abuse. It is an offence used to frighten and have control over a person.

The amendments I am proposing would each add a new clause to the Bill to establish an offence of non-fatal strangulation or suffocation. Amendments 137 and 138 are alternatives. The first refers to all non-fatal strangulations or suffocations; the second limits the offence to those where the victim and perpetrator are personally connected, as defined in Clause 2. If the first amendment fails, the second will be next best. The first, Amendment 137, is preferable, as it would protect more women—for example, those attacked by acquaintances or strangers and those in a more casual dating situation.

Some might argue that as the Bill is for domestic abuse only, Amendment 138 should be considered. However, there are two reasons I urge noble Lords to accept the first alternative. First, it is consistent with the Istanbul convention, which forms part of the policy context of this Bill. The Istanbul convention sets out to prevent and combat violence against women in all situations, as well as to tackle domestic violence. The wider amendment is consistent with this. Secondly, the Government’s amendment, described as the “rough sex” amendment, introduced in the other place and now in the Bill as Clause 65, is rightly not limited to people who are personally connected. It covers any situation, as the Government accepted this was an opportunity to address such harm more widely. The same logic applies for non-fatal strangulation or suffocation, which affects 20,000 victims every year in the UK.

As noble Lords can imagine, being strangled is terrifying. Fear of imminent death is a primal fear—we can all imagine that—and victims of these attacks are right to be fearful. Less pressure than it takes to open a canned drink stops blood flowing to the brain. Loss of consciousness quickly occurs, normally in as little as 10 to 15 seconds. Incontinence of urine tends to happen at around 15 seconds and bowel incontinence at around 30 seconds. A strangulation can quickly be fatal if it triggers a heart attack, in which case death can occur within a few seconds.

When a strangulation is survived the victims may have other health problems, such as a fractured trachea, internal bleeding, dizziness, nausea and tinnitus. A break in the flow of oxygen to the brain causes neurological problems such as memory loss, facial droop and an increased risk of miscarriage—even a stroke several months later, as a result of blood clots. Many of these medical effects would come as a surprise to most members of the public, including the police, who therefore do not understand the seriousness of these crimes. Similarly, survivors of domestic abuse may not realise the true dangers they face.

19:00

In New Zealand, the introduction of a new offence triggered increased knowledge in the medical profession and the increased use of medical evidence in prosecutions. I am glad that the Government recognise that, as it stands, the law simply does not operate well for non-fatal strangulation. Our existing laws on assault are a very poor fit, as they focus on visible injuries. Here, there is a high level of violence but little or no visible injury. Having a stand-alone offence will make assessing cases much more straightforward for the police and prosecutors.

We can be even more confident about this knowing that the Police Superintendents’ Association supports this new offence. That speaks volumes because its members include the public protection police leads, who deal with domestic abuse. These are senior officers with specialist knowledge; they know what makes a difference on the ground. Given that this is a grave and frequently occurring offence, it is important to get it on the statute book as soon as possible. I appreciate that the Committee will not want to rush this. As the noble Lord, Lord Anderson of Ipswich, said at Second Reading,

“hurried law can be bad law”.—[Official Report, 5/1/21; col. 92.]

However, in this case, given how much work and thought has gone into this already—and given the experience of other countries—I am confident that we can proceed with the offence in this Bill.

We are nearing the end a journey for the Bill which began four years ago. Placing this offence in another Bill that has not yet had its First Reading—and which, I understand, is unlikely to reach Royal Assent until the end of this year—would be a considerable delay. We know that, in the UK, two women are killed every week by a partner or ex-partner. By this time next year, another 100 women will have lost their lives—women very much loved by their families and friends. A high proportion of them will have suffered non-fatal strangulation before their deaths.

Clearly not all deaths can be prevented, but some can. Improving protection is so urgent. We must not delay. This is a real opportunity to save those victims’ lives. I look forward to working with Ministers on this issue, and I hope that the Minister can assure the House that the Government will introduce this offence, without delay, as part of this Bill. I urge all noble Lords to support this amendment and beg to move.

[Baroness Wilcox of Newport (Lab) [V]]

My Lords, the important issue of non-fatal strangulation has been introduced comprehensively and powerfully by the noble Baroness, Lady Newlove. I commend her on her tremendous work in campaigning and lobbying to bring this issue to public attention. We support these vital amendments and our stated preference is Amendment 137 as opposed to the wider Amendment 138. However, both of the amendments would make non-fatal strangulation or suffocation a standalone offence on the statute book and should be located within this Bill.

A separate offence of non-fatal strangulation would help the police to spot domestic abuse and coercive control. This is our opportunity to help those women who have suffered this dreadful form of abuse and forced control at the hands of their perpetrator. At its heart, the Bill must be about providing services for people who have become the victims of abuse, and indeed torture, in their own home. The importance of the Bill and these measures has only grown during the coronavirus crisis as perpetrators have exploited lockdown to intensify their control and abuse. Calls to helplines and concerns have increased greatly across all the four nations of the United Kingdom.

My good friend Rachel Williams, who is from Newport, is a leading campaigner. She has set up her own charity, Stand up to Domestic Abuse. I am proud to wear the organisation’s badge through every day of these proceedings. Rachel’s abuse story is well chronicled and her support charity for survivors is simply outstanding. On the issue of non-fatal strangulation, Rachel has set up a petition to ask the Prime Minister to support its inclusion as a stand-alone offence. When I looked at it about an hour ago, the petition had secured 202,288 signatures. These are Rachel’s words:

“Strangulation is a very symbolic act of control which leaves its victim in no doubt that there is a real and visceral threat to their life. If you put your hands on someone’s throat and squeeze, the message and terror for the victim is clear. As a survivor of domestic violence, I know the impact it has.”


When Rachel knocked at my door at the civic centre asking for help and support for victims, I said that we would do our very best within the limited financial framework of a local authority in such austere times. But what I could never have foreseen a couple of years ago is that I would be in a position in your Lordships’ House where I have the privilege of speaking to improve and amend the laws of our lands so that survivors such as Rachel and support organisations will have the very best protection that can be afforded by the most appropriate legal framework.

We have such an opportunity before us today. Non-fatal strangulation or suffocation must finally become a stand-alone offence for the perpetrators of this most repugnant of crimes. I support the amendments.

[Baroness Meacher (CB) [V]]

My Lords, I give my strong support to Amendment 137 in the name of the noble Baroness, Lady Newlove, and I want to congratulate her on her comprehensive and extremely powerful presentation of the arguments in favour of these amendments. Of course, I wholeheartedly agree with every word that she spoke. I also want to thank our Ministers for their support for this amendment, and indeed thank the Home Secretary and Justice Secretary, both of whom, I understand, support the amendment. I thank too all those who have provided briefings for us, in particular Julia Drown, who has been absolute stalwart in support of our work on this issue.

I understand that the Government have accepted the principle of the amendment and agree that it should have general application rather than be limited to cases of domestic abuse; that is, between couples who are personally connected, albeit that the amendment should stand within the Domestic Abuse Bill. That is what I understand, and no doubt the Minister will update us on developments in the work of the Government’s lawyers, who I believe are drafting an amendment that would work in practice. It would be helpful if he could confirm that the Government support the broader amendment but also that it must be included in this Bill for the reasons already given. I do not want to repeat them.

In the circumstances, I want to keep my remarks extremely brief and will just spell out the key reasons why I feel so strongly that the amendment should be agreed. First, women who are victims of non-fatal strangulation are seven times more likely to be killed subsequently. If there is anything that we should do, surely it is to prevent murder.

Secondly, the fact is that these very serious crimes are not being dealt with effectively by our criminal justice system simply because of the peculiarity that there might not be much to observe in the way of immediate symptoms, while the medium or long-term consequences, both mental and physical, of this heinous and horrendous crime are extremely serious. Again, all that has been outlined by other speakers, so I will not repeat it.

I have a lot of sympathy for the police, who do not—of course, they cannot—handle this very well. There needs to be a very specific, stand-alone offence that they can grapple with and understand. The police are overloaded—they are very busy, as I know well from my work with the Police Complaints Authority some years ago—so all my sympathies go to them. For the police, as well as for the victims, we need to get this amendment on the statute book.

Thirdly, this is a particularly horrible way to be assaulted. The idea that it is not dealt with effectively and that people are not punished for doing it is completely unacceptable, so I say again that I very strongly support the noble Baroness, Lady Newlove, and her amendments.

[The Lord Bishop of London [V]]

My Lords, I thank noble Lords who have preceded me and those who will follow. I also thank the steady campaigners, researchers and wider members of civil society for their tenacity in bringing the issue of non-fatal strangulation to the forefront of the Bill. It is something so nuanced that, if addressed, it has the potential to change the trajectory of women’s lives post strangulation.

Researchers, lobbyists and specialist organisations alike have spent significant proportions of their lives trying to highlight the one thing that we all know to be true: that there is almost always more than meets the eye. That said, I am delighted to have heard that the Government are committed to addressing this issue, and it is good to have heard so many noble Lords speak in favour of the amendment at Second Reading and today.

We have heard powerful contributions from the noble Baronesses, Lady Newlove and Lady Wilcox, and many noble Lords will have received briefings and accounts of the impacts of this crime on victims. I add my voice in support of the amendment, which calls for non-fatal strangulation to be included in the Bill as a stand-alone offence.

International research by Glass showed that non-fatal strangulation by a woman’s partner was associated with a 700% increase in the likelihood that he would attempt to kill her and an 800% increase in the likelihood of him actually killing her. Data collected by organisations such as Stand up to Domestic Abuse suggests that non-fatal strangulation is not a single, spontaneous assault but a pattern used by some perpetrators.

I am sure that noble Lords have read the details of what it is like to face this type of assault. We have heard them today and previously in your Lordships’ House, so I will not repeat them. The reality is that the effect of putting this amendment in the Bill really will be a reduction in the number of cases whose details we might have to share on this matter in the future.

At present, the police too often deal with non-fatal strangulation as a tick-box exercise on a risk assessment form, rather than as a crime. Furthermore, the current law leads to perpetual undercharging or no charging at all. Work from organisations such as the Centre for Women’s Justice highlights how serial perpetrators of domestic abuse and coercive control should have an official history that reflects their potential risk to others.

19:15

The amendment that my co-sponsors and I are calling for will ensure that non-fatal strangulation can be charged as an indictable offence and not merely as a misdemeanour or summary offence. This will reflect the dangerousness of the perpetrator and the severe, traumatic injury non-fatal strangulation causes; it is something our peers across the world are already doing. Modernising our response to domestic violence is needed and one can imagine how much more it is needed in light of the stresses that the Covid-19 pandemic has induced. This is an opportunity to introduce an offence of non-fatal strangulation or suffocation in the UK so that others do not suffer unnecessarily. I am particularly pleased to hear the constructive comments from Ministers and note that the Government have a commitment to looking at this issue. I wholeheartedly support this amendment, which will confront this heinous crime.

[Baroness Bertin (Con)]

My Lords, I give my strong support to Amendment 137. I also thank the noble Baroness, Lady Newlove, for her determination and commitment on this issue and thank the Centre for Women’s Justice for all its work. I thank the Government for listening. It is right that non-fatal strangulation, for all the reasons that we have just heard, will be a new stand-alone offence. It is very encouraging that we are discussing this issue with a shared understanding. However, I hope the Government will listen again and agree that the Domestic Abuse Bill is the natural home for this amendment. The Bill has finally reached the stage where we can look forward to Royal Assent in the not too distant future. Let us take the opportunity and place this offence on the statute book now.

Having the offence in this Bill sends a powerful message that this kind of offending is concentrated in domestic abuse cases above all others. A rural police force in England selected 30 cases of strangulation at random from within its data. It found that all were cases of domestic abuse. That is not to say that there are not other situations where this form of violence is used—primarily against women and we do not forget them either—but the majority are domestic abuse cases, where strangulation is part of a wider campaign of terror and control that victims and survivors endure day after day.

It is important for our criminal justice agencies to understand this offence in its proper context as a well-established aspect of domestic abuse. This will help them recognise it and take a robust approach. It will aid increased training and better investigation techniques. We have heard that about 20,000 women suffer from this form of abuse. It is frightening, traumatic and deeply harmful. The noble Baroness, Lady Newlove, was right to set out exactly what it means. It was not easy to listen to but we need to understand it.

As a society, we have been blind to this crime for far too long. We are now finally shining a light on it and need to protect those women as soon as we can. I lost my own cousin to fatal strangulation and I know that a greater understanding of non-fatal strangulation will save lives. We must not delay this.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, I join everyone who has spoken in thanking the noble Baroness, Lady Newlove, for bringing forward this amendment, for the tireless way in which she has campaigned for it and for her powerful opening of this debate. I also want to record how grateful I and other noble Lords are for the careful and sympathetic way in which the noble Lord, Lord Wolfson, and the noble Baroness, Lady Williams, have listened to the arguments and responded to this amendment since Second Reading.

