Grand Committee
Financial Services Bill
Monday 8th March 2021
(3 years, 8 months ago)
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The Deputy Chairman of Committees (Baroness Healy of Primrose Hill) (Lab)
My Lords, the hybrid Grand Committee will now begin. Some Members are here in person, respecting social distancing, others are participating remotely, but all Members will be treated equally. I must 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 touch points 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.
I will call Members to speak in the order listed. During the debate on each group, I invite Members, including Members in the Grand Committee Room, to email the clerk using the Grand Committee address if they wish to speak after the Minister. I will call Members to speak in order of request.
The groupings are binding. Leave should be given to withdraw amendments. When putting the question, I will collect voices in the Grand Committee Room only. I remind Members that Divisions cannot take place in Grand Committee. It takes unanimity to amend the Bill, so if a single voice says “Not Content”, an amendment is negatived and if a single voice says “Content” a clause stands part. 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.
Amendment 74
“Alignment of accounting to prudential standards
Where the prudential capital and profit or losses for a banking company are lower than the accounting numbers for that banking company where International Accounting Standards have been used, then the accounting numbers must have an adjustment to the balance sheet and profit and loss account in order to—(a) align the accounting numbers with the regulatory capital of the banking company which constrains the growth of a banking company and its ability to lend,(b) align the regulatory capital for going concern purposes with the accounting capital for going concern purposes,(c) align the regulatory capital and profits for remuneration purposes with the accounting capital and profits in accordance with the regulations for shareholder approval of director remuneration, and(d) align the regulatory capital and profits for distribution purposes with the accounting capital and profits for distribution purposes.”Member’s explanatory statement
This amendment ensures that when there are prudential filters discounting capital these should be carried through to accounting capital figures.
Baroness Bowles of Berkhamsted (LD) [V]
My Lords, I declare my financial services interests as in the register. The two amendments in this group concern the use of international financial reporting standards, particularly with regard to banks. Their aim is to permit a very abbreviated explanation of some of the problems with and lack of transparency of IFRS and to probe the return of a role for the Bank of England concerning the endorsement of accounting standards now that the approval of IFRS is repatriated to the UK and their approval under UK legislation involves an economic interest test. I thank my noble friend Lady Kramer and the noble Lord, Lord Sikka, for signing my amendments.
It is undeniable that IFRS played a part in the financial crisis and, even though they have been amended since in recognition of that role, they are still not fit for purpose for calculating prudential capital. As far as banks are concerned, they have two sets of numbers: statutory accounts for Companies Act going concern, on which there is an auditor’s opinion, and numbers for the prudential regulator which—if I may put it this way—really show the going concern situation, because that is what prudential regulators want to know.
It is worth looking at a couple of points to see the sort of thing that regulators discount for prudential purposes. Good will is taken out, because obviously it is not loss-absorbing and is not much good when a company is running out of money. It is also the case that a bank’s debt can be shown merely at the junk bond debt value in a bank’s IFRS accounts rather than the sum actually owed, which again is not the real money situation. For a bank that is going bust, or just not doing so well, the published accounts can show a rosier picture than the prudential numbers. I do not know any serious analysts who use the IFRS accounts rather than regulators’ numbers.
Regrettably, there are many other anomalies affecting other businesses. IFRS 15, for example, can introduce a smoothing effect, changing some sales into an income spread over future years and therefore providing exactly the kind of disguising of downturns that has caused problems in the past.
Given that a bank’s ability to trade is determined by its prudential solvency and banking licence rather than its IFRS accounts disclosed to the market, it is actually a bit absurd to say that a set of accounts can fit the Companies Act going-concern requirements and be signed off for the market when a bank might be a gone concern as far as the regulator is concerned and no longer able to trade. That may be the theoretical end-game problem, but it would seem more sensible for the banks to have to disclose to the markets the accounts that they have to live by for their licence. That is probably a better set of numbers on which to reward executives as well.
Many other countries recognise such anomalies and do not allow IFRS to be used without modification. Australia has its guidance note AGN 220.2, Impairment, Provisioning and the General Reserve for Credit Losses, and fared better in the financial crisis as a result. EU countries do not allow IFRS or IFRS-like calculations at the company level for determining going concern. The US will have nothing to do with it and only very grudgingly allows it to be used by non-US companies. I know that because I helped to negotiate it. The UK is really the outlier here.
Amendment 74 suggests that where the prudential capital and profit or loss for a banking company are less than the accounting numbers, the accounting numbers should be adjusted to the prudential numbers in the balance sheet and the profit-and-loss account because it is the regulatory capital that is the true amount for limiting growth, the real going-concern number, the safe distribution calculation and the fair director remuneration assessment. Yes, I am being provocative because I want some thinking on this, not the usual bland leave-us-alone acceptance.
I turn to Amendment 77. The PRA is the body closest to dealing with the unrealities still existent in IFRS that affect banks and recognising the effects that they have on the safety and stability of companies. The Bank of England is surely the pre-eminent body for analysing economic effects in the UK. Therefore, my Amendment 77 proposes to give the Bank of England a role in determining whether there is an adverse effect on the economy of the UK—the test set in the relevant statutory instrument for endorsing IFRS—and whether the standard is suitable for use in prudential regulation and, if not, to require that it not be used for the purpose of prudential regulation. Of course, some of this overlaps with what it is already doing.
I am sure that the Minister and other Members of the Committee realise that I am using this opportunity to highlight a matter that should be looked at more carefully, rather than just letting the IFRS juggernaut trundle on, whether that be for another HBOS or another Carillion. There are significant issues that affect the economy as well as many other issues with IFRS that depart from the normal logic of what accounts should mean and that are hard, if not impossible, to reconcile with the various requirements of company law. They have been swept under the carpet for far too long. I beg to move.
Baroness Noakes (Con)
My Lords, I am struggling with Amendment 74 because I think that it is aiming at a target that does not really exist, and it confuses capital and profits and losses.
The amendment would require what are quaintly called the “accounting numbers” to be adjusted to align with regulatory capital. Apart from anything else, that would result in accounts that do not comply with the Companies Act 2006, which requires, under Section 393, that accounts show
“a true and fair view of the assets, liabilities, financial position and profit or loss”.
The amendment seems to suggest that adjustments would be made to the accounts other than for the purposes of compliance with international accounting standards or to show a “true and fair view”, and, in that case, I believe that the resulting accounts would not comply with the Companies Act. We have to emphasise that these are international accounting standards, to which all countries that sign up follow, so this would be a major departure for accounting by banks and other institutions in this country.
I also note that, in proposed new paragraph (d), this is to apply to “profits for distribution purposes”, but that seems to misunderstand the fact that distributable profits are determined at the level of the parent entity solo accounts, whereas the adjustments that I believe are being targeted would be found in the accounts of subsidiary regulated entities or in the consolidated accounts, rather than those of the parent itself.
Regulatory capital already operates as a constraint on lending, so I fail to see what real-world impact any adjustments in the statutory accounts would have. While I understand the concept of regulatory capital, I do not understand the concept of “prudential” or “regulatory” profits or losses. I do not believe that “regulatory profits or losses” is a term that really exists, except to the extent that accumulated profits or losses form part of regulatory capital. It is difficult to see how proposed new paragraph (c) in Amendment 74 would work in relation to remuneration.
The noble Baroness, Lady Bowles of Berkhamsted, has explained the sorts of adjustments that are made for regulatory purposes and that, under her amendment, would be taken into the statutory accounts—for example, the treatment of intangible assets. It is not clear to me why the prudential treatment of these items should be imported into true and fair accounts. The treatment for regulatory capital is linked to loss absorbency, which is not an underlying principle of financial accounting, and it therefore cannot readily be accommodated within the structure of accounting standards.
Pillar 3 statements, which are required to be produced by all regulatory banks, set out the information required in much detail. If the noble Baroness is correct—I am not sure that she is—that analysts use and rely on Pillar 3 statements, not statutory accounts, they already have that information: all of it is in the public domain.
Amendment 77 is unnecessary. It is already open to the PRA to base regulatory capital on different numbers from those in the annual accounts. I have already mentioned intangible assets. It also ignores gains or losses or known liabilities, a very arcane bit of the accounting standards that makes companies recognise gains when their credit ratings reduce the fair value of their outstanding liabilities. The PRA has not needed any special statutory cover to eliminate that from regulatory capital.
Furthermore, it is unsound for the Bank of England to approach accounting for individual institutions on the basis of the impact that a standard may have on the economy of the UK, as if accounting were a mere plaything of policymakers. I hope that the noble Baroness, Lady Bowles, will not press these amendments.
Lord Sikka (Lab) [V]
My Lords, it is a great pleasure to follow the noble Baronesses, Lady Bowles of Berkhamsted and Lady Noakes. I will speak to Amendments 74 and 77 because they both raise some real, important and fundamental issues.
As the noble Baroness, Lady Bowles, indicated, vastly different numbers for bank capital and profits are communicated through conventional financial statements and by the regulators—because they are prepared on different assumptions, for different audiences and for different purposes. I hope that the Minister will tell us which of those numbers can considered true and fair. Can he also say whether the regulators are justified in relying on something that does not pass that test?
Viscount Trenchard (Con) [V]
My Lords, these amendments, which are technical in nature, require banks that prepare their accounts in accordance with international accounting standards to apply prudential filters discounting capital to the banks’ statutory accounts. Having read the amendment, I am not clear which is the tail and which is the dog. Amendment 74 in the name of the noble Baroness, Lady Bowles of Berkhamsted, requires a bank to align its accounts with its regulatory capital or prudential capital, and at the same time requires the bank to align its regulatory capital with its accounting capital, for three separate purposes.
I agree with my noble friend Lady Noakes’s forensic criticism of the amendment. I am not a chartered accountant, but I have worked in corporate finance and mergers and acquisitions for many years, and I find the amendment confusing. Does
“then the accounting numbers must have an adjustment to the … profit and loss account”
mean that the bank concerned must alter its accounting principles and adjust its accounts to use the prescriptive and conservative accounting principles used by the PRA for the monitoring of banks? If so, would a bank be required to restate past years’ published accounts for consistency’s sake? Proposed new paragraph (a) suggests that the PRA’s measurement of capital must be carried through to the bank’s accounts, but proposed new paragraphs (b) to (d) suggest that the bank’s regulatory accounts should be adjusted to conform with the PRA’s measurements. I am not clear how that can be done and what the PRA would have to say about it.
The amendment refers to international accounting standards, which were standards issued by the International Accounting Standards Board, based in London. EU legislation has continued to use the term “international accounting standards”, but they were replaced in 2001 by international financial reporting standards—IFRS. The noble Baroness confirmed that she meant IFRS rather than IAS in her amendment, but how does she intend that her amendment should affect banks that apply other accounting standards, such as American banks, which still prepare their accounts according to GAAP? Concepts in the amendment such as accounting numbers and regulatory capital need proper definition.
I have rather more sympathy with Amendment 77. The International Accounting Standards Board develops and issues IFRS for use internationally. In the EU, things are then at the discretion of the European Financial Reporting Advisory Group—EFRAG—which advises the European Commission on whether and how the IFRS should be adopted for businesses in the EU. EFRAG will consult the relevant national bodies as part of that process; for example, if a new or revised IFRS is issued by the IASB that impacts the banking industry, EFRAG will consult the European Central Bank on the impact of that standard before making a decision on its adoption.
Now that the UK is able to establish an independent endorsement process, it seems sensible that that process should similarly involve the Bank of England in matters relating to IFRS that may impact the institutions over which the PRA has regulatory authority. I am not sure whether the amendment as drafted is satisfactory, but I would support the introduction here of an endorsement role for the Bank. I look forward to hearing my noble friend the Minister’s views on that.
Baroness Kramer (LD)
My Lords, in this area I cannot pretend to have the scope of knowledge or the expertise of my noble friend Lady Bowles or the noble Lord, Lord Sikka, but I have a great deal of sympathy with their amendments which comes from long frustration with trying to deal with banking standards. I probably had some small part to play in the focus that the Parliamentary Commission on Banking Standards applied to looking at IFRS and other banking frameworks. I would defy almost anybody looking at the published accounts of Northern Rock, HBOS or RBS to have identified how fragile those institutions were and how easily they would crack the moment any pressure was applied to the very fragile arrangements they had in place. It is no wonder that it was missed by the regulators if they were looking at the disclosures that came from those institutions. They were not falsified; it is just that working your way through the disclosures very often discloses very little.
I spent a good part of my banking career trying to extract real and consistent information from accounting statements. That was largely in the States, so we were using GAAP, which I think many people will acknowledge tells one a lot more than IRFS ever does, but a bank has the resource to do that kind of deconstruction for a potential or existing credit client. Investment firms have the resources to do that kind of deconstruction, and so do regulators, but for any normal investor, and certainly for any smaller creditor such as a trade creditor, it is impossible to have those resources, as it is for any normal politician, even if in the end we carry the buck, in a sense, for whether or not we have a system that works. Over many years, the only clients who ever handed me a straightforward deconstructed set of accounts were Warren Buffett and Charlie Munger, who headed up the GEICO insurance subsidiary. They did it simply because they felt that bankers should know what was going on. That is a good enough recommendation for any company or regulator.
Lord Eatwell (Lab)
My Lords, I have sympathy with the concerns behind these amendments. As the noble Baroness, Lady Bowles, and my noble friend Lord Sikka have spelled out so clearly, there is an intimate link between accounting standards and effective prudential regulation. It is probably true that nothing has a greater impact on policy than the manner in which relevant variables are measured.