I believe there is a clear consensus that the absence of a distinct offence of non-fatal strangulation is a serious defect in our criminal law, which allows many cases of appalling attacks to be treated with far too little seriousness—undercharged and insufficiently punished. We have long had an offence outlawed by Section 21 of the Offences Against the Person Act 1861 of attempting to choke, suffocate or strangle in order to commit an indictable offence. However, not only is that Act now seriously in need of replacement, but that offence does not answer the need because it criminalises strangulation only with an intent to commit an indictable offence, so leaving untouched the violent strangulation with which this amendment is generally concerned. As I said at Second Reading, this horrible form of violence is appallingly common and devastating in its physical and psychological effects. Yet because the injuries are difficult to prove, prosecutions, where they happen, are often for common assault, or ABH at most, demonstrably understating the severity the violence involved. We have heard from the noble Baroness, Lady Newlove, and all other noble Lords who have contributed of the appalling statistics and the overwhelming evidence that demonstrate how serious this form of domestic abuse is, how often it stems from or leads on to further violence, and how a history of strangulation is a tragic, but regular, predictor of later homicide.

I shall say a little about the legal aspects of the amendment and its drafting. In particular, I shall address the points raised at Second Reading by the noble Lord, Lord Anderson of Ipswich, who unfortunately cannot speak today but invites me to mention his continued strong support for the amendment and his gratitude to the Government for their commitment to taking the best possible technical advice to ensure its effectiveness.

The first point raised by the noble Lord was whether we ought to have a specific offence of non-fatal strangulation at all or whether a generic offence not confined to strangulation or suffocation would do as well. For the reasons so ably set out so far in this debate, strangulation and suffocation raise a particular issue because the violence involved is extreme and the consequences in terms of abuse and terror for the victims so serious, yet often there are very limited physical injuries to support a prosecution as a result. The New Zealand Law Commission, in its 2016 report Strangulation: The Case for a New Offence, accepted the case for a specific offence and recommended this approach. I understand that the former criminal law commissioner at the Law Commission, Professor David Ormerod, who generally favours generic offences rather than specific ones and so recommended in his 2015 on the reform of the 1861 Act, nevertheless sees a strong case for a new specific offence of non-fatal strangulation. I agree. As to the actual acts constituting strangulation or suffocation, the amendment closely follows the New Zealand legislation, the Family Violence (Amendments) Act 2018, which implemented the Law Commission’s recommendation, and there are no reports of any significant difficulties with the definition of which acts are required.

I turn to whether a new offence should be limited to the context of domestic abuse. Indeed, as the noble Baroness, Lady Newlove, explained, we are considering two versions of this amendment, one limited to domestic abuse and one general. My firm view is that the new offence should be generally applicable, as in Amendment 137, even though the evidence outlined by the noble Baroness, Lady Newlove, establishes firmly that this is generally an offence involving domestic violence. However, I fully agree with the noble Baroness that the new offence of non-fatal strangulation should not be confined to the domestic context, particularly not as limited by the constraints of the definitions in the Bill, under which a similar intentional act which did not meet the definition of domestic abuse would be left to the inadequacies of the pre-existing law.

I turn next to the difficult question of intent. The amendment as drafted now provides that A commits the offence if he “intentionally strangles or suffocates” B. In my opinion, the use of the word “intentionally” is correct and appropriate. It makes it a requirement that the prosecution demonstrate that the act of strangulation or suffocation—that is, blocking the victim’s nose, mouth or both, or applying pressure to the victim’s throat, neck, chest or more than one of these—is intentional. It does not require that the offender be shown to have a further intent of causing any particular type of harm to the victim. The necessary intention is what lawyers call a “basic intent”, rather than a “specific intent”. In my view, that is right because it is difficult to see an offender doing any of these acts without either intending to cause injury or being completely reckless about whether such injury is caused. It should not be a necessary element of the offence that the exact state of mind should have to be proved, and this follows the New Zealand Law Commission’s report.

However, when the New Zealand Parliament implemented that recommendation in that report, the word “intentionally” was supplemented by the words “or recklessly”. In my view, the addition of possible recklessness to the basic intent adds nothing, because it is hard to see the acts involved in strangulation or suffocation being unintentional. I suggest sticking to the word “intentionally” as included in the amendment.

The question also arises whether consent should be a defence against the new offence. In my view, it should not, and the removal by Clause 65 of the defence of consent to the infliction of serious harm for the purpose of sexual gratification points the way. I can see no merit in permitting a defence of consent, which would doubtless lead to frequent court disputes when the defence case would involve an assertion that the victim consented to her own strangulation. I cannot believe that that would be right.

On the last question raised by the noble Lord, Lord Anderson, the sentences proposed lie somewhere in the middle of the range applicable to similar offences around the world. They seem to me to fit in with our general sentencing guidelines. Setting maximum sentences is always an art and not a science. The sentences proposed are, of course, maximum terms of imprisonment, and actual sentences in practice always vary with the facts. However, this amendment seems to me to have the tariff about right.

Finally, our Law Commission and Professor Ormerod, with his wide experience in the field, have both been consulted as to the formulation of a new offence, and will continue to be so. Professor Ormerod has expressed his willingness to assist the Government and the House with further consideration of the details of a new offence before Report stage. I express the hope that the Government and we will take advantage of that generous offer.

[Baroness Redfern (Con) [V]]

My Lords, I thank my noble friend Lady Newlove for her powerful introduction to this standalone offence. I am pleased to have the opportunity to take part in the debate and to give my support to the many victims who have endured violence—for them, it has been a long wait for justice.

I rise to speak to this amendment, which addresses the offence of non-fatal strangulation or suffocation whereby a person commits such an offence if they intentionally strangle or suffocate another person but it does not result in death. This must be recognised as a distinct offence in its own right and not just treated as common assault, as has happened in so many cases, particularly given that many victims display hardly any external signs of abuse even after serious assault. Crimes of strangulation and asphyxiation are the second most common method, after stabbing, of killing in female homicides. The amendment would also help the police identify the harm which has occurred, thereby enabling them to respond appropriately to this method of domestic abuse. This offence should be embedded in the Domestic Abuse Bill and should carry a maximum term of imprisonment of seven years.

Non-fatal strangulation is used as a weapon to exert power and control and to instil fear in an abusive relationship. Most victims experience a real fear that they will die, and many go on to suffer long-term mental health issues.

Given the aims of the Bill, this amendment provides us with a real opportunity to save lives. We must not miss this opportunity to introduce the offence of non-fatal strangulation or suffocation in the UK. We must do all we can to protect victims and help them to recover and rebuild a life free from abuse.

19:30

[Baroness Crawley (Lab) [V]]

My Lords, it is a pleasure to follow the noble Baroness, Lady Redfern. I support the important Amendments 137 and 138, particularly Amendment 137, in the names of the noble Baronesses, Lady Newlove and Lady Meacher, my noble friend Lady Wilcox and the right reverend Prelate the Bishop of London. I am pleased to be in the company of so much wisdom and experience.

The noble Baroness, Lady Newlove, as we know, is the distinguished former Victims’ Commissioner, and I understand that Dame Vera Baird, the present commissioner, and Nicole Jacobs, the domestic abuse commissioner designate, are also committed to these amendments. The noble Baroness has said today that the Police Superintendents’ Association—comprising all chief superintendents, who are in charge of public protection units across the country, which will include domestic abuse specialist officers—also support the amendment. It sees the benefits of a stand-alone offence of non-fatal strangulation or suffocation to charging regimes, to more serious custodial sentences and to better police training and information.

It is very good news that the Government are now openly in favour of filling this gap in the law in future legislation, but our argument today is that we have a completely appropriate Bill in front of us now that could incorporate these amendments and could get this offence on the statute book this year, with all that that could imply for victims and survivors. The highly respected charity SafeLives estimates that 37% of high-risk abuse victims experience non-fatal strangulation. Research in America, where 37 states have introduced a specific offence, estimates that victims of non-fatal strangulation are seven times more likely than non-victims to be killed in domestic abuse incidents, as the noble Baroness, Lady Meacher, has said. New Zealand and Australia have also been proactive in this area of law. The Centre for Women’s Justice has argued that this is a gender-specific crime that should be recognised in the Bill.

Dame Vera Baird and Nicole Jacobs, in a joint statement, have called attention to the fact that this terrifying experience of non-fatal strangulation or suffocation can cause significant long-term mental and physical trauma, as the noble Baroness, Lady Newlove, has so powerfully described, and that at present the law is not fit for purpose. Non-fatal strangulation is a common feature of domestic abuse and a well-known risk indicator, yet, given the inadequate tools available to them at the moment, the police are often only able to deal with it on a risk assessment form rather than as a crime. When a charge is brought it is often common assault, which does not reflect the severity or hidden scale of the offence, as the noble Baroness, Lady Redfern, has said.

Ultimately, non-fatal strangulation is a highly effective tool of power and control, used to engender fear and terror in families, and is no doubt being used today with enthusiasm by perpetrators behind the closed doors of another Covid lockdown. There is really no time to delay in coming to the aid of such vulnerable victims and survivors. We need to see these amendments incorporated into this Bill, rather than waiting for future Bills, especially in these very uncertain times.

I am sure that the Minister, who appears to be a good listener, recognises the urgent need to resolve this matter and to fill this gap in the law. I look forward to his response.

[Baroness Finn (Con) [V]]

My Lords, I speak in support of Amendments 137 and 138 and pay tribute to my noble friend Lady Newlove and many others for their tireless work and campaigning. I, too, thank Julia Drown for her help and support, and I very much welcome the Government’s acknowledgement of this issue and thank Ministers for their support.

I stress that this is the right Bill for this offence: non-fatal strangulation is about fear, control and a toxic mix of physical and psychological abuse, and it is often done with the express intent and insidious subtlety of evading detection. As such, it can be protracted and cause lasting and even permanent harm. Crucially, the current law is letting victims down; this Bill is our chance to put that right and protect them.

Many other noble Lords have already spoken about the horrific nature of non-fatal strangulation, but the current problem of undercharging highlights that the true nature and intent of the crime is not fully understood. As always, context matters: the current narrow approach not only limits the sentencing options but has other serious consequences, as it impacts on future risk assessments and public protection decisions. These include future bail applications, sentencing decisions—including dangerousness determinations—and Parole Board decisions.

As the seriousness of the crime is not currently understood, neither, unfortunately, is the management of its consequences. This is particularly the case when it comes to contact arrangements for children. To protect the welfare of children, these arrangements should reflect the seriousness of the crime; unfortunately, they do not.

I am conscious that, to tackle non-fatal strangulation as effectively as possible, we need all relevant agencies to work together. Early intervention is needed to mitigate damage and even save lives. Unfortunately, current understanding of symptoms and consequences will likely lead to cases being missed and narrow or absent diagnoses offered. If those in the health service seeing patients with the relevant physical and psychological conditions are conscious of the links to non-fatal strangulation, the problem can be picked up earlier and the victims supported.

This would not only save the victims from further and more serious harm; it would also be better for society, as the earlier intervention would be easier and more cost-effective, compared with dealing with the horrific further abuse and deaths of victims. In many of these cases, this will be about protecting children as well as the victims themselves.

It is shocking that, in this country, thousands of victims experience the trauma of non-fatal strangulation every year. Given that the current criminal justice system is clearly not able to protect these victims, we cannot afford to let this Bill pass without addressing this issue. We all know how commitments to introduce something in a future Bill can get derailed through no fault of those making those commitments. There is a suggestion that this new offence could go in the police, crime, sentencing and courts Bill, but that is not the Bill before us now; it has not even started its journey in the other place, and it may well be delayed for months into the future.

We need to get this right, and there is no reason why this offence cannot be included in this Bill to get the victims the protection they need now. If we miss this opportunity to introduce this offence, many women will die, others will suffer unnecessarily and we will be behind most of the English-speaking world on domestic abuse protection.

The UK has been rightly proud of its leading role on the world stage on gender-based violence over many years; this amendment is needed to ensure that we stay ahead and do all we can to protect victims. Rather than have the uncertainties of a future Bill, we can address this issue now in a Bill that will come into law very soon. I urge the Government and Ministers to work with my noble friend Lady Newlove and to include this new offence in this Bill.

[Baroness Bennett of Manor Castle (GP) [V]]

I join every speaker in this rather large group of speakers in offering my support for Amendments 137 and 138, with a preference for 137. I join all of the others in paying tribute to the noble Baroness, Lady Newlove, for her very hard work on this issue. However, when the idea of a new offence was first put to me, I started from a position of scepticism. We all know that there are far too many cases in history where Governments who are wanting to be seen to be doing something say “Oh, we will have a new law and create a new offence”.

However, when I looked at the evidence and saw the extensive briefings and data assembled by campaigning groups and NGOs, I found that there is clearly a case. There is a specific set of behaviours that constitutes an offence. The case is made very clearly that non-fatal strangulation and suffocation is not generally a failed attempt to kill, but rather a deliberate attempt to control and exert power. The law currently has no real proper way of dealing with that. The fact that there is little visible injury in many cases means that at best it may appear as a charge of common assault, and many others have pointed out how inadequate that is. It is also worth pointing out that it means there is a six-month limit for charges being brought. We know that domestic abuse is very often disclosed only after a large number of incidents have occurred. It also means that, as a summary offence in a magistrates’ court, it does not get the level of attention and resources that this proposed new offence would attract with the charges.

The other point which has not been made but should be, is that I very much do not believe in reinventing the wheel in terms of law and government policy. We can look around the world to see other places that have been leading on this. Reference has been made by the noble Baroness, Lady Crawley, to the 37 states in the US which already have comparable laws, and most Australian states do.