That relationship between accounting standards and prudential regulation has been exposed just this last week with the collapse of Greensill Capital, a supply chain financing firm. Its business model was based on flaws in UK accounting—that was how it worked. As the Financial Times reports:
“While a company that uses supply-chain finance owes money to a financial institution, accountants do not class these facilities as debt. Instead a company typically books the money owed in the ‘trade payable’ or ‘accounts payable’ line of its balance sheet, mingled in with all the other bills owed to suppliers. While a footnote to the accounts might explain how much of this line is made up of money actually owed to financial institutions, rather than suppliers, there is no requirement to disclose it.”
Lack of disclosure means that the supply chain has proved popular with struggling companies looking to mask their mounting borrowings. When nervous lenders remove these facilities from heavily indebted companies, it can create an effect similar to a bank run on their working capital position, whereby that quasi bank run then escalates into risk to the financial services sector. Who really suffers? Typically, it is the SMEs at the origins of the supply chain. Greensill is not an isolated example. Parliamentary investigations into the collapse of the Carillion group, already mentioned, found that it made heavy use of the Government’s supply chain finance programme. MPs investigating the outsourcer’s demise said that the scheme allowed it to “prop up” its failing business model.
This is a major concern in the prudential management of the financial services sector in the UK. If accounting standards and methods do not accurately represent the fragility or strength of an institution, especially a financial institution, they severely compromise our efforts at prudential regulation.
A quite different prudential and market conduct risk created by accounting standards arises from the fact—again already mentioned—that while the UK’s accounting standards apply IFRS, the US maintains its own GAAP different standard. Are the UK Government pursuing negotiations with the US Administration to encourage the adoption of a common standard, perhaps one that accurately represents the risks present in financial institutions?
The issues raised by the noble Baroness, Lady Bowles, and the noble Lord, Lord Sikka, require urgent consideration, not just by the accounting profession but by Her Majesty’s Treasury and by the prudential regulators.
Earl Howe (Con)
My Lords, as we have heard, Amendments 74 and 77 concern accounting standards. I have listened carefully to what the noble Baroness, Lady Bowles, and other Members of the Committee have said. It is perhaps best to begin by making a key distinction: the objective of accounting numbers is to show a true and fair financial position of a company; the objective of regulatory capital numbers is to provide information to the regulators in meeting their supervisory objectives. These are different numbers used for different purposes.
Amendment 74 proposes a kind of conflation of those purposes by requiring UK banks to align their accounts prepared under international accounting standards with their regulatory capital equivalent where the regulatory capital number is lower. My noble friend Lady Noakes rightly made the point that I have just made: these accounting standards are international. It is in the UK’s interests to maintain convergence with international accounting standards—IFRS—set by the International Financial Reporting Standards Foundation. The IFRS bring consistency to financial statements and allow investors easily to compare the financial statements of companies across the world. It is therefore consistent with the Government’s aim of ensuring that the UK retains its reputation as a global hub for business for the UK to continue to adopt these standards.
The amendment would result in financial statements of UK banks not being prepared in accordance with those international accounting standards. UK banks wishing to maintain listings abroad would however still need to prepare a second set of financial statements. The UK prudential regime for banks is supported by detailed regulatory reporting. It is these reports and other data gathered from firms that are the basis for prudential regulation, and not financial statements and annual reports.
A subset of the information contained in the regulatory reporting is published in the form of what is referred to as Pillar 3 reports. These reports include details of the regulatory capital held by banks. Therefore, while Pillar 3 reports are not identical in form to financial statements prepared for accounting purposes, they already provide a significant amount of the information sought by this amendment.
Baroness Bowles of Berkhamsted (LD) [V]
My Lords, I thank all noble Lords for having taken part in this debate and for enabling me to find some way in a busy parliamentary schedule to enable airing of a few of the problems with IFRS. I regret that IFRS has not been picked for a study by a Select Committee; I have tried but it is a rather dry subject that gets few votes when set against competing topics.
I have to admit that Amendment 74 was not only probing but perhaps a little impetuous in trying to provoke some thought about what was actually going on. My main point is that accounting has made it very difficult to get a genuine view of what is true and fair. If anybody wants to look at the RBS preliminary hearings that went to the courts, it was said there that the law was not for experts but for ordinary people. The fact is that we have got to a stage where there is such a departure between accounting standards and what the normal person would understand that I seriously challenge whether they really do give a true and fair view.
Things that can be done with supply chain financing, as the noble Lord, Lord Eatwell, expressed, have undermined several significant businesses, yet still it is there and going on. I accept that one needs something like IFRS for international comparisons, but the UK is still the outlier in having copied a lot of the flaws of IFRS into the national accounting, so it appears again at the company level beneath. It is that which can therefore cause some of the crashes, whereas, in other countries, because they do not apply it at their national accounting standard level and to company-level accounts, they manage to escape.
Amendment 77 is not as impetuous, perhaps, as Amendment 74. Once upon a time the Bank of England used to jointly appoint the head of the FRC, so it had some say in it, but that now seems to have disappeared and it is left just to the Minister and BEIS. But I did not invent the bit that I pointed out about the economic analysis; that is what the endorsement board has to do to endorse IFRS and what is present in the International Accounting Standards and European Public Limited-Liability Company (Amendment Etc.) (EU Exit) Regulations 2019, one of the 100 or so SIs that I diligently scrutinised with other noble Lords. So I have not invented the test; a test is there and is going to be conducted by a subset of the FRC, a board established under the auspices of the FRC, or the ARGA, when we get round to doing it. Will it really be the right body for that economic interest test? As the noble Viscount, Lord Trenchard, explained, taking an opinion from the Bank of England would seem appropriate.
The Minister’s argument is that we should not rock the boat on anything. We can let the deceptions and failures keep on coming but, underlying this, if we do nothing and leave it with the accountants to do their fancy footwork on the figures, which might suit them but nobody else, we can record now that the Treasury did not go poking around to find out what was going on and has done nothing to help. For now, I beg leave to withdraw my amendment.
“Short selling review
(1) Within the period of six months beginning with the day on which this Act is passed, the Secretary of State must commission a review of legislation relating to short selling.(2) Following the conclusion of the review, the Secretary of State must lay a report before Parliament.”
Baroness McIntosh of Pickering (Con) [V]
My Lords, I am delighted to have this opportunity to speak to and move Amendment 78, and to thank my noble friend Lord Holmes of Richmond for his support and for co-signing the amendment.
Clause 40 deals with subordinate legislation made under retained direct EU legislation. This is a probing amendment to look at what I consider to be a timely review of the practice of short selling. The background to this is that short selling is regulated now by the Short Selling (Amendment) (EU Exit) Regulations 2018, based on the earlier EU regulation 236 from 2012, also amended by the Technical Standards (Short Selling Regulation) (EU Exit) Instrument 2019. Clearly, there are powers for the UK to prohibit or restrict short selling or limit transactions when the price of various instruments admitted to trading on a UK trading venue, which includes shares, sovereign and corporate bonds and ETFs, has fallen more than the appropriate percentage threshold from the previous day’s closing price. In exceptional market conditions, there are also powers under these regulations to address adverse events or developments that pose a serious threat to financial stability or market confidence in the UK.
The powers are set out and include extending the scope of the notification disclosure regime to include additional financial instruments admitted to trading on a UK trading venue and requiring lenders of financial instruments admitted to trading on a UK trading venue to notify any significant change in their fees. There are other powers as well.
Most recently in the UK, the Bank for International Settlements conducted a study suggesting that fund providers offered lower-quality paper to fill redemption markets, as reported in the Financial Times, and that it was felt and alleged that bond ETFs might have short-changed market-makers during the 2020 panic—as if there was not enough going on with the Covid-19 pandemic. It is obviously deeply worrying that this happened in 2020, as confirmed by the Bank for International Settlements. This is a good opportunity to revisit this, as this is not supposed to happen. Obviously, this is a timely moment to look at this, after the collapse and then the surge in the US of the GameStop share fiasco in January and February.
I take this opportunity to ask my noble friend whether he is convinced that an event such as GameStop would not happen in the UK and that we have robust regulations, as I have set out. I am slightly concerned that they have not been tested enough and I believe that we should revisit them. If the ETFs performed in the way that was alleged and concluded by the Bank for International Settlements in 2020, that was deeply unhelpful at a very difficult time. Therefore, does my noble friend agree that this would be a good opportunity for the Government to look at this and undertake to conduct a review to ensure that the regulations, as I set out this afternoon, are fit for purpose? Are they robust enough in terms of Covid, as we saw in March 2020 in the UK, to prevent something like GameStop happening here?
I realise that anybody making an investment is taking a risk, and that we are always told that share prices can go down as well as up, but this is a very modest amendment, ensuring that, within six months of the Bill being enacted and coming into force, the Secretary of State will commission a review of the legislation relating to short selling and, at the conclusion of the review, lay a report before Parliament. I personally have deep misgivings about short selling and question whether the regulations in place are sufficient. As we have left the European Union, and were told that the United Kingdom Government would take every opportunity to revisit those regulations that we have now adopted as part of UK law, it would be a good opportunity to review them within six months of the Bill’s enactment. It gives me great pleasure to move this amendment today and look forward to the Minister’s response. I beg to move.
Baroness Bowles of Berkhamsted (LD) [V]
My Lords, I was not sure where the debate on short selling would go. I am broadly satisfied with the present rules that prohibit naked short selling and require that a short seller has identified where they will obtain the shares when delivery is required. There is a little bit of wriggle room in the identifying, which was very hard fought for by the UK when the EU regulation was being negotiated. Some would like it more relaxed so that there is a looser understanding of how the shares will be found; others would like to ban short selling altogether. I am not convinced that any significant change is needed in that area but, having negotiated the current compromise, I am both biased and happy for someone else to gather the scars on their back.
As the noble Baroness said, there has been additional interest in short selling because of the developments around GameStop and AMC shares, with some retail investors deliberately seeking to put a short squeeze on to hedge funds with large short positions. The shares became heavily promoted on internet sites and social media, and no doubt there are individuals who made poor decisions about investing as a consequence. Eventually, brokers took steps to curtail retail access, and therefore activity, which stopped extreme movements, but that also calls into question rights of retail access and whether there will be discouragement of things such as commission-free retail trading.
In the UK—and, indeed, the EU—we do not have such large net short positions as tend to be found in the US. That may well be due in part to the more restrictive requirements on the identification of where one is going to get the shares from, and stricter disclosure requirements. Retail access is not so well developed here, either.
I do not know whether the Treasury Select Committee has taken any evidence on this—it seems taken up by the Gloster review—but the chair of ESMA appeared before the corresponding committee in the European Parliament on 23 February. In that appearance, there was a suggestion that other things around the subject may need looking at—such as market abuse and best execution, which would be under MiFID II—rather than short selling.
The FCA website has a six-line generic statement, put up on 29 January, about “recent share trading issues”, warning about potential loss of money, that losses are unlikely to be covered by the Financial Services Compensation Scheme, and that broking firms are not obliged to offer trading facilities to clients, which covers the point about withdrawal of service. It tweeted a similar warning.
Here I should probably draw attention to my specific interest as a director of the London Stock Exchange. I know that a close eye has been kept on the situation, looking at additional analysis, possible additional monitoring and scenarios that could arise within our markets, and having discussions with the FCA, but that is all work in progress.
A lot of people seem to consider short selling fundamentally evil, but it is really just like ordering a book from a bookseller, paying for it, and getting it later when the seller has purchased it from the publisher. That is okay if you know there is a book and a publisher and you have not already been told that it is sold out. It is not okay when there is no book, and so on. That is the distinction between naked short selling, when you do not know whether the book is there, and having identified that you can actually get your hands on the book to fulfil the order. Broadly speaking, I am not sure that a huge overhaul of short selling needs to be looked at. If all these things are to be looked at, it probably needs to go beyond what is in the short selling regulation and look at how execution has to happen as well.
Lord Holmes of Richmond (Con) [V]
My Lords, it is a pleasure to take part in day five of Committee of the Financial Services Bill. In doing so, I declare my interests as set out in the register.
I was keen to speak to the amendment in the name of my noble friend Lady McIntosh of Pickering—and have put my name to it—mainly because of the reasons set out by my noble friend and the noble Baroness, Lady Bowles. That is, given the position we are now in with financial services, it seems opportune to review this practice. In saying that, I agree with the noble Baroness, Lady Bowles, that it makes sense to see this as part of a wider review of a number of other market practices. Indeed, it reflects an earlier amendment that I put forward on day one on the opportune moment to review all our financial services regulations and regulators’ rules, given that our situation is so fundamentally different from what it was a matter of weeks ago.
On short selling, it is important to understand the difference between different markets, as the noble Baroness, Lady Bowles, eloquently set out. It is important for that to be understood, not least as a number of people’s understanding of short selling will have been informed by the earlier situation with GameStop on the exchange in the United States and the excellent film “The Big Short”—excellent unless you happen to be on the wrong end of that practice. However, it is different in different jurisdictions. Which jurisdictions would the Minister look at in considering potential better practices around the world? Would she also see this as a positive, opportune step to take as part of a wider review of all financial services regulations and the rules of our regulators?
Baroness Noakes (Con)
My Lords, I support the call of my noble friend Lady McIntosh of Pickering for a review of short-selling legislation, although I start from a very different position to her. As she explained, our short-selling rules were acquired via the EU, which is how they found their way on to our statute book. I believe that all EU-derived legislation should be reviewed at some stage; I am not sure this is the most pressing area, but it should certainly be reviewed.