The real leader in this has been New Zealand. I note that this started with the Aotearoa—New Zealand—Law Commission 2016 report, which in December 2018 led to its introduction of a new law. I would imagine that the Minister is well aware of the recent report from the Chief Victims Advisor to the New Zealand Government to the Centre for Women’s Justice, which notes that in the first year after the offence was brought in, there were 2,000 charges—most occurring in a domestic violence context. A calculation has been made that, comparing our populations, that means in the first year we could see 26,400 charges in the UK. Of course, no two countries are exactly comparable, but I think that rough comparison tells you that if we delay introducing this charge, there will be thousands and thousands of women who will not have the protection of the law who should and could have the protection of the law if it is included in this Bill. It is very good to hear that the Government are listening on this issue, but the case for action now is overwhelming. I commend Amendment 137, in particular, to your Lordships’ House.

[Baroness Featherstone (LD) [V]]

My Lords, I greatly support Amendment 137 and thank the noble Baroness, Lady Newlove, for such a powerful and comprehensive introduction, thus making it necessary for me to make only a few brief remarks. During my time at the Home Office, I remember a particular incident that demonstrates the attitudes at play in the issues before us.

In 2014 a so-called pick-up artist, Julien Blanc, was due to visit the United Kingdom giving lectures to men on how to successfully pick up women and get them into bed. On Twitter, the photo he used to advertise his tour showed Blanc with his hand around the throats of women. He then tweeted the photo with the hashtag #ChokingGirlsAroundTheWorld.

I spoke out, as my responsibility was for tackling violence against women and girls, to say how concerned I was by the sexist and abhorrent statements Julien Blanc had made about women and that if he was allowed to perform in the United Kingdom, I had no doubt cases of violence and intimidation of women would follow, because his thesis was that physical aggression made you more attractive as a man and would give you more success and more sex. Someone who, in my view, wishes to incite sexual assault should not be granted a visa.

I simply use this as an example of the mindset that is out there that illustrates how women are in jeopardy. In days gone by, that mindset echoed down the corridors of our judicial system; to an extent, it still does so, because we are debating it today. It is part of the history of women being blamed for their own rape. Not that long ago, a woman’s previous sexual history was used to exonerate a male rapist. There is a long tradition in matters sexual to blame the woman for her own downfall: she wore a short skirt or a low top; she was asking for it, and so on. It put the onus for male behaviour on to the woman.

19:45

Men often use non-fatal strangulation as a control mechanism or say that their partner consented to it or wanted it. Non-fatal strangulation is a crime in its own right, so it should have an amendment in its own right. It is great that the Government clearly acknowledge the need for this to become law. They tell us they will bring it forward in another Bill, but the Domestic Abuse Bill is exactly the right place for it because of that very close connection between strangulation and domestic abuse. As has been said, non-fatal strangulation often ends in fatal strangulation. We know that, where there is domestic abuse, any strangulation increases the odds of murder sevenfold. There is a clear path from escalating violence to homicide, with non-fatal strangulation as the final step before murder.

The chief executive of the Training Institute on Strangulation Prevention in the USA said,

“Statistically, we know that once the hands are on the neck, the very next step is homicide ... They don’t go backwards.”

We cannot consent to this.

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, like other noble Lords I pay warm tribute to the noble Baronesses, Lady Newlove, Lady Wilcox, Lady Meacher, and the right reverend Prelate the Bishop of London for their tremendous campaign to deal with this abhorrent crime. It is so pleasing to know that the Government have agreed to put this offence on to the statute book.

I cannot really add to the extraordinary speeches we have heard tonight but I give my support to the noble Baroness, Lady Newlove, in proposing why this Bill—as opposed to the police and sentencing Bill—is the right vehicle for this offence. We have heard in this debate and at Second Reading about the issues facing the police; the problems they have experienced in giving the right attention to non-fatal strangulation and, subsequently, the undercharging of the offence. Surely then, if we want to change this around, it is better for this new offence to be part of a cohesive package of measures in the Domestic Abuse Bill. When the Bill is enacted—as it will be in a few weeks’ time—accompanying the rollout of the new legislation will be a package of training and support measures, so that people in the field are prepared for it. It also makes sense for the police that it is dealt with as a cohesive package of measures.

The third reason why it should be in this Bill is the one spelled out by my noble friend Lady Crawley: we are dealing with an abhorrent crime. This Bill, with its huge support around this House and in the other place, will be law in a matter of weeks. Why wait for a new Bill, which would take months to come through and be enacted? Ministers have shown that they are listening. It is much appreciated. I hope they will listen to our arguments that this Bill is the right vehicle.

[Lord Lucas (Con) [V]]

My Lords, I too welcome these amendments. However, if this law is going to be passed it should be accompanied by clear advice for the young. Having been guided around TikTok by a young, adult female, there seems to be something of a fashion for strangulation among young women. They say, “I like this”; they say that a boy who will not do it is a pussy, not sexy enough, not interesting enough and not man enough to do what the girl wants. Under those conditions, it is really important that the Government issue clear, unambiguous and easily found advice on the consequences that the introduction of this amendment would have for that sort of activity. I would be grateful if my noble friend would let me know what the Government’s intentions are in this regard, in writing if not this evening.

[Lord Blunkett (Lab)]

My Lords, the Committee has heard some extremely powerful and focused speeches this evening. I add my voice to those commending the noble Baroness, Lady Newlove, and the signatories of these amendments, and give my support to Amendment 137. Given what the noble Lord, Lord Lucas, has just said, I hope that the online harms Bill will deal with social media outlets that perpetrate the kind of messages that he enunciated.

The noble Baroness, Lady Newlove, and all those who have spoken, have done so with clarity and unusual brevity for the hybrid House; I will try to emulate that. I have two things to say. First, women police officers who have spoken to me are crying out for this focused and clear piece of legislation, as enunciated in Amendment 137. As the right reverend Prelate the Bishop of London said, they do not want a tick-box approach. They want to change the relevant form—124D—to be able to obtain the Crown Prosecution Service’s direction to take those who are perpetrating this crime through to a successful criminal prosecution. As has been said so often this evening, this is clearly about domestic abuse.

Secondly, why should this Bill be the vehicle to take this forward? There are two reasons. One is that it is self-evident from everything that has been said, the briefings that have been received and offline discussions, that everyone accepts that this legislation is needed and is needed now. There is no reason whatever to delay until another criminal justice or sentencing Bill which may take its turn after a forthcoming Queen’s Speech, somewhere down the line, where this amendment would have to be moved all over again. We would have to go through all the same campaigning, representations and speeches to gain something that the Government themselves have thankfully conceded is a necessary improvement to the law.

I have one plea for the Minister. He has taken to this House like a duck to water, but there is one lesson that those of us who have been around in politics know all too well: you do not ask your own colleagues in another House to vote down something that they know is eminently sensible and required, in some vain hope that they will forgive you for not having done it as quickly and effectively as possible because someone in the legislative committee of government—it changes its name from time to time—has decided that they do not want to have any further substantive amendments to the Bill. We all know that this would be arrant nonsense: the Minister knows it, and the noble Baroness, Lady Williams, who has been extremely helpful on this, knows it. I think that the noble Lord, Lord Marks, in his erudite speech, indicated that even the noble Lord, Lord Anderson, has changed his mind since Second Reading. I am glad if he has, because I was going to refer him to the excellent Second Reading speech by the noble Lord, Lord Young of Cookham, about his experiences in 1975.

All of us can coalesce and praise the Government and applaud the campaigners, particularly the noble Baroness, Lady Newlove, for what is tonight a unified approach to dealing with a horrendous crime, which has led to so many deaths and can be stopped from doing so in the future by a single agreement by government Ministers.

[Lord Harries of Pentregarth (CB) [V]]

My Lords, I speak briefly in support of Amendments 137 and 138, especially Amendment 137. It has been introduced extremely powerfully by the noble Baroness, Lady Newlove. I do not think that any of us would be here at this stage of the evening, late in the Bill, if we were not absolutely convinced of the importance of a stand-alone offence of non-fatal strangulation, and of course the Government also recognise this.

Perhaps we could pause briefly to pay tribute to, first, those victims of domestic violence—particularly those affected by non-fatal strangulation—and their bravery in coming forward, to the campaigning groups that have been willing to take up the issue on their behalf, and to the parliamentarians, both in the other House and in this place, who have been willing to respond to it. In a dark time, it is good to celebrate the fact that something is working in our democracy in this kind of way.

The key issue this evening for the Government to face is not whether there should be such a stand-alone offence—I think everyone is convinced of that now—but whether or not it should be in this Bill. It seems to me that the Minister has to face two real questions put forward by the noble Baroness, Lady Newlove, and also very powerfully by the noble Baroness, Lady Wilcox of Newport, the noble Lord, Lord Hunt of Kings Heath, and others. First, if 80% of non-fatal strangulations take place in the context of domestic violence, is there any reason at all why it should not be in this Bill? That is where it belongs. Secondly, as was said by the noble Lord, Lord Blunkett, and many others as well, the police are crying out for something clear and associated with this Bill, because it will both raise awareness of this terrible form of cruelty and ensure that there is appropriate training in order to help the police to recognise it.

I very much hope that, when the Minister comes to respond, he will be able to look at these two issues in particular and agree that there is a proper place for this in the Bill.

[Baroness Burt of Solihull (LD)]

My Lords, I commend the noble Baroness, Lady Newlove—and other noble Lords, but particularly she—on her determination and her excellent speech in explaining the horrific nature of this crime and its repercussions. Like many noble Lords, I was delighted to receive a letter from the Minister, the noble Baroness, Lady Williams, regarding the Government’s willingness to introduce a new offence of non-fatal strangulation on to the statute book as soon as possible, albeit not within this Bill.

I had thought that the Minister would be at the Dispatch Box this evening, so I am going to put a number of questions to the noble Lord, which I hope he will do his best to answer, although of course he cannot stand in the Minister’s shoes. Can he tell us what the Minister meant by

“a commitment to consider a new offence of non-fatal strangulation”?

Are the Government going to introduce one or are they not? Something a little bit definite would be very much appreciated. Could the noble Lord elaborate on what she meant by making the offence “proportionate”? She spoke of ensuring that more convictions can be achieved, but can he please give any indication of what this might look like?

20:00

Of the two amendments tabled by the noble Baroness, Lady Newlove, and others, it was good to be able to understand why she tabled a general offence and an offence where the victim and perpetrator were personally connected as defined in the Bill. One can see the difference between the two immediately.

In Amendment 137, which seems to have attracted the most favour from supporters of these amendments, one would construe that this offence could be used in a way to prosecute individuals who had threatened with a view to a specific outcome—for example, to silence a witness or achieve compliance in a criminal act, as well as the intimidation of women and the “rough sex” defence so convincingly squashed in the Bill. In Amendment 138, where the victim and perpetrator are personally connected, it is a much more sinister, calculated and long-term offence. Both are important. Can the Minister tell the House whether both offences will be introduced, whether they will be treated differently in law and whether the personally connected offence will attract a potentially higher tariff? I apologise for bombarding him with questions, but can he give the House an idea? If this offence is not to come in this Bill, what legislation do the Government have in mind to introduce it, and, realistically, how soon can this come about?

If the introduction of this new offence is anywhere as effective as in New Zealand, as has already been described by the noble Baroness, Lady Bennett of Manor Castle, it will be transformational in terms of reporting and police response. At present in the UK, this cruel and controlling practice is usually prosecuted—when it is prosecuted at all—under the heading of “common assault”, which does not even start to get near the severity of the offence. As one noble Lord recently said of the arresting policeman for this new offence, “It’ll give him something to hang his hat on”.

Very soon the game of so many abusers will be up, and it cannot come soon enough. I join all the other speakers to ask why this offence cannot be put in this Bill. How many women does the Minister think will die if the Government wait for another Bill to come along?

[Lord Wolfson of Tredegar (Con)]

My Lords, first and foremost, I offer my sincere thanks to my noble friend Lady Newlove, the noble Baronesses, Lady Meacher and Lady Wilcox, and the right reverend Prelate the Bishop of London for the clear case they have submitted today before the Committee on why the offence of non-fatal strangulation is necessary. All the matters that we have discussed today are important, but this may well be the most important. In that context, I hope noble Lords will forgive me if I do not acknowledge each of the contributions individually, both because of time and because, if I may say, many of the contributions were to the same effect. I will seek to respond to the substantive points made without always a personal reference; I hope I will be forgiven for that.

I must, however, make a personal reference to my noble friend Lady Newlove. I join with others in paying sincere tribute to her for the way in which she has promoted this issue. She explained how non-fatal strangulation can be terrifying and the effects long lasting. As the noble Baroness, Lady Crawley, said, it is often used as a method of control and, to adopt the phraseology of the noble Baroness, Lady Wilcox of Newport, there is a real and visceral effect. I also mention in particular the personal and very moving speech by my noble friend Lady Bertin, with her mention of some circumstances very close to her.

As noble Lords will have noted, there are two amendments on non-fatal strangulation before the Committee. Amendment 137 would have general application: it would apply to all cases where non-fatal strangulation or suffocation has occurred, including cases where non-fatal strangulation or suffocation featured as a factor during a domestic abuse incident. By contrast, Amendment 138 creates the same offence, but the application is limited to cases of non-fatal strangulation or suffocation where this occurs in a domestic abuse context. The maximum penalty for the new offence in each proposed clause is the same—that is, on conviction or indictment, seven years’ imprisonment or a fine, or both.

I am aware that the proposal to create a stand-alone non-fatal strangulation offence stems from campaigns conducted last year by the Centre for Women’s Justice and We Can’t Consent to This. Specific clauses to create a new offence were tabled in another place, although they were different to those before us today. Those proposed clauses were, however, withdrawn on Report in the other place and were not put to a vote.

Before setting out the Government’s position on this matter, let me start by saying that we entirely sympathise with and fully understand the strength of feeling. We unequivocally support the intention behind these amendments and have given a firm commitment to legislate for a new offence of non-fatal strangulation. I hope that, as the right reverend Prelate the Bishop of London explained, this will indeed lead to a reduction in the appalling details that we may have to hear in the future. In answer to my noble friend Lady Redfern, that would be a stand-alone offence.

Several contributors have mentioned the position in other jurisdictions. It is right to say that Australia, Canada, New Zealand and several states in the USA have created a non-fatal strangulation offence. Those offences have been cited by the two groups that I mentioned as offering a basis on which any new offence in England and Wales could be modelled. Those stand-alone offences, however, differ across those jurisdictions. Some apply widely but are dependent on certain factors being met, such as the victim not giving consent, or the act causing them to lose consciousness. Other variations of the offences are narrower in scope, in that they are restricted to instances of strangulation that occur in a domestic abuse context. Those offences are not without criticism. Some people claim that they are too broad and can capture behaviour that is not intended to harm and should not be criminalised.

It is also worth pointing out that the offences in those jurisdictions have not been placed on the statute book without significant prior review to assess their impacts on other areas of law. In addition, most of those legislative measures tend to be accompanied by a package of non-legislative measures—for example, programmes for seeking to change perpetrator behaviour, toolkits for the police to assist in identifying non-fatal strangulation cases and guidance for agencies to support victims of non-fatal strangulation.

I also draw the attention of the Committee to the current law and how non-fatal strangulation is currently captured. Such behaviour can be captured, depending on the seriousness of the crime, under offences ranging from common assault and battery to attempted murder. However, in addition to those offences, there are others that can cover non-fatal strangulation and suffocation. For example, it can be part of a pattern of behaviour amounting to an offence of controlling or coercive behaviour under Section 76 of the Serious Crime Act 2015. Additionally, a specific offence under Section 21 of the Offences Against the Person Act 1861 makes it an offence to attempt to choke, suffocate or strangle any person, or to choke, suffocate or strangle a person in an attempt to render that person insensible, unconscious or incapable of resistance. That offence also requires there to be an intention by the perpetrator to commit another indictable offence.

It is that range of offences that initially led the Government to believe that the law was sufficient in covering the diverse circumstances and levels of seriousness that may be involved in non-fatal strangulation cases. As the noble Baroness, Lady Bennett of Manor Castle, set out, one would not want to create a stand-alone offence if it were not necessary to do so. However, we have now been persuaded that this may not be the case.

We are also aware of claims of evidential difficulties in prosecuting any allegation of strangulation, particularly if there is no—or insufficient—evidence of injury, not even reddening or minor bruising to the skin. Further, as the noble Lord, Lord Marks, pointed out in relation to the Section 21 offence, there is the additional requirement for evidence that another indictable offence had been intended, and that may create difficulties.

Our concern had been that the same difficulties would apply to any new offence, as there would still be a requirement for proof beyond reasonable doubt that a serious offence was intended. We have also been concerned about the risks associated with creating a new offence and that it could limit the circumstances covered and create additional evidential burdens when compared with existing offences.

More importantly, as was pointed out by a number of contributors, non-fatal strangulation is relevant to and found in, but plainly not limited to, domestic abuse circumstances. Although I understand and accept that it is more likely to occur in a domestic abuse setting, it is nevertheless the Government’s position to ensure that if we create a new criminal offence, it applies equally to all parts of society, does not create any loopholes, or conflict or impact on other parts of the legal framework.

I turn now to the detail of the amendments: as drafted, both are deficient and could not be accepted by the Government. Importantly, both amendments seek to create a new offence to criminalise conduct that is already unlawful. In addition, the proposed maximum penalty of seven years’ imprisonment for conviction or indictment is problematic—the level of the penalty needs careful consideration. Our main concern here is that seven years exceeds the maximum penalty for serious offences such as GBH, when the injury caused by non-fatal strangulation may be significantly less than the injuries that amount to GBH.

There are other significant problems. The amendments do not deal with the element of consent, do not consider any exemptions and do not provide explanation of how they would work with, and alongside, the current legal framework. The amendments are also limited to a person’s breathing, or blood circulation, or both, being impeded manually—by hand or through the use of an aid. We are, however, aware of offences of this nature where a person’s breath or blood circulation has been impeded in other ways, such as the use of other body parts—a knee placed hard upon a neck, for example—or, simply, using bodyweight.

As noble Lords will have seen in the media over the weekend of 9-10 January, the Government have now committed to creating a new offence of non-fatal strangulation, for which the noble Baroness, Lady Meacher, characteristically generously, was thanking Ministers. It will be important, however, to ensure that any new offence is proportionate—I hear the question from the noble Baroness, Lady Burt, and I will come back to it—allows for more prosecutions to be brought and for convictions to be secured. There is a number of legal and technical issues to be addressed for this to be achieved that are not addressed by the amendments as currently tabled.

The noble Lord, Lord Anderson of Ipswich, as has been said, rightly pointed to some of these issues on Second Reading, and we should not underestimate the challenges of getting this right. I am grateful to the noble Lord, Lord Marks, for passing on the later comments from the noble Lord, Lord Anderson. I can say, particularly given his reference to Professor David Ormerod, that officials have already taken up the offer of meeting the learned professor. They have had initial discussions with him and will continue to have such discussions, which I am sure will be extremely useful.

As I am sure noble Lords will agree, it is important for any new offence to work in practice and not pose difficulties for other parts of the law. In creating any new offence of non-fatal strangulation, the Government will have to consider several factors. Let me set out just four. First, the Government will have to consider whether the behaviour should be captured through a single offence or through two offences to capture lower-level and more serious cases of non-fatal strangulation. Secondly, we have to define the term “strangulation and suffocation,” and consider whether any terminology about serious harm requires definition. Thirdly, although I heard what the noble Lord, Lord Marks, said, we have to consider the issue of consent—when consent becomes invalid is a notoriously thorny legal issue. Fourthly, we have to consider the application of public policy exemptions, such as for some sports or medical treatments.

20:15

The Government are therefore looking at these issues, which may take some time to resolve, but we intend to introduce a new offence at the earliest opportunity. I have been pressed on timing by Members of the Committee—I will not list them all, for which I apologise. The fact that I am a good listener—I hope—does not mean that I do not remain a careful lawyer. The noble Lord, Lord Blunkett, was kind enough to say that I had taken to this House like a duck to water. I still feel that I am dipping my toe very gingerly into water which is sometimes freezing. However, I heard his point about the political realities most clearly. He can be assured that I have that firmly in my mind.

We will do our very best to achieve this outcome in the Bill but, until we have made further progress with the drafting, I cannot give an absolute commitment to bringing forward a government amendment at the next stage. However, I give a firm commitment that we will do our very best. In response to the points that were put to me and summarised on behalf of many noble Lords by the noble and right reverend Lord, Lord Harries of Pentregarth—why not this Bill, if the majority of cases are of domestic abuse?—as I said, we will do our best to bring this amendment forward at the earliest opportunity. As he said, in so far as the police are crying out for something clear, again we do not have to be convinced of the importance of the point.

Turning to the questions put to me by the noble Baroness, Lady Burt, I understand it to be an infallible rule of this House that all questions are asked of the Minister by the last speaker. She is quite right that I do not stand in the shoes of the noble Baroness, Lady Williams—no one can stand in her shoes—but allow me to try answering the four questions. First, I hope I have already made absolutely clear what we mean by “commitment to consider”. Secondly, on what we mean by “proportionate”, I refer the noble Baroness, Lady Burt, back to my comment on thinking about the appropriate penalty for the offence when read against penalties for other offences. Thirdly, I hope I have dealt already with whether it would be limited to cases of domestic abuse, and, fourthly, on what other legislation could be used, there are several putative legislative vehicles, but I have already said that we will do our very best to introduce a new offence at the earliest opportunity.

Finally, in response to the point put to me by my noble friend Lord Lucas on guidance, I say that there is always police guidance when a new offence is introduced. So far as public guidance is concerned, he raises an interesting point. We will consider how best to address that. If he can leave that with me, we will give it further thought.

I am conscious that I have not been able to go quite as far as my noble friend Lady Newlove and other Members of the Committee would like this evening. I hope that she will bear with me and with the Government. I will keep her informed and updated on progress. In light of what I have said this evening in the clearest terms that I can at this stage from the Dispatch Box, I hope that she is content to withdraw her amendment.

[Baroness Newlove (Con) [V]]

My Lords, I thank everyone who has spoken in support of these amendments. It has been quite emotional listening, and I am very grateful for the praise, but it goes to the great team behind me. I also pay tribute to my noble friend Lady Bertin for her contribution, which was quite personal. As someone who has gone through the criminal justice system and who knows what it feels like to speak from the heart, I thank her.

I was very grateful to the Minister for his winding-up speech and his answers to questions. I agree with the noble Lord, Lord Blunkett, that he seems to be a very good listener, and I am very grateful for that, but when one listens to judgments, which I have done in the appeal court, one always needs to pay attention to the last few paragraphs. I am a little disappointed because I heard words that seem to go far away from what the amendment seeks to do in this important Domestic Abuse Bill. The Minister suggested that he had concerns that seven years’ imprisonment exceeded the maximum penalty for GBH. The amendment suggests seven years as a maximum as that is what the Secretary of State for Justice said would be appropriate. It is the maximum for the offence, given its coercion and control elements, and it may well be appropriate to have a higher maximum penalty than for grievous bodily harm.

The amendment covers instances of putting a knee on a person’s throat, as it covers applying pressure to a person’s throat. These examples demonstrate that we have thought very carefully about these amendments. I agree that we can work together and look at the right amendments, but I feel that we are now looking at non-fatal strangulation being placed further down the legislation programme in a police and sentencing Bill. The commitment is a very grey area because it can go on for as long as a piece of string. I ask noble Lords to bear with me as I am not a lawyer, so I do not speak in that terminology. I come from passion and from going through the system and listening to victims and survivors of this horrendous crime.

I have listened to the Minister. He is a good listener and a careful lawyer; that is what the survivors of this horrendous, repugnant offence want him to be. I ask the Government to place non-fatal strangulation in the correct Bill—and the correct Bill is the Domestic Abuse Bill. I do not want any more blood on my hands knowing that non-fatal strangulation is going to have to wait to go into another Bill. How will the Government face families who have lost a loved one when strangulation has been a pattern in a relationship? At this stage I will withdraw the amendment but, if we can make more progress before the next stage, it would be welcome. I draw attention to the fact that I may test the opinion of House on Report, because this matter has to sit in the Domestic Abuse Bill, for all the survivors listening to this debate. I beg leave to withdraw the amendment.

Amendment 137 withdrawn.

Amendment 138 not moved.

Clauses 66 to 68 agreed.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, it has been agreed that a short break of 15 minutes would be welcome.

20:23

Sitting suspended.

20:38

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

My Lords, we now come to the group beginning with Amendment 139. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate, and anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Amendment 139

Moved by

[Baroness Kennedy of The Shaws]

139: After Clause 68, insert the following new Clause—
“Reasonable force in domestic abuse cases
(1) Section 76 of the Criminal Justice and Immigration Act 2008 (reasonable force for purposes of self-defence etc.) is amended as follows.(2) In subsection (5A) after “In a householder case” insert “or a domestic abuse case”.(3) In subsection (6) after “In a case other than a householder case” insert “or a domestic abuse case”.(4) After subsection (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, and(c) the force concerned is force used by D against the person who has perpetrated the abusive behaviour referred to in paragraph (b).(8H) 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 2021, 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 (controlling or coercive behaviour in an intimate or family relationship).”(5) In subsection (9) after “householder cases” insert “and domestic abuse cases”.”Member’s explanatory statement
This 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 alleged to have used force against their abuser.

[Baroness Kennedy of The Shaws (Lab) [V]]

My Lords, like others, I want to express my gratitude to my friend, the noble Lord, Lord Wolfson, for his generosity in giving time to discuss my amendments with me and those supporting me in seeking reform in a place where it is needed. I am grateful that he heard me and listened. I do not know what the response will be, but I ask him to listen again very carefully, because this is a matter where justice really should say that there must be some sort of conformity in law available in what I would say are very comparable circumstances.

It is important to remember that domestic abuse can lead to death. We have just heard a very powerful debate about strangulation, which really emphasised the ways in which those who have experienced non-fatal strangulation described how they felt they were going to die—that they could not breathe and somehow were losing consciousness. Of course, that is what happens if the pressure is continued. We also heard the statistic that one in seven of the women killed after a history of abuse have experienced strangulation. Let me tell you that this one in seven statistic is based on the circumstances where women have already given accounts to others—to their doctors, family members and lawyers—about experiences of strangulation. There are many women who have not given those accounts because of the shame still associated with domestic violence. Some of us have acted in cases involving fatality; one can rely only on the fact that strangulation is a very common feature in the patterns of domestic violence that lead to death.

Today, I will speak about a different set of circumstances from those that have engaged the House up until now. One of the tragic outcomes of domestic violence and abuse can be that the person at the receiving end of it ends up being the person in the dock, having taken the life of their abuser in the end. This happens rarely, unlike the other way around, where two women a week are murdered in this country by a spouse or partner. The statistics show that the number of women killing abusers is very small.