When the EU introduced its short-selling rules in 2012, we had to follow, but it is far from clear that, left to our own devices, the UK would have introduced such rules. The FCA has been clear that the existing powers to trigger a ban on short selling would not be exercised lightly and the bar must be set very high. That must call into question whether we actually need the powers. The trouble with regulators is that, once they have powers, they never give them up voluntarily, even if they can never envisage when they would be used. A review would allow us to look at this again. We ought not to allow regulators to keep draconian powers to intervene in markets without very strong justification.
Against that background, I was particularly disappointed to see that the EU’s temporary—though extended several times—reduction of the threshold for notification of short selling, which expired when we left the EU, was almost immediately reinstated into UK law. That is not a good direction of travel.
There is nothing intrinsically wrong with short selling. It can provide liquidity to markets, improve bid-ask spreads and assist in price discovery; it also offers a route to hedging long-only exposures. There are, of course, downsides, including the potential for unlimited losses, so the risks have to be well understood and managed. We recently saw in the US that some hedge funds got their fingers burned on short selling GameStop shares due to action taken by amateur investors; but that merely highlights the need for sound risk management—it does not speak to short-selling itself being a problem or suggest that powers are needed for market intervention.
Lord Sharpe of Epsom (Con)
My Lords, I refer to my interests in the register. It is always a pleasure to follow the noble Baroness, Lady Noakes; it is also something of a challenge as she speaks so authoritatively on matters such as these and I often find myself agreeing with her.
The noble Baroness, Lady McIntosh, spoke compellingly in her introduction to this amendment. She made the point that she has misgivings about the practice. Clearly, for a practice that dates back to the first days of stock markets, short selling retains its ability to attract controversy. Indeed, a short seller was accused of manipulating the share price of the Dutch East India Company in Amsterdam as long ago as 1609. The noble Baroness, Lady Bowles, suggested that it is sometimes regarded as an evil practice, so I felt that it deserved a defender today.
The goals and effects of short selling are often misunderstood and, when markets enter a downturn, many are quick to call for short selling to be banned. While such bans are unfortunate, they have left us with a wealth of data on the effects of short selling and how the practice contributes to the proper functioning of markets. The practice of selling a stock short is always the same but the intention behind it varies considerably. At its most common and passive, short selling is a conservative investment technique used to hedge against risk, as the noble Baroness, Lady Noakes, has just highlighted, but obviously at the cost of forgoing some returns. On the point made by the noble Baroness, Lady McIntosh, about the volatile first quarter of 2020, the Alternative Investment Management Association, which represents 2,000 corporate members in 60 countries, reported that funds which had hedged in this way outperformed the broader market by 20%.
To be sold short, a stock has to be borrowed, and it will usually be borrowed from an asset owner for a fee. The fee helps the returns to the holders of that stock—in practice, anyone who participates in a long-term equity fund and, therefore, probably everybody involved in this debate. The fact of selling the stock helps create valuable liquidity, which is often essential to ensure the smooth functioning particularly of smaller markets, but it also works in reverse during periods of market turbulence. In practice, short sellers are often the buyers of last resort when markets are under pressure; they take profits in their short positions and therefore help to provide stability to markets.
The more controversial end of the short-selling spectrum is that populated by activist short sellers. They are often characterised as predators who create and exploit misery, but that is simply not the case. These investors act as the canaries in the coal mine. Short selling does not directly undermine the health of a company any more than buying its shares improves its fundamentals. Companies are not deprived of funds when investors sell shares, nor do they become financially stronger when investors buy shares in public markets. Short sellers cannot send a good business under. What they can do is expose bad business models, bad management, dodgy accounting, fraud and other bad behaviour. At a more mundane level, they can expose unjustifiable valuations.
There are plenty of recent examples but one will suffice as the regulatory reaction was instructive; here I am very grateful to Jack Inglis, the CEO of the Alternative Investment Management Association, who provided me with some detailed facts. In 2019, Wirecard in Germany famously went bust. It was at the time a member of the main German index, the DAX 30. The first queries into the company’s accounting practices date back to 2014, when short positions began to be initiated. However, when the pressure mounted on the company to explain itself, the German regulator instead went after journalists at the Financial Times who had published a deep dive into the company—and, of course, the short sellers. They filed a criminal complaint against them, accusing them of market manipulation, and, in February 2019, initiated a two-month ban on short selling the shares, citing the need to curb
“a serious threat to market confidence”.
As we all know, the company subsequently went bust, the subject of a multiyear fraud involving €1.9 billion going missing and the CEO being arrested, among other things.
Since then, Germany has become much more circumspect about joining other European states in banning the practice. Indeed, the regulator’s president apologised and paid tribute to those
“journalists, analysts or yes, let it be short sellers, who have been digging out inconsistencies persistently and rigorously.”
In saying this, he was following a long historical tradition—such bans are inevitably repealed.
Viscount Trenchard (Con) [V]
My Lords, Amendment 78, in the names of my noble friends Lady McIntosh of Pickering and Lord Holmes of Richmond, seeks to commission a review of legislation relating to short selling. It is a pleasure to follow my noble friends Lady Noakes and Lord Sharpe of Epsom; I must say, I agree with everything they said.
From time to time in the UK and in other countries, financial regulators have sought to restrict short selling, as the British Government did to stabilise the market after the bursting of the South Sea bubble in 1720. While short selling has been blamed for market crashes and is considered unethical by some as it is a bet against positive growth, many economists and financial practitioners now recognise short selling as a key component of a well-functioning and efficient market, providing liquidity to buyers and promoting a greater degree of price discovery.
I note that, under the statutory instrument transposing the European regulation into UK law, the minimum threshold for the notification of short positions has been set permanently at 0.1% of the issued share capital of a listed company, whereas in the EU, the threshold will revert to the less onerous 0.2% of issued share capital on 19 March. I consider both thresholds unnecessarily restrictive and wonder why the Government have adopted a rule that will be even more cumbersome and bureaucratic than the EU’s, when the Prime Minister and the Governor of the Bank of England have said that we will get rid of red tape. The EU will relax its red tape on short selling reporting on 19 March but we will not. That is disappointing, is it not? What does my noble friend the Minister have to say about that?
In any case, the competitiveness of the market would be best served by removing the current restrictions on short selling. However, I do not think it would be helpful to place in the Bill this kind of requirement, which will add to uncertainty over the freedom to sell short in future and send the wrong message about the kind of regulatory framework the Government intend to adopt.
Baroness Kramer (LD)
My Lords, once again, I am moving outside of any area where I can claim expertise. Essentially, I have no problem with short selling in the right place and time and under the right regulations, but I am concerned that, in the current environment, any move to look at the regulations again would listen more closely to the noble Lord, Lord Sharpe, the noble Viscount, Lord Trenchard, and the noble Baroness, Lady Noakes—in other words, look for opportunities to reduce the restrictions on short selling.