I can draw from my experience—it may be that my noble friend Lady Mallalieu has the same experience—as a criminal lawyer and a Queen’s Counsel for 30 years this year: the women I represented in homicide cases have invariably had a background of abuse, and one of the patterns or things that they describe in the histories that they give is fearing for their life on occasions. The women who end up killing a partner who has abused them have almost invariably felt that they were going to die on many of the occasions when they were assaulted previously.

It is important to remember that, when an accused person ends up in the dock, they can be wrongly convicted because of the law’s inadequacy—remember Sally Challen, a case that we have spoken about before in this House. This was a case in point where gaps in the law had failed a woman because she was convicted initially of murdering her husband before coercive control, which she had suffered for years, was understood properly by the courts.

In a high percentage of the cases that I have dealt with where women have killed a partner, pleading self-defence should have been available to the accused—the woman—but she has ended up seeking recourse in the fact that, very often, because of long-term abuse, women end up suffering from post-traumatic stress disorder of some kind or another, or depressive illness. Those are the tolls that domestic abuse takes on victims. It is one of the great scandals of our system that we do not often think about the impact of things relating to women and domestic abuse until pretty late in the day.

A great deal of thought has gone into the amendment that I am presenting to the Committee today. It looks at self-defence and the objective test of reasonableness that is applied in self-defence, and I shall explain in a minute what that means.

20:45

Some noble Lords will remember that a number of years ago there were debates in this House about the case of a man called Tony Martin, who was convicted of murder. He had shot an intruder at his smallholding. Some young men used to get over the wall and pinch things from his yard. I have no doubt that it drove him to his wits’ end, and eventually, on one occasion, he took out his shotgun and shouted at them. As they scrambled back over the wall with their backs to him, he shot one of them in the back and the young man died.

He was convicted of murder because the test for self-defence is that the response to a threat has to be proportionate. It was argued by the Crown in the case of Martin, at first instance in his trial, that he had acted disproportionately in taking a firearm to a couple of lads who were just clambering over his wall to steal. That was infuriating, anger-making and threatening in itself, but his use of force was excessive.

Eventually, the case went to the Court of Appeal, but there was a great deal of outrage in the press over the fact that a man who was defending his property—a place where he should feel safe—ended up being convicted of murder after his life had been made wretched by those who were stealing from him.

The case gave rise to great public debate, which centred on the question of what you do when an intruder invades your place of safety—your home—and on the special threat that that means to you as a householder, a property owner or someone in your own dwelling. Tony Martin’s appeal was dealt with by way of manslaughter, because his mental state was examined by psychiatrists, who decided that at that time he was suffering from mental illness.

The point at issue became a matter of great political debate and the coalition Government, coming into office, decided to change the law. They decided to create a sort of Tony Martin defence, which was that a householder or property owner should get a substantial margin of appreciation as to what is reasonable self-defence. The idea was that it was different. It was not like someone in a chip shop who gets into an argument with a person who takes out a knife and stabs them. That is totally disproportionate. It is not proper self-defence, and the reasonableness test would say that it was not reasonable. Criminal lawyers in this House will be able to give many an example of people behaving disproportionately. If somebody stands on your toe, you are not entitled to knock them out. It is expected that there should be proportionate behaviour in response to a threat or violence.

I want us to think about a read-across. What do I mean by that? I mean that it is quite wrong that that is available to a householder. I have no objection to the margin on reasonableness being lowered if somebody is protecting themselves in their house. If you wake in the night, hear someone rootling around downstairs and run downstairs taking a cricket bat or iron bar with you, or if you take a knife from the kitchen and run them through but it turns out that the intruder had no weapon on them and that no one ever threatened you physically but it was just the fact that they were there, that should allow the reasonableness test to be lowered.

What I am saying to the House is this. Think of the situation that has been described to the Committee over the last couple of hours in relation to strangulation, which is so often part of the history of women who fear for their lives because they know that the level of violence being used against them is escalating and a point is coming where they will run to the kitchen drawer and get a knife. That seems disproportionate but, in the context of what has gone before and the fear that they have previously experienced, it is not.

I am asking that there should basically be a read-across and that the same test that is applied in the Tony Martin scenario, where the householder is defending their safe space, should apply to a person who is protecting their place of sanctity—their home, their private relationship, their intimate relationship with their partner—which is being abused in such a way that it leads them to a situation where they fear for their own life and therefore might not be able to measure appropriately the threat at that time. What may seem disproportionate in other circumstances is not disproportionate in the circumstances that we are dealing with in that case. In the family home, for someone who has been under threat and experienced the kind of control that the Committee has heard described so potently in this House, the presumptively safe space of their intimate relationship should give them the same margin of appreciation that operates in the householder situation.

I hope the House will see that, although this affects very few cases and the numbers of women are small—over the long period of my being involved in serious murder trials, I would say that over 30 years I have dealt with maybe 10 or 12 women who have killed abusive partners —self-defence is often not available. It does not work for those women because they are seen as having responded in a way that was more than should have been the situation, because their husband did not have a weapon in his hand. It was the way that they had been abused and treated previously that added to the sense of their life being threatened. I am asking the House to look at that, and I am asking the Government to do that read-across. It is the old-fashioned saying, “What is good for the gander is good for the goose.” Women standing trial for killing an abusive partner face difficulties in invoking self-defence.

This amendment is supported by the domestic abuse commissioner, who is in situ at the moment, the Victims’ Commissioner, women’s NGOs and, it goes without saying, the many organisations that have ever dealt with a case where a woman has killed after years of abuse. That is rare, yes, thank God, but we have to make sure that justice is available to those women too. I beg to move.

[Baroness Hamwee (LD) [V]]

My Lords, I do not know whether the noble Baroness, Lady Kennedy, was intending not to speak to her next amendment, which is grouped with this one, but perhaps I will, though it will not be as good a speech as she would have made. This is another group of amendments that I would say seeks to apply up-to-date thinking to bring the law up to date. I am pleased to have been able to add my name to the noble Baroness’s amendments because I always want to be on the same side as she is; I think her middle name must be “Indefatigable”.

Parliamentarians learn from experts by experience. I think we have used that phrase already today. That does not mean being uncritical or bringing a hearts-and-flowers sentimental approach to things but being open to really listening to experiences. We are lucky to have in this House experts with another sort of experience—the lived experience of applying professional expertise in acting for clients—so they have a well-informed perspective. Clearly, the Minister who will be replying—he is not being given much time off today—to yet another group of amendments has been applying his own expertise as well as having his brief. It has been very refreshing to listen to him.

Section 76 of the Criminal Justice and Immigration Act 2008, which would be amended by Amendment 139 is—it says so in terms—intended to clarify the operation of the common law defences of self-defence and defence of property. Those two were very closely linked in the minds of the public in the reaction to reports of Englishman Tony Martin defending his castle. This brought about the householder defence but it is, in fact, just about self-defence, and so is this amendment, although one might substitute the notion of home as a haven rather than as a castle, as it was referred to in the Martin case. The amendment uses Section 76 to address whether the degree of force is reasonable in the circumstances but—or maybe “and”, as in the householder case—does not allow force which is “grossly disproportionate” in the circumstances as the person using the force believes them to be. This is why this is so much a matter of bringing the law into line with up-to-date thinking about domestic abuse, in particular coercive and controlling behaviour.

We have already debated, and will go on to debate in other amendments, the impact of such abuse on the whole person. It is a traumatic response that goes far deeper than a black eye “because I walked into a door, silly me”. I am not going to repeat the amendments and arguments that we have already heard today, because noble Lords will hear them in the context of the days of debate—we have had several days of debate—on this issue. My relative brevity on this amendment does not mean that I support it any less strongly.

I turn to Amendments 140 and 145. Amendment 145 is very long but is, if you like, consequential on Amendment 140. This is modelled on the statutory defence in the Modern Slavery Act, which recognises that a perpetrator may actually be a victim of modern slavery. In this amendment, the compulsion to commit offences is attributable to being a victim of domestic abuse and having no reasonable alternative. The provisions are adjusted for those under 18. Similarly, this amendment uses up-to-date thinking about what drives a woman—it is usually a woman—to offend. I cannot read my writing. I have written “significant”—I hope I am not leaving out a significant point.

The Modern Slavery Act defence was in the independent review of the Act, whose findings were accepted by the Government as striking the right balance between protecting victims and, in that case, preventing opportunistic misuse. There was careful consideration of the reported difficulties in disproving the defence to the criminal standard, but the review panel was satisfied that the jury system which applied was appropriate. The Government said they would keep this under review, as they should.

21:00

The review highlighted in the case of children, although I think this goes wider, the importance of understanding indicators of slavery—in this case indicators of abuse—and of training and guidance for judges and magistrates, as well as for defence lawyers, another matter we have debated today. It is just the same for domestic abuse. In technical terms, this statutory defence has to be raised, and should be raised at the earliest opportunity. That requires careful understanding and application of the defence—not something that can be left to come out in the wash of a case, as it were.

Both these issues are about perpetrators really being victims. I am delighted to support them.

[The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)]

The noble Baroness, Lady Jones, has withdrawn, so I call the right reverend Prelate the Bishop of Gloucester.

[The Lord Bishop of Gloucester [V]]

My Lords, I will speak to Amendments 139 and 140, to which I have added my name. I draw attention to my interests set out in the register. It is an immense privilege to support the noble Baroness, Lady Kennedy; I am grateful for her immense wisdom, knowledge and experience. I am also grateful to the noble Baroness, Lady Hamwee, for her excellent and candid laying out of the issues. It is a privilege to follow her.

In my role as Anglican bishop for women’s prisons and my recent appointment as Anglican bishop for the whole prison estate in England and Wales, I have made prison visits and spoken with prisoners, volunteers and staff, including governors and chaplains. As president of the Nelson Trust, I have heard first-hand the positive impact of trauma-informed practice in its excellent work with women serving their sentences in the community and women leaving prison.

Over the past few years, I have spoken with charities, organisations and community workers. In all those conversations, common themes emerge. One is the so-called revolving door of short custodial sentences, leading to catastrophic consequences for a woman and her family and often exacerbating a downward spiral into more serious offences and an inability to secure employment. A second theme is the number of women coming into contact with the criminal justice system who have experienced domestic abuse and previous trauma, and how this becomes a driver for their offending—in some circumstances, defending themselves against their abuser, as we have heard.

Women become trapped in a vicious cycle of victimisation and criminal activity. Their situation is often worsened by poverty, substance dependency or poor mental health; almost 60% of women supervised in the community or in custody who have an assessment have experienced domestic abuse. The true figure is probably much higher.

The Nelson Trust recently shared with me a painful example of this complex issue and how important it is to have a trauma-based approach. During the first lockdown, the Nelson Trust was called on a point-of-arrest referral scheme; if a woman is arrested and identified as vulnerable, she can be referred to organisations such as the Nelson Trust for support. A woman had been arrested as a perpetrator of domestic abuse and was very distressed. At the women’s centre, they found she was covered in bruises; she had experienced horrific sexual and physical violence during lockdown. She had taken to alcohol to cope with the abuse, and then retaliated against her abuser and ended up in custody. In this case, the Nelson Trust was able to help the woman access a refuge and enabled her to leave her abusive partner.

Another story I heard was of a woman serving a sentence for murder after retaliating against her abusive partner who had assaulted her for many years, including when she was pregnant with their child. Recently, the Nelson Trust advocated for a vulnerable woman who had retaliated against her partner after years of psychological abuse. She was acquitted, but many like her are not.

These amendments provide an opportunity to extend much better legal protection to the victims of domestic abuse whose experiences lead them to offend. At the moment, there is very little legal protection within the system to allow those victims to be diverted away from the criminal justice system to vital support. There is much overlap in the criminal justice system between the victims of crime and those who are the perpetrators.

Last year, a report by the All-Party Parliamentary Group on Women in the Penal System, of which I am an officer, uncovered cases of women contacting the police to report domestic incidents, only to end up being arrested themselves. The Howard League for Penal Reform asked one police force to analyse its data on arrests of women and girls over a two-year period. It turned out that almost three-quarters of the women who had been arrested had previously come to the attention of the police as victims of violence or sexual violence. More than half of them had been victims of domestic abuse. Obviously, much more needs to be done with police forces and diversion work, as well as changing the law.

I am not a lawyer, but I am a passionate supporter of trauma-informed interventions and doing all we can to recognise the root causes and drivers of criminal behaviour. As a Christian and as a Lord Spiritual, I am committed to a legal framework that emphasises restorative and reparative justice. I wholeheartedly support these amendments and I look forward to hearing the rest of the debate.

21:07

[Baroness Hodgson of Abinger (Con) (V)]

It is a privilege to follow the right reverend Prelate the Bishop of Gloucester. I shall speak to Amendment 140 and I congratulate the noble Baroness, Lady Kennedy, on introducing it so ably and eloquently. I also thank the noble Baroness, Lady Hamwee, and the right reverend Prelate the Bishop of Gloucester for speaking so strongly in support of it.

At Second Reading and in Committee, we have heard powerful speeches about dreadful personal experiences. They are stark reminders of the horrific impact that domestic abuse has not just on the individual, but, through the ripple effect, into the family across the generations and then on into the wider community. The noble Baroness, Lady Kennedy, has rightly highlighted the fact that domestic abuse can lead to desperate events where victims who were seeking to defend themselves end up in the dock, having been accused of committing a crime.

Research by the Ministry of Justice suggests that many prisoners have experienced or witnessed domestic abuse as children, and that these prisoners are more likely to be reconvicted within one year of release. The 2019 report of the Prison Reform Trust, There’s a Reason We’re in Trouble, cites domestic abuse as a driver of women’s offending. It sets out that 57% of women in prison report having been victims of domestic violence. More than half, at 53%, report having experienced emotional, physical or sexual abuse as a child, compared with 27% of men.

I can well remember visiting Holloway prison and talking to some of the women about their experiences. The report goes on to highlight the fact that women often encounter a culture of disbelief in the criminal justice system about the violence and exploitation to which they have been exposed. Alternatively, they may not be able to reveal what they have been through, and many women feel that they cannot support criminal proceedings against their abuser. As one woman commented in a discussion, “You’re too scared to charge him because you know you’ll get a worse time when he comes out.” All this means that women can become trapped in a vicious cycle of victimisation and criminal activity. Their situation is often worsened by poverty, substance dependency or poor mental health.

My noble friend the Minister argued at Second Reading that a number of defences are already potentially available in law to those who commit offences in circumstances connected with their involvement in an abusive relationship. I hope that this debate will make the Minister pause and think again, because the present situation is very unclear. In the meantime, we are told that it is being monitored. Can he advise the Committee of when an assessment was last made, and will he make the report of the results available in the Library of the House?

[Lord Bradley (Lab) [V]]

My Lords, declaring my interest in the register as a trustee of the Prison Reform Trust, I will make a brief contribution to wholeheartedly support Amendments 139 and 140, proposed my noble friend Lady Kennedy and other noble Lords. She introduced them expertly and I will not attempt to replicate any of that excellent material. As the Committee heard, the amendments would provide essential new protection for survivors involved in alleged offending which results from their experience of domestic abuse.

Members of this House will be aware, as I am from my 2009 report on mental health, learning disabilities and the criminal justice system, of the particularly high prevalence of mental health need among women in prison. It is getting worse. Ministry of Justice safety in custody statistics tell us that the annual rate of self-harm incidents for women in prison nearly doubled between 2012 and 2019, from 1,558 to 3,130 incidents per 1,000 women. This compares to an increase among male prisoners from 201 self-harm incidents per 1,000 men in 2012 to 650 in 2019. As we know and the Committee has heard tonight, the majority of these women are likely to be victims of domestic abuse and other forms of violence against women.

Further, women with a learning disability are more likely than those without to experience domestic abuse. Too little is still known about women with learning disabilities in prison, but they are likely to be far more over-represented compared to those in the community. A recent research report, published in 2018 by the Prison Reform Trust and KeyRing, entitled Out of the Shadows found that, of 24 women with learning disabilities who were in contact with or on the edge of the criminal justice system, most were driven into offending as a result of abuse by men. For example, this included one woman who had been repeatedly drugged and abused by her partner before retaliating and finding herself sentenced to prison. For some of the women, their learning disabilities may have been the result of traumatic brain injury, which is not always assessed and identified successfully.

The Government have acknowledged the strong links which often exist between women’s offending and their experience of abuse. However, I do not feel confident that the strong links are properly taken into account in criminal proceedings. The evidence presented by the Centre for Women’s Justice, the Prison Reform Trust and others suggests that practice on the ground is, at best, inconsistent and that many women do not even feel confident to disclose the abuse until they reach the relative safety of prison after they have been convicted. This is surely not good enough. It is certainly not clear to me why these survivors should not be entitled to the same level of protection as, for example, trafficking victims who are forced to offend as part of their exploitation, or householders facing an intruder in their home, as in the Tony Martin case, referred to so eloquently by my noble friend Lady Kennedy.

We have heard from the Government that they want to strike the right balance in dealing with these women as suspects and defendants. I therefore urge the Government to afford them the legal protection that they deserve from our justice system. It may well be a complex task, but it is surely not beyond us or our justice system.

21:15

However, if the Government are not minded to accept the amendments of the noble Baroness, Lady Kennedy—again, I urge them to do so—will the Minister explain precisely what steps are being taken to monitor the use of existing defences and review the need for statutory reform? Also, what further steps will be taken to ensure proper consideration of the context of abuse which I and other Members of the House have outlined tonight, and whether it is in the public interest to pursue a prosecution in each and every case involving a suspect who may also be a survivor?

I clearly support these amendments to give women the protection they deserve, and I hope the Government will too.

[Lord Paddick (LD) [V]]

My Lords, as the noble Baroness, Lady Kennedy of the Shaws, has so clearly explained—and I pay respect to her enormous experience over decades in this area—Section 76 of the Criminal Justice and Immigration Act 2008 raises the threshold from disproportionate to grossly disproportionate before the force used by a householder for the purpose of self-defence can be considered unreasonable.

The fear generated by being attacked in your own home—the visceral reaction, the instinct to defend yourself and your property in such circumstances—is considered so strong that using disproportionate force to defend yourself is considered to be reasonable in the domestic setting. While it can be argued that there should be no distinction and that reasonable force in the circumstances should be enough, Parliament decided that being attacked in your own home sets apart this kind of self-defence from other situations. The Minister will not be surprised to hear me use the same expression as the noble Baroness, Lady Kennedy: what is sauce for the goose is sauce for the gander. What was seen, at least by the tabloid newspapers, as the “Englishman’s home is his castle” provision in Section 76 of the 2008 Act should equally apply to what will in most cases be a woman defending herself against domestic abuse.

I have personally been in both these scenarios. I have cowered behind my front door as a violent stranger tried to kick down the door of my flat; thankfully, the police arrived before the door gave way. I have also cowered as my violent partner kicked and punched me. The fear caused by not feeling safe in your home is truly terrifying, especially when you are being physically attacked. The fear I experienced was similar in both cases, but the latter was far more frightening. Being attacked by a random stranger does not hurt as much as being attacked by someone you have allowed yourself to be vulnerable with, and who has subjected you to coercive and controlling behaviour over a number of years.

Throughout the passage of the Bill, I have been keen to ensure that male victims and those in same-sex relationships are not forgotten. Even here, we are talking about someone who is physically weaker being attacked in their own home by a stronger person. In most cases, but not exclusively, this will be male violence against women. If she is to defend herself against a much stronger man, her options are limited and she may have to resort to using a weapon—for example, as the only way effectively to defend herself, or simply because of the instinctive reaction to grab whatever is available, such as a kitchen knife.

It is not difficult to envisage how such a use of force might be considered disproportionate but understandable, particularly if you fear for your life in circumstances such as we heard described when considering the previous group of amendments, and which the noble Baroness, Lady Kennedy, explained. It might be considered disproportionate, but not grossly disproportionate. Can the Minister explain why this amendment should not be accepted, in the light of the higher standard of acceptable force available to a householder under attack from a burglar?

Awareness has recently grown of how prolonged and sustained abuse can turn a victim into an assailant. As my noble friend Lady Hamwee has explained, Amendment 139 and the subsequent amendment would bring the law into line with these recent developments. As the right reverend Prelate the Bishop of Gloucester has explained, a trauma-based approach needs to be adopted. There clearly needs to be a change of culture in the criminal justice system in this respect, as well as a change in the law.

The mental health impact on women prisoners has been clearly set out by the noble Lord, Lord Bradley. As my noble friend Lady Hamwee has explained, Amendment 140 is almost identical to Section 45 of the Modern Slavery Act 2015. In the same way that I believe the burden of proof lies on the Minister to show why Section 76 of the Criminal Justice and Immigration Act 2008 should not apply to victims of domestic abuse in relation to Amendment 139, I ask the Minister why Amendment 140 should not apply to victims of domestic abuse when a very similar statutory defence is available to victims of slavery and trafficking. The Government must come up with very strong counter-arguments if these amendments are not to be accepted.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, we on these Benches fully support Amendments 139, 140 and 145, in the names of my noble friend Lady Kennedy of The Shaws and others. The issues addressed in these amendments have been raised in the other place by my honourable friend the Member for Birmingham, Yardley, Jess Phillips, and others during the Bill’s consideration there.

The amendments, as noble Lords have heard, are modelled on existing law and should not cause the Government any trouble whatsoever; I look forward to the Minister’s response. My noble friend Lady Kennedy explained the problems women face when they have killed a partner, having been the victim of abuse for years and years and then find themselves in the dock. The amendments seek to address that and reflect the realities of domestic abuse.

Everybody has been very complimentary about the Bill—it is a very good Bill, long overdue and we wish it success—but to become really effective legislation, it must incorporate these amendments or government amendments with the same intent. It is reasonable to afford the victims of domestic abuse who act in self-defence, often in their own homes, reasonable protection. They are compelled to defend themselves, having suffered years of abuse. As my noble friend Lady Kennedy reminded us—we have heard it many times before—on average, two women a week are killed by their partner or former partner. That is an horrific figure.

Amendment 139 would provide domestic abuse survivors with the same legal protection as householders have in cases of self-defence. Members have referred to such cases. Amendments 140 and 145 are modelled on Section 45 of the Modern Slavery Act 2015 and would give victims of abuse a statutory defence where they have been compelled to offend as a result of experiences of domestic abuse.

We have heard excellent speeches in this short debate from all noble Lords, particularly from the right reverend Prelate the Bishop of Gloucester. I endorse all the comments of noble Lords. My noble friend Lord Bradley, in particular, made a compelling speech. He raised the issue of mental health, its effect on women prisoners and the need for proper context to be taken into account when deciding to prosecute cases. I look forward to the response from the noble Lord, Lord Wolfson. If he cannot accept these amendments, I hope he will tell the Committee that he understands the issue and will go away and reflect on it, and maybe come back on Report.

[Lord Wolfson of Tredegar (Con)]

My Lords, I first offer my sincere thanks and appreciation to the noble Baroness, Lady Kennedy of The Shaws, for outlining the case for these amendments. In response to her early comments, I can assure her that I have indeed listened to her and benefited from discussing these matters with her, both outside the Chamber in advance of today’s proceedings and in listening to her most diligently this evening. She has considerable experience in this area of the law.

In effect, these amendments seek to create two new defences: first, a defence of reasonable use of force by victims of domestic abuse who, in self-defence, react to violence from an abusive partner; and, secondly, a new statutory defence for victims of domestic abuse who commit a criminal offence. While in tonight’s debate the noble Baroness, Lady Kennedy, focused on the first of those defences, I have had the benefit of discussing both issues with her. I have read briefings on both and therefore hope that my reply will meet the points she has made inside and outside the Chamber. None the less, I will take each amendment in turn, because they raise different issues.

Amendment 139 is on the reasonable use of force. The Government are aware that what is being sought here is an extension to the current provisions to enable victims of domestic abuse to have the same level of protection as those acting in response to an intruder in the home. I am aware that the proposed new clause stems from a campaign by the Prison Reform Trust seeking to clarify the degree of force that is reasonable under the common law of self-defence where the defendant is a survivor of domestic abuse. It has been suggested by the Prison Reform Trust that the common-law defences are unsuitable in the context of domestic abuse.

In that context, as the noble Baronesses, Lady Kennedy and Lady Hamwee, explained, the amendment seeks to build on existing provisions in Section 76 of the Criminal Justice and Immigration Act 2008, with the intention that, as with householders, the degree of force used by the defendant would have to be “grossly disproportionate” rather than simply “disproportionate” by reference to the circumstances that the victim believed them to be, and to take into account other factors set out within Section 76. It has been suggested that this would fill a gap in the law.

Let me start by saying what I hope does not need to be said, given the terms of the Bill and what has been said in Committee on this and previous occasions. The Government recognise the harm suffered by victims of domestic abuse. Several defences are potentially available in law to those who commit offences in circumstances connected with their involvement in an abusive relationship, including the full defence of self-defence. In addition, the broad definition of domestic abuse in the Bill should assist, I hope, with identifying and clarifying the wide-ranging and pernicious nature of domestic abuse, and alerting all those involved in the criminal justice system to it.

It is worth mentioning at this point that the courts—by which I mean the judges—have developed the common-law defences and their relationship to domestic abuse. We should perhaps pay tribute to the judges for having recognised the nature and impact of coercive and controlling behaviour in the application of the criminal law and in sentencing, as well as in family and civil law. It is sometimes the case that the courts are quicker, more nuanced and more flexible in developing the common law than Parliament can ever be in introducing, by their very nature, more rigid and narrowly drawn statutory provisions. For fans of the common law, of which club I am an enthusiastic member, that is an important point to bear in mind.

There is also a need to balance recognition of the abuse suffered and its impact on the victim with the need to ensure that, wherever possible, people do not resort to criminal behaviour. The Government believe that the balance is currently reflected in the law, which continues to evolve and which aims to strike the right balance between those factors.

21:30

In a moving and very personal speech, the noble Lord, Lord Paddick, asked what the difference was between Section 76 and the proposed new clause in the amendment. I will deal with that head-on. The provisions in Section 76 of the 2008 Act largely cover a specific circumstance where an intruder—in most cases unknown to the defendant—puts the householder in a position where they are reacting on instinct or in circumstances which subject them to intense stress. By comparison, in domestic abuse cases, the response may well not be sudden and instinctive, but may follow many years of physical or emotional abuse. The current law on self-defence and loss of control allows this to be taken into account. So it remains appropriate for this law to be applied, rather than for it to be extended to a wider set of circumstances.