We have had a number of exchanges on short selling in the Chamber. The noble Lord, Lord Leigh of Hurley, is particularly vocal, and I do not think that I represent him unfairly by saying that he believes that the restrictions on short selling that were set in place in 2012, which severely limited naked short selling on AIM, are too onerous and that relaxation would be a good thing. He would argue for bringing more liquidity into AIM. I remember that campaign, which was strong and led by companies that were either listed on AIM or wished to be so but that were concerned about becoming the target of speculators who were not interested in supporting sustainable growth but were very interested in bubbles. Of course, this is a risk that goes alongside naked short selling in particular.
I suspect that this issue will be reviewed; I am sure my noble friend Lady Bowles is right that it should be done in a much wider context—I think the noble Lord, Lord Holmes, agreed with that. But I would not work on the assumption that this comes from a concern that rules need to be tightened and safeguards increased; this will very quickly become a process of trying to see whether we can return to the old animal spirits and largely casino-like speculation that once fired London so powerfully and which many of us think largely contributed to the financial crash in 2007-8. While I understand the concerns of the City of London that it needs to make itself more of an exception in order to gather increasing amounts of business, I am rather disturbed if that mode of exception is to allow a great deal more risk to be taken in ways that then impact on the real economy.
Lord Eatwell (Lab)
My Lords, this request for a review of short selling is essentially a request to focus on just one of the aspects of the financial markets today that may contribute to enhanced instability in times of stress. It is not just short selling that involves the sale of borrowed assets—this is what the repo market, for example, is all about. The repo market was central to the dangerously short-term funding of the banking sector in the run-up to the financial crisis of 2007-9.
Of course, short selling is prominent because it is a factor in falling markets, when money is being lost, as opposed to similar practices in rising market bubbles, when money is being made. Of course, the short sellers sometimes get their comeuppance, as has been mentioned by several noble Lords in reference to the case of GameStop. The fundamental question is not whether short selling is a process that can be abused—of course it can. What is important is whether the very existence of the practice contributes to market instability and risk or, as has also been argued, to price discovery and greater liquidity.
Those questions may be asked of many practices in our financial markets today, and, at a time when the UK is rethinking its economic and financial future after leaving the European Union, perhaps the time is right for such a wider review of permitted practices. This could begin with consideration of the impact of trading in borrowed assets—as well as, of course, naked transactions—in forward markets.
Since the liberalising years of the 1970s and 1980s, a wide range of these market practices have developed, with potentially serious destabilising consequences—indeed, we have seen these. As such, does the Minister agree with the many noble Lords who have argued that it is time to stand back and think through whether matters have gone too far, are just right or have not gone far enough? Perhaps such a review is too specific for the regulatory framework review that is going on at the moment because, after all, that is about the framework. However, it is necessary to consider, from time to time, practices that will inevitably have downsides but may also have upsides. That sort of consideration should not be delayed at a time when market regulation is changing significantly, with the exit from the European Union.
Baroness Penn (Con)
My Lords, it is important to stress, as a number of noble Lords have done, that short selling is a legitimate investment technique that can contribute to orderly and open markets supporting many consumers. Taking short and long positions can ensure that investors are able to manage risk and volatility in their portfolio, particularly during uncertain times; for example, if a firm has purchased a large number of shares, that firm might want to short some of those shares if they have a volatile price.
As my noble friend Lady McIntosh of Pickering ably set out, the UK’s regulatory regime for short selling is predominantly set out in the short selling regulations, which were introduced in 2012 to regulate short selling practices while safeguarding companies and the financial system. Among other things, it requires persons to notify the FCA of the size of their short positions in shares traded on a UK trading venue. It also gives the FCA various powers to intervene in response to exceptional circumstances that pose a serious threat to financial stability or market confidence in the UK. These include requiring the notification or disclosure of short positions, as well as restricting short selling to periods of up to three months. Furthermore, the FCA can temporarily prohibit or restrict short selling when the price has fallen significantly during a single trading day relative to the closing price of that instrument on the previous trading day. This regime is working as intended, providing the necessary safeguards to allow the operation of a fair and effective market. The Government continue to work closely with the regulators and market participants to monitor the effectiveness of the entire regulatory regime to ensure that legislation continues to be fit for purpose and delivers on its objectives, in particular to support economic growth and maintain financial stability.
As my noble friend Lady McIntosh of Pickering noted on the example of GameStop, the UK short selling regime was not breached because it does not apply to shares admitted to trading on US trading venues. Furthermore, the regime that I have just set out that applies to short selling would mean that in such a scenario in the UK the FCA would have been able to identify short positions building up and would have been able effectively to engage with the firms holding the short positions in that case.
I am not sure that I recognise the characterisation of the Bank for International Settlements’ report set out by my noble friend Lady McIntosh of Pickering, but I will happily write to her on that matter.
A number of noble Lords have spoken, from different perspectives, in favour of a review of short selling. In response to a number of direct questions about what jurisdictions such a review would look at or whether it would look at relaxing or shoring up such regulations, at this point the Government do not see this issue as the most pressing area of financial services regulation to look at. We see no need to conduct a review of this legislation at this time, so I ask my noble friend Lady McIntosh to withdraw her amendment.
Baroness McIntosh of Pickering (Con) [V]
I am grateful to the Minister and to all those who have contributed. I recognise the role that the noble Baroness, Lady Bowles, played in the adoption of the current EU regulation. I am grateful to my noble friend and others who set out the arguments on one side or the other. I have a great deal of sympathy with my noble friend Lord Holmes of Richmond and his earlier amendment calling for a review of all financial regulations and regulators’ rules, and I note that my noble friend Lady Penn does not see the need for this at present.
This is something that I will personally continue to monitor. I have no doubt that my noble friend Lady Noakes, who speaks with great authority and expertise on these issues, and my noble friends Lord Sharpe and Lord Trenchard would prefer that many of the regulations would just go away, but I am rather pleased that they are not going away for the moment. My concerns have been addressed to a great extent. I will continue to support my noble friend Lord Holmes’s call for a further review of all these practices. I am grateful to have had the opportunity to debate these issues and I beg leave to withdraw the amendment at this stage.
Lord Tunnicliffe
“FCA duty to regulate buy now, pay later firms
(1) Within 3 months of the day on which this Act is passed, the Secretary of State must lay before Parliament regulations which confer a duty on the FCA to regulate—(a) buy now, pay later credit services, and(b) other lending services that have non-interest-bearing elements.(2) The duty conferred in regulations under subsection (1) must take effect no later than 6 April 2022.(3) Regulations under this section are subject to the affirmative procedure.”Member’s explanatory statement
This new Clause would require the Chancellor to confer responsibility for regulation of the non-interest-bearing elements of buy-now-pay-later lending to the FCA, with such a duty to come into force no later than the beginning of the 2022/23 tax year.