I also note that the amendment does not appear to deal with the defendant’s options to retreat. Section 76 makes it clear that there is no duty to retreat, but this option is still a factor to be taken into account. Again, I note that the circumstances of domestic abuse and a household invasion case may not be comparable, although I am well aware that of course there can be circumstances in which—on the particular facts of the case—an abused woman may not have options to retreat.

We have been advised 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. However, according to the Prison Reform Trust briefing, the rationale for Amendment 139 appears to be that,

“a jury may well conclude that the response was disproportionate without taking account of the long history of abuse.”

Even if such a change were to be made to the law, it would need to be accompanied by guidance and training for the police, CPS, the probation service, defence lawyers and the judiciary in order to ensure that it was applied as intended. Given this, it is not clear why such additional improved or revised guidance and training on the existing law, in so far as it relates to domestic abuse victims, would not be a sufficient additional safeguard in itself, without unnecessarily further complicating the criminal law in areas where we feel it is already robust.

Therefore, although the Government are sympathetic to the aim behind this amendment, we are not persuaded that there is a gap in the law which needs to be filled. Nor does it seem that the situation in which a householder reacts instinctively to an intruder in their home is directly comparable—or, as the noble Baroness, Lady Kennedy, put it, there would be a read-across—with the situation of a victim who has experienced a pattern of violent and abusive behaviour, including behaviour constituting an offence under Section 67 of the Serious Crime Act 2015.

My noble friend Lady Hodgson of Abinger and the noble Lord, Lord Bradley, asked about a review. We regularly reassess the effectiveness of any law and associated practices in protecting victims. We have previously given a commitment to do so in this regard, and we continue to review it.

I turn to Amendments 140 and 145, which seek to provide a new statutory defence for victims of domestic abuse who commit a criminal offence. Again, I am sure I speak for the entire Committee when I say that domestic abuse is an abhorrent act which can inflict significant harm on victims, their children and other family members. That is why we have brought this Bill forward, which not only targets domestic abuse but raises awareness and understanding of its horrific and destructive nature.

In that regard, I listened carefully to the arresting statistics put before us by the right reverend Prelate the Bishop of Gloucester, together with two moving examples of damage done by domestic abuse. Of course I take on board the point made by my noble friend Lady Hodgson of Abinger as to the long-lasting effects of domestic abuse and, as the noble Lord, Lord Bradley, pointed out, the interrelationship that you often find between victims of domestic abuse and learning difficulties.

The Bill seeks to raise the profile of domestic abuse in all its forms, and the wide definition should therefore help to clarify that wide-ranging nature for all involved in the criminal justice system. The new clause specifically proposed by this amendment would apply to victims of domestic abuse who have been coerced or forced to commit a crime because of fear or violence directed by a partner or family member. The defence would apply equally to cases where the victim commits a crime as a result of the domestic abuse that they have endured, which may have been carried out over a period of several years. The proposed new clause originates from a Prison Reform Trust campaign. As the noble Baroness, Lady Hamwee, explained, it is modelled on Section 45 of the Modern Slavery Act 2015—albeit with some differences, which I will come to.

Section 45 provides a statutory defence for victims of slavery and trafficking who are subjected to exploitation. As I just said, the amendment is modelled on that, but it has some important differences, including the replacement of the reasonable person test used in Section 45(1)(d) and (4)(c)—the so-called Bowen test—with a new form of objective test. This test has been replaced for a number of reasons, as I understand it. It has been suggested that the Bowen test is problematic for defendants who seek to rely on duress, where they have felt compelled to commit a criminal offence because of the domestic abuse they have experienced. It has been said that, for victims of domestic abuse who commit a crime to succeed in establishing a defence of duress, they would need to provide evidence of battered woman syndrome and learned helplessness. Additionally, it has been stated that medical evidence would need to be produced, which is often not practicable in cases where the crime committed may be seen as low-level offending, such as those tried in a magistrates’ court.

The amendment proposes a new objective test that would enable a defendant’s experience of domestic abuse to be taken into account without the need for medical evidence, although that could be adduced. The “relevant characteristics” definition, set out in the 2015 Act, would be replaced with a reference to “experience of domestic abuse”. The noble Lord, Lord Paddick, asked what the difference was and why we did not read over from one to the other. The answer is that we are not persuaded that the model on which this amendment is based—Section 45—is right or effective in this context. Of particular concern are the anomalies that the amendment could create for other offences. For example, there is a range of serious offences to which the Section 45 defence does not apply now—generally serious sexual or violent offences, which are set out Schedule 4 to the 2015 Act.

The proposed new schedule provided for in Amendment 145 seeks to replicate the list of excepted offences in Schedule 4 to the 2015 Act. But pinpointing the behaviour that caused the offence remains problematic. Even once we accept that the proposed statutory defence of compulsion to do an act is attributable to a person being a victim of domestic abuse—rather than being a victim of trafficking, slavery or other exploitation —the question then becomes: at what point in time, and to what type or level of domestic abuse, should any statutory defence be available?

The Bill sets out a wide-ranging definition of domestic abuse, and it is right that that wide definition helps to inform people seeking to understand the nature of domestic abuse and assisting in identifying the signs that a person may be a victim of domestic abuse. However, when it comes to providing a defence to a criminal charge—potentially a very serious one—it is not appropriate simply to say that there can be any level of abuse, or that abuse can be defined in the widest possible sense. That is not the case with modern slavery. The defence there does not apply to the widest definition of exploitation of a person but applies to behaviour that meets an existing criminal offence threshold: a threshold for a reasonable person to withstand behaviour directed against them. We are apprehensive that what could amount to domestic abuse, and therefore what could trigger this defence, is so wide-ranging that it could provide a full defence to any criminal act, save for those offences specifically listed.

Additionally, a full defence for a defendant who had been subject to domestic abuse would create difficulties for other defendants who had been subject to other forms of harm, such as racial harassment or sexual harassment from strangers. We are concerned that any new statutory defence would not only overlap with existing defences and prosecution policies but undoubtedly cause confusion as to which law or policy would be applicable. Uncertainty within the criminal law is something which we really must avoid.

We are additionally concerned by anecdotal evidence given by law enforcement partners and others that the Section 45 defence is being misused. It has been reported that some offenders falsely claim that they are the victims of modern slavery to escape justice. We are working with criminal justice partners to assess how that defence is being used in practice.

Several defences are potentially available in law to those who commit offences in circumstances connected with their involvement in an abusive relationship or situation. They include the full defences of duress and self-defence, as well as the partial defences of loss of control or diminished responsibility in homicide cases, and they are available to a victim of domestic abuse. Additionally, where a person accused of a criminal offence has been subjected to domestic abuse, this will be considered throughout the criminal justice system: from the police investigation through to the CPS charging decision, to defences under the existing law, and as a mitigating factor in sentencing. In considering our response to these amendments, we have sought to make sure that we continue to strike the right balance between all these factors.

To conclude, the Government remain unpersuaded of the need to create a new defence of reasonable use of force or a new statutory defence for victims of domestic abuse. A number of defences already exist and, given that the courts are able to interpret and take account of such matters in their consideration of a case before them, this enables the common law to develop quickly and more flexibly than any statutory defence would. I fear that I will not have persuaded the noble Baroness, Lady Kennedy, that my position is correct, but I hope I have persuaded her that I have listened very carefully to the points she has made this evening and in prior discussions. In those circumstances, I invite her to withdraw her amendment.

[The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)]

I have received requests to speak after the Minister from the noble Baroness, Lady Bennett of Manor Castle, the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. I call the noble Baroness, Lady Bennett of Manor Castle.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I thank the House for the opportunity to ask this question, which applies to all these amendments but particularly to Amendment 139, to which my noble friend Lady Jones of Moulsecoomb is a signatory. She was unfortunately unable to take part in this debate.

My noble friend would have referred to the fact that the Covert Human Intelligence Sources (Criminal Conduct) Bill allows blanket legal protections for undercover police and informants. The forthcoming overseas operations Bill creates similar new protections against prosecution for military personnel acting overseas. The Government have fought intensely for these protections against prosecution for the police and the military; they have fought against many attempts in your Lordships’ House to reduce or check these protections. In that context, how would the Minister explain—having granted such broad protections to the police and military, even in cases of fundamental wrongdoing—why the Government should refuse what are comparatively far more limited legal defences for survivors of domestic abuse, particularly with such well thought-out and well drafted amendments by the noble Baroness, Lady Kennedy of The Shaws?

[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Baroness, Lady Bennett of Manor Castle, for that question. I do not wish to be thought flippant in any way, but the short answer is that the situations are different, and therefore you have different considerations and different legal results. However, if she will permit me, given that I am not personally acquainted with that sort of detail—certainly of the overseas operations Bill—to respond to her this evening, I will add to my reply in writing.

21:45

[Lord Paddick (LD) [V]]

My Lords, I am very grateful to the Minister. I have two questions which rather puzzle me. First, he talked at length about praising judges for how they can quickly and flexibly adapt the common law of self-defence to new cases and how beneficial it is for it to be dealt with in that way, rather than with rigid primary legislation. Can he therefore explain why Section 76 of the Criminal Justice and Immigration Act 2008 was thought necessary?

Secondly, the Minister talked about the option to retreat in domestic abuse cases. Referring to the two scenarios that I spoke about from personal experience, I certainly had the option to escape out of the flat—luckily it was a ground-floor flat—when somebody was trying to break the front door down in the burglar scenario, but when my abusive partner had me up against the kitchen wall, I had very limited options to retreat. I cannot see how the option to retreat is more valid in the burglar situation than it is in the domestic abuse situation. Perhaps the Minister can help me.

[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Lord, Lord Paddick, for those questions. First, Section 76 of the Criminal Justice and Immigration Act dealt with a specific circumstance, whereby Parliament considered that that instance ought to be reflected by way of a specific statutory defence. The question for this evening is whether there is a suitable read-across into the matters we are discussing. For the reasons I sought to explain, I suggest that there is not.

Secondly, as to the option to retreat, I hope I made it clear that I was not saying that there is always an option to retreat in domestic abuse cases; I was making the point that there is generally very little option to retreat in the householder case. Again, that is an instance where you cannot simply read across to the domestic abuse case. I hope the noble Lord is content with those responses, but I am very happy if he wants to take those points up with me hereafter so that we can discuss them.

[Baroness Hamwee (LD) [V]]

My Lords, I understand the points that the Minister has made about the common law developing—that is inherent in it—but, like my noble friend, I want to pursue the point about flexibility. If the courts were that flexible—I suppose this is a rhetorical question—would we be moving and speaking to these amendments?

The proposed new clause in Amendment 140 is modelled on—but, I accept, does not completely repeat—the provisions of Section 45 of the Modern Slavery Act, referring to “the person’s circumstances”. As far as I am aware, I have not received the briefing from the Prison Reform Trust, but does the Minister accept that the remarks of the right reverend Prelate and the noble Lord, Lord Bradley, go very much to the point about a person’s circumstances? The Minister referred to concern about misuse. At Second Reading, I think I made the point that if there is misuse we should be looking at the misuse, not at not applying a defence which should be a good defence in general.

Finally—again, I suppose this is rhetorical—with regard to the balance, and we are for ever searching for the right balance, does the Minister agree that, given the fast-developing understanding of domestic abuse and its impact, civil society will likely pretty quickly, in parallel, be developing its ideas about what is the right balance?

[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Baroness, Lady Hamwee, for those various questions. On the issue of the person’s circumstances, I hope I set that position out in my reply. Perhaps it is the sort of point I could set out to her in writing in a couple of paragraphs, if she would not mind.

We are concerned when defences may be being misused; I made it clear that there are some concerns with the victims of slavery defence in that context. On the last point, which I think the noble Baroness accepted was somewhat rhetorical, she is certainly right that we always seek a balance. The point she makes that the law must keep up with the expectations of civil society is a profound one; it is, indeed, one of the big advantages of the common law. I am sure, therefore, that the issues raised by these amendments will continue to be discussed. The question before the Committee this evening is whether the legislature should provide for explicit statutory defences in these terms. For the reasons I have sought to set out, in my opinion, it should not.

[Baroness Kennedy of The Shaws (Lab) [V]]

My Lords, I should tell the Committee that I turned a page too soon in my opening address on these amendments. I did not have the chance to really lay out the second of the statutory defences I am promoting, in Amendment 140.

I regret that I used the term “read-across,” because there are always lawyers who will use language literally. Of course, I did not mean it is an absolute read-across to talk about a householder as distinct from a victim of abuse, but the gravamen is the same. The core of it is about somebody put in fear in the place they want to feel safe: their home. I cannot think of any domestic homicide where I have represented a woman who has killed her partner or ex-partner that did not happen within a household—a place where she was hoping to feel safe but did not, and where experience had taught her to feel fear and terror.

I am afraid I have to say to the Minister that some time, I will take him by the hand into a women’s prison and have him sit down and listen to the accounts of women, by asking them to look him in the eye and tell him their stories. They are so often there because of childhood abuse, having been brought up in abusive households and with direct experience of partner abuse. We could almost empty our prisons without them having women who are there because of their mental health. They are not mentally ill for no reason; almost invariably, it is because of the kind of abuse we have heard about in the debates on this Bill.

I say this respectfully, but the Government are again falling into the trap of saying there are nice victims and bad victims, or of saying: “We will change the law for the good, conforming victims but not for the victims who somehow transgress”. These are the victims who, in the end, defend themselves because they are so in terror for their lives, who are so in fear of a partner that they commit a crime—carrying the drugs from A to B or hiding them in their sock drawer, for example. All I am saying is that there is a double standard in this debate: as soon as you move to that which involves crime and a woman, or anybody who is abused, is in the dock, then suddenly your compassion for the issue of domestic abuse somehow dissipates.

I am very concerned that there is not enough real consideration of the toll of abuse: we are moving into the field where somebody ends up transgressing the law but it is really because of what they are experiencing. If a psychiatrist were to speak to this Committee, they would tell noble Lords that when somebody has experienced fear for their life—we have heard about it in relation to strangulation—and thought “I am going to die at the hands of this person”, and then suddenly smells that level of fear again, in the air, in those circumstances they might take a knife and defend themselves, or take a heavy weapon and hit somebody fatally on the head. The test of “reasonableness” or whether the force was “disproportionate” has to be read in the context. That is why I am saying that it would have to be “grossly disproportionate” for it not to afford a defence of self-defence for somebody who has experienced long-term and serious abuse.

What we are seeing here are the very double standards that are so often experienced by victims of abuse and by women. It goes back to the nature of law and its patriarchal roots. It is about saying that, yes, women who are abused deserve all our compassion but if they overstep the mark, they do not.

Our prisons are full of women who have had these experiences—indeed, I have acted for women who have ended up killing a partner. They do not do it because they suddenly want to wreak vengeance; they do it in exactly the circumstances of the householder who feels in absolute terror for their life.

The failure to make those links and to understand this may be because one has not spent enough time sitting in a cell with people who are coming up for trial. I can tell the Committee that that is the circumstance, and if you can afford, because the Daily Mail demands it of you, to lower the standard of reasonableness and be more flexible for a householder—as indeed you should—then that kind of flexibility should be available to those who have been experiencing long-term abuse.

I ask that the noble Lord look again at the double standard that is operating here. It is partly, of course, because Governments always want to play the law-and-order card and do not want to be seen to be soft on people who commit crime. But very many of the women who end up in prison did what they did because they were under the coercion and control of somebody else, and were absolutely in fear of that person. I really regret the response I have received from my friend, the noble Lord. I ask him to take his great lawyer’s skills and go back to the drawing board again, because he is missing something very important here, which is about justice for women. I beg leave to withdraw the amendment, with great regret, and I am really disappointed in the ministerial response.

Amendment 139 withdrawn.

Amendment 140 not moved.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

We now come to the group consisting of Amendment 141. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate, and that anyone wishing to press this amendment to a Division must make that clear in the debate.

Amendment 141

Moved by

[Lord Marks of Henley-on-Thames]

141: After Clause 68, insert the following new Clause—
“Controlling or coercive behaviour by persons providing psychotherapy or counselling services
(1) A person (“A”) commits an offence if—(a) A is a person providing or purporting to provide psychotherapy or counselling services to another person (“B”),(b) A repeatedly or continuously engages in behaviour towards B that is controlling or coercive,(c) the behaviour has a serious effect on B, and(d) A knows or ought to know that the behaviour will or may have a serious effect on B.(2) A’s behaviour has a “serious effect” on B if—(a) it causes B to fear, on at least two occasions, that violence will be used against B, or(b) it causes B psychological harm which has a substantial adverse effect on B's usual day-to-day activities.(3) For the purposes of subsection (1)(d) A “ought to know” that which a reasonable person in possession of the same information would know.(4) In proceedings for an offence under this section it is a defence for A to show that— (a) in engaging in the behaviour in question, A believed that he or she was acting in B’s best interests, and(b) the behaviour was in all the circumstances reasonable.(5) A is to be taken to have shown the facts mentioned in subsection (4) if—(a) sufficient evidence of the facts is adduced to raise an issue with respect to them, and(b) the contrary is not proved beyond reasonable doubt.(6) The defence in subsection (4) is not available to A in relation to behaviour that causes B to fear that violence will be used against B.(7) A person guilty of an offence under this section is liable—(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both.”

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, this amendment, in my name and the names of my noble friend Lady Jolly and the noble and learned Lord, Lord Garnier, addresses an extremely serious issue that affects far more lives than noble Lords might have expected. Psychotherapists and counsellors are not in any way regulated by law. In opening a debate on this issue on 2 March last year, my noble friend Lady Jolly pointed out:

“The terms ‘counsellor’ and ‘therapist’ are not protected. All of us could call ourselves such”.


She also pointed out that there is

“no assurance of the level of training or competence … nor a redress system to access should something go wrong”.—[Official Report, 2/3/20; cols. 468-69.]

We should all be clear that this amendment is not a criticism of the work undertaken by many straightforward, honest and understanding therapists and counsellors up and down the country, who are dedicated to helping their patients or clients address difficult issues in their lifw and get through particularly troubling periods. Nothing I say is intended to disparage their commitment or undermine their work. However, it is a tragic reality that a combination of this lack of regulation and the cruel techniques of coercive control adopted by some who offer so-called therapy and counselling services leads to many—mostly young—lives being, quite literally, ruined.

There is a pattern to these cases of abuse: charlatan therapists or counsellors secure clients—usually young and always troubled people—and proceed, over a period, to take over their life. Sadly, the typical case involves such so-called counsellors persuading their clients, quite without foundation in fact, that they have been dreadfully wronged or abused by their parents or families during their childhood. They generally implant entirely false memories in those clients. As the clients come to believe, under an insidious form of persuasion, that these false memories represent reality, they are led to blame their parents and families for all that has gone wrong in their life and all that troubles them. In this way, the clients involved are gradually alienated from their parents and families in a sinister process of coercive control.

The well-known and well-documented phenomenon of transference, originally explored by Sigmund Freud in the 1890s, plays its part in this sad process. It involves the clients projecting on to the therapist or counsellor feelings that they originally held towards a parent or other important figure in the client’s early life. The clients’ parents and other close family and friends are supplanted by the counsellor in the client’s affections by a learned dependence on them.

In our debate last March, I said that such clients are

“brainwashed by unscrupulous and controlling individuals. These charlatans play on their clients’ suffering, deluding them into a false belief in their treatment”—[Official Report, 2/3/20; col. 477.]

Everything that I have read and learned since that debate in relation to this issue and in preparing for this debate has strengthened my concern not only that that description was fair but that I underestimated the extent of the problem.

These issues have been widely recorded in the press and I will not detail them now, but I will repeat a question posed in the Daily Telegraph not long ago:

“What made two seemingly happy young women from loving homes sever all contact with their families and friends, renounce their inheritances and vanish into thin air?”


The journalist investigated how

“a self-styled ‘personal development coach’ digging for ‘forgotten’ childhood memories opened a door to catastrophe.”

The article went on to describe how a rogue counsellor had ruined two young lives in the way I have described, pointing out that there had been absolutely nothing the courts could do about it, given that the clients were adults—although they were young. The law offers no protection whatever for the victims of what is so clearly abuse by coercive control. The fact that such counsellors often charge their clients substantial fees, as the rogue counsellor did in those cases, only serves to make the matter worse.

Our amendment would introduce the following offence:

“Controlling or coercive behaviour by persons ... providing or purporting to provide psychotherapy or counselling services”.


The proposed offence is closely modelled on Section 76 of the Serious Crime Act 2015, which covers “controlling or coercive behaviour in an intimate or family relationship”. The definition of coercive and controlling behaviour in that Act is mirrored in this amendment, and the definition of the required relationship for the Act is mirrored in Clauses 1 and 2.

As the noble Lord, Lord Astor of Hever, who would have liked to speak today but is unable to do so, said when we debated this issue last March:

“Section 76 of the Serious Crime Act covers domestic abuse. The Government accept that individuals can be coercively controlled, and they have rightly made it illegal for a spouse, partner or parent to coercively control somebody with whom they have a relationship—that is an imprisonable offence. However, in the case of coercive control, the law does not apply equally to everyone. A person coercively controlling their daughter would be breaking the law, but the same person coercively controlling someone else’s daughter is not covered by the law. There does appear to be a gap in the law, so will the Government look into this?”—[Official Report, 2/3/20; col. 472.]


The logic of that question is inescapable. This amendment is directed to filling the gap identified by the noble Lord, Lord Astor. The gap has been filled by legislation in France, Luxembourg and Belgium. The French litigation broadly criminalises persistent or repeated pressure on a person which abuses a vulnerable person’s weakness or abuses a person in a state of psychological dependency resulting from serious or repeated pressure or techniques used to affect their judgment in a way which is seriously harmful.

I have been grateful for the support of the noble Lords, Lord Astor of Hever, Lord Fairfax and Lord Dannatt, and my noble friend Lord Alderdice and others, who have not been able to speak tonight. Numbers of noble Lords have told me that they know families and young people who have fallen victim to the actions of charlatan psychotherapists who would be liable to be prosecuted for the new offence proposed by this amendment.

My hope is that the Government will agree to legislation reflecting this amendment and that it will be supplemented in the future by provisions requiring psychotherapists and counsellors to be licensed and regulated, with a register of qualified members, recognised qualifications and a clear statement of ethical standards. Meanwhile, serious cases where charlatan psychotherapists and counsellors are guilty of coercive control which is plainly abusive should be met by their prosecution for a criminal offence, as set out in this amendment. I beg to move.

[Lord Garnier (Con) [V]]

My Lords, I apologise for not taking part on Second Reading, although I have read the Official Report. I also apologise for keeping my noble friend the Minister, new to his job, a bit longer at the crease.

Amendment 141 proposes a new clause that is within the scope of the Bill, but its value is not dependent on the Bill. The wording and effect of Amendment 141 is self-explanatory but, if it needed any further elaboration, the noble Lord, Lord Marks of Henley-on-Thames, has just provided it in his excellent speech. I cannot improve on what he said, but now is the moment when Parliament must at last legislate to outlaw the quack counsellors who predate on vulnerable people through controlling or coercive behaviour, and to provide some sort of protection to their victims or intended victims.

I have been concerned about these quacks and trying without success to get the Government to legislate for some years. I worked with Oliver Letwin and Tom Sackville, two former Ministers, as well as parliamentary counsel and Ministry of Justice officials with the support and encouragement of David Cameron, who had a constituency interest in the matter. I spoke about these quacks at Report on the Modern Slavery Bill in November 2014 and the Serious Crime Bill in February 2015 when I was a Member of Parliament, and then again in your Lordships’ House on 2 March 2020 in the debate on the unregulated treatment of mental health, initiated by the noble Baroness, Lady Jolly. Now, thanks to the noble Lord, Lord Marks, the noble Baroness, Lady Jolly, again, and the other contributors to this debate—as well as my noble friend Lord Astor of Hever, who spoke in the debate last March about the Serious Crime Act—we are making real progress.

We have laws to protect children and those under a mental incapacity through intellectual impairment, disability or the effects of old age. We can prosecute those who dishonestly take old and frail people’s money, but we leave unprotected adults who may succumb to pressure exerted on them by others of malevolent intent because their exploitative activities currently do not come within the criminal law.

From the outset, I have had in mind some young, adult women whose experiences were brought to my attention by their parents and families. In essence, they had been brainwashed or suborned by quack counsellors. They persuaded these young people to break off all contact with their families, infected them with false memories and got them to pay fees for the so-called counselling. Some of these young women were well-off and suggestible but all of them, for no apparent reason, broke off all contact with their families.

As the noble Lord, Lord Marks, has just said, France, Belgium and Luxembourg have laws to criminalise the behaviour of predatory charlatans who exploit others in a state of emotional or psychological weakness for financial or other gain. It must be assumed that their laws do not conflict with those articles of the ECHR that protect the right to private and family life, the right to freedom of expression and association, and the right to freedom of thought, conscience and religion. To take the French example, in that jurisdiction it is an offence punishable by imprisonment and very heavy fines to abuse the ignorance or state of weakness of a minor or of a person whose particular vulnerability due to age, sickness or infirmity, to a psychological or physical disability or to pregnancy is apparent or known to the offender. It is also an offence to abuse a person in a state of physical or psychological dependency resulting from serious or repeated pressure or from techniques used to affect his judgment in order to induce the minor or other person to act, or abstain from acting, in a way seriously harmful to him.

Amendment 141 is clearly different but, I believe, as useful. One way of considering whether the proposed defence in Amendment 141 would work is to ask oneself the following questions. Would it be prosecutable in theory and in practice? Could each of the elements of the offence be proved in a real-life example? Would the measure deal with the mischief that was identified, and would it catch no one else? The answer to those questions is yes. How would it affect partners, husbands, wives, teachers, gurus, salesmen, priests and employers, all of whom are likely to have power and influence? It need not do so. Would it allow the mentally capable who want to give away their fortunes and leave their families to do so? Of course it would. Would it make sufficiently clear what was criminal behaviour and what was not? Would it comply with the European Convention on Human Rights? Yes, it would. What effect would it have on religious freedom, or freedom of expression or association? In my view, none at all.

The victims of these bogus therapists have been waiting far too long for Parliament to help them. The amendment is humane and practical, and it has nothing whatever to do with party politics. If the laws of France, Belgium and Luxembourg can protect the people that this amendment seeks to protect, the law of England can and ought to do so as well. Amendment 141, or something like it, should be added to the Bill.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am afraid we have to leave it there for this evening.

Debate on Amendment 141 adjourned.

House resumed.

House adjourned at 10.14 pm.