Lord Tunnicliffe (Lab) [V]
My Lords, many colleagues will recognise Amendment 79 as a response to the recent publication of the Woolard Review into change and innovation in the unsecured credit market.
The Government have been on something of a journey on buy now, pay later products. In December 2020, the Economic Secretary resisted a similar amendment tabled by long-standing personal debt campaigner and MP for Walthamstow Stella Creasy. He said that while the Government were aware of potential risks resulting from a boom in the use of buy now, pay later products,
“we are yet to see substantive evidence of widespread consumer harm”,—[Official Report, Commons, Financial Services Bill Committee, 3/12/20; col. 398.]
and it would therefore be inappropriate to act.
To be fair to the Government, they did not want to pre-empt the findings of the Woolard Review, which was published a month ago and is a very strong piece of work. It warned of “significant potential customer harm” if there was not a role for the FCA. By bringing certain unregulated credit products under the FCA’s watchful eye, we could see requirements around affordability checks, as well as the introduction of proper protocols for individuals who find themselves struggling to repay the loans they have taken out.
The review also stressed the importance of ensuring a well-functioning debt advice sector, and the need for both government and regulators to take a more holistic approach to a range of issues around personal finance and debt. I know that this piqued the interest of my noble friend Lord Stevenson of Balmacara, who has already dealt with the concept of financial well-being and will turn his attention to Victorian log-book loans shortly. We support his endeavours and hope that at the very least the Government will commit to a review of the antiquated legislation whose repeal was recommended by the Law Commission several years ago.
We strongly welcome the Government’s acceptance of the Woolard Review’s recommendations, as well as their commitment to implement the necessary changes as soon as practicable. It is in some ways a curious change of position, as the review’s discussion of theoretical risks does not appear to meet the evidence test set by the Treasury just three months ago. However, this is a policy change that we can support and, luckily for the Minister, this legislation provides a means of delivering on the Government’s promises.
No doubt we will hear later that this is a very complicated matter and the Treasury needs time to think through the consequences—intended and unintended. Mr Glen hinted at this back in December, talking about the need for the Government to “assess the options” and to weigh up whether they “would be proportionate” in responding to potential harm.
One worry previously cited by the Government related to the potential restricting of flexible payment options for such things as gym memberships or sport season tickets. Nobody would wish to restrict access to such options, in part because they have shown themselves over many years to be low risk. We therefore welcome the distinction made in the review, which talks of “certain new credit products” being brought under the FCA. Our Amendment 79 is more wide-ranging but is, as so often in Committee, a vehicle for debate.
Another worry of those who oppose regulation relates to the potential stifling of innovation in the sector. Of course we welcome new entrants and new services, but on the basis that they operate in a responsible manner. These products are booming in part because of Covid-19 and changes to peoples’ shopping habits. Buy now, pay later grew exponentially during 2020, with an estimated 5 million people using products from firms such as Klarna and Clearpay. The value of these transactions is in the billions, and that figure is likely to grow.
We do not oppose Klarna, Clearpay or other providers of these services. They offer a product which many shoppers wish to avail themselves of, and I am confident that such companies will continue to grow once subject to FCA regulation. All we are asking is that these players, as with others across the financial services sector, are subject to the correct balance of rights and responsibilities, including duties to those who may have problems with debt.
I have no doubt that the brilliant minds at the Treasury and the FCA can come up with a solution, and do so while the Bill remains under consideration. Our amendment mentions the 2022-23 tax year, and if we are to learn lessons from the past, including the failure to properly regulate payday lenders, surely we must keep this target at the forefront of our minds.
I know from previous discussions with the Minister and officials that they are working very hard on this. Therefore, I am hopeful of seeing a government text on Report, if not establishing the detail then committing to the principle and providing the powers that will be needed to implement changes in the coming months.
Other noble Lords with amendments in this group will be very keen to make their speeches, so I will not detain the Committee for too much longer. However, I want to voice support for the other amendments, including that from my noble friend Lord Stevenson referred to earlier in my remarks. I also look forward to the Minister’s response to the amendment on access to bank accounts and cash. Sadly, we continue to see the withdrawal of bank branches and cash machines from towns and villages across the country, suggesting that previous initiatives have not had the desired effects. I beg to move.
Lord Stevenson of Balmacara (Lab) [V]
My Lords, I start by expressing support for Amendment 79, introduced by my noble friend Lord Tunnicliffe. As the Woolard Review pointed out, the buy now, pay later issue is a hotspot at the moment and in need of urgent action. My noble friend’s amendment would require that the non-interest-bearing elements of lending under that regime should be regulated by the FCA, and we support that. I thank the Economic Secretary for the time given to us recently on this issue and I appreciate that this is not easy to regulate for. However, as my noble friend pointed out, there is time to get this right by the next financial year.
At heart, this looks like a consumer-friendly initiative—something we could all support. Credit-financed purchases have been with us for a long time, and there are some examples of activity in this field that could be damaged if the regulations to be brought forward are too aggressive. My noble friend mentioned employees, advances of salary and season tickets, and similar arrangements. However, the real profit motive which drives these schemes lies in the small print. Like so many similar schemes, these buy now, pay later schemes put pressure on customers to make unnecessary purchases, do not make effective credit checks, and there is evidence that they can cause mental health difficulties for those who sign up. I am sure that it would be possible to get this side of things properly regulated. However, what is less easy to regulate—although in fact it is far more damaging to hard-pressed consumers—are the penalties that get applied to missed payments and the excess interest that is loaded when payments are missed. In addition, compulsory insurance is often levied against default, links to loyalty follow-up purchases are imposed, and no real comparator APRs are somewhere available for those who wish to shop around before purchasing.
The focus placed on the FCA’s duty to promote competition rather than on a duty of care is an issue in play here. When the FCA was asked to regulate payday lenders, this House made it clear that its concern was the usurious rates of interest being charged, often many thousands of percentage points measured by APR. The solution favoured by the House was banning the products, which was why many of us were mystified by the FCA’s proposed solution of reducing the number of players in this market to a smaller number of well-capitalised companies—which indeed got the interest rates down, but only to around 1,000% APR, so consumers were left facing usurious rates. I hope the Minister will be able to reassure us that the approach that the Government are thinking of taking to buy now, pay later will not fall into the same trap as the payday lender regulations. The aim is consumer care and stamping out egregious behaviour, and not just promoting competition by allowing companies to rip off vulnerable consumers.
My Amendment 101, which I am grateful to the noble Lord, Lord Holmes of Richmond, for signing, is also about high-cost credit. As I said at Second Reading, it is high time we repealed the Victorian bills of sale legislation, which permits an egregious area of high-cost credit to continue and flourish outwith current consumer protection rules. Harm is being done.
Bills of sale are an early form of mortgage, aimed at goods and chattels and not property, which allow individuals to use goods they already own as security for loans while retaining possession of them. The use of bills of sale grew from fewer than 3,000 cases in 2001 to more than 30,000 in 2016. The number has dropped recently, but it is probably still in the order of 15,000 a year and it is going up. Ironically, bills of sale were legislated for before cars were invented, but they are used today mainly for what are called log-book loans, where a borrower raises cash on the security of his or her vehicle. Borrowers may continue to use their vehicle while they keep up the repayments, but if they default, the vehicle can be repossessed, sometimes from outside their front door, without the protections that apply to hire-purchase transactions or other consumer credit. It is also difficult to discover, when a car is being sold, whether it has a log-book loan attached. The register is kept by the High Court and it is not easily searchable. The new owner has no protection against losing the car if that loan has been defaulted on by the previous owner. This is just not fair.
Bills of sale are currently governed by two Victorian statutes, the Bills of Sale Act 1878 and the amendment Act of 1882—the statute was apparently so obscure in 1878 that it had to be re-regulated for in 1882. The legislation is described by the Law Commission as “archaic” and “wholly unsuited” to the 21st century. The current law creates hardship for borrowers and for private purchasers. The Law Commission argues that it imposes unnecessary burdens on lenders, and the lack of a proper chattels mortgage system restricts access to finance for unincorporated businesses and high-net worth individuals.
The great majority of bills of sale are taken out by borrowers who have difficulty in accessing other forms of credit. The current APR in a recent advert that I saw was 450%. The Law Commission says that the statutory form of a bill of sale as set out in the 1882 Act, which has to be followed absolutely to the letter, confuses borrowers rather than helps them to understand the consequences. It is clearly an area that should be cleaned up. A simple way, which is what I propose in my amendment, would be to repeal the Acts. While I accept that some people currently using log-book loans would be adversely affected by such a radical change, the greater harm lies in continuing the status quo.
I currently have a Private Member’s Bill on this issue, drafted by the Law Commission, which includes provision also for a goods mortgages scheme. Perhaps a way forward on this would be for the Government to agree to take on all or part of this Bill in the next Session using the special scheme for approving uncontentious Law Commission Bills. I would be happy to meet the Minister on this issue, if he could find the time, to see whether this would turn out to be a way forward.
Lord Holmes of Richmond (Con) [V]
My Lords, it is a pleasure to speak to this group of amendments. In doing so, I declare my interests as set out in the register. It is also a pleasure to follow the noble Lord, Lord Stevenson. Before I speak to Amendments 127, 131 and 136C in my name, I shall speak to Amendment 101, so eloquently introduced by the noble Lord, Lord Stevenson of Balmacara; Amendment 135, in the name of my noble friend Lord Leigh of Hurley, who is speaking after me so I shall not eat too much of his afternoon tea; and, briefly, Amendment 136F.
Lord Leigh of Hurley (Con) [V]
My Lords, I shall speak on Amendment 135 in my name, although I find myself in agreement, as is so frequently the case, with the noble Lords, Lord Tunnicliffe and Lord Stevenson of Balmacara, on their amendments, and, of course, with my noble friend Lord Holmes of Richmond, who very kindly served as my warm-up act for my amendment. With such unanimity, let me explain what this is about.
At Second Reading, the Minister might have read that I raised two issues of concern. The first was that FOS and the FCA had been overzealous and overreached themselves. As a result, they had destroyed a segment of the financial services industry, namely the SIPP industry. I was disappointed that there did not seem to be anything in this Bill dealing with that, but I am pleased to say that I have had constructive meetings with the City Minister, John Glen, and representatives of the FCA and FOS and there are further meetings ahead. I accept that this matter will not be in this Bill, but perhaps it will be dealt with at a later stage elsewhere.
The second matter that I raised was about a situation in which FOS and the FCA were not doing enough to protect consumer interests, and I had an idea that might enable them so to do. As the Minister here today was not at Second Reading, I will just remind him of the reason why I have raised this. In the summer, I received a letter in the post with a credit card in my name, which was very nice except that I had not applied for it. It arrived unsolicited. I did not think too much of it, but a few days later—in those halcyon days of last summer when one could go outdoors and talk to one’s neighbours—a neighbour mentioned to me that they had seen some slightly unsavoury-looking individual rummaging through my letterbox at the front gate. I managed to put two and two together and worked out what had happened. Someone had found my home address and date of birth—which is not difficult, I am sorry to say, because they are available at Companies House; I have since changed that, but it is generally true. Then clearly he applied for a credit card in my name and was rummaging around in the letterbox to find it and to find the PIN, which followed in the post a few days later. It was clearly an unsatisfactory situation.
I contacted people in the company concerned, which I shall not name on this occasion, and complained that it was odd that they had sent me a credit card that I had not requested. I invited them to explain why and perhaps to change their procedures. They replied that they were sorry to hear it, but as I had not lost any money, there was nothing that they could do, or chose to do. Eventually, after a few letters and emails, they sent me a form to use to complain to FOS. I could not resist, of course, so I put a complaint into FOS—and it took FOS six months to reply to the complaint. After six months, a very well-crafted letter arrived from FOS, explaining to me that it could not help me because I was not actually a customer of the credit card company concerned. I was a potential customer of the credit card company concerned, and under the FCA handbook—the FCA instructs FOS—it has no power to deal with situations in respect of potential customers.
There were audible gasps of horror at Second Reading when I explained the situation, and my noble friend Lord Agnew agreed to write to me because he, too, was surprised. He wrote to me on 9 February and said:
“As you set out in your speech, the FCA is responsible for setting the rules for what complaints the FOS are able to consider. These rules do not allow FOS to consider a complaint from someone who is not a customer or potential customer of a firm. Extending eligibility to make a complaint to the FOS about a firm that they are not a customer or a potential customer of would be a very significant expansion of the FOS’s remit, which could result in delays to other complaints being resolved. However, the FOS are able to consider complaints from people who are being pursued for a debt that is not theirs following an identity theft. Therefore, had the attempted identity theft you experienced resulted in losses, then the FOS would have been able to consider a complaint from you.”
Lord Naseby (Con) [V]
My Lords, I am most grateful to the noble Lord, Lord Tunnicliffe, for putting down Amendment 79; I will address that first and then move on to Amendment 93.
I spoke earlier about the difference between home credit companies and payday firms, so I shall not go down that route again. Buy now, pay later reminds me of the old days of hire purchase and some of the challenges that arose then. In many ways, this is almost equivalent to gambling: it plays on people’s weaknesses, who then build up a cycle of debt, as so many noble Lords have said—and lingering in the shadows, ready to swoop, are the claims management companies. Frankly, I do not see why, in this scenario that we all know is happening and will get worse, not least with the huge temptation that will come after furlough is lifted, we cannot act earlier than the next financial year. I do not know the answer to this, but I begin to wonder whether all these payday loans are registered. If they are not, something should certainly be done about that. Finally in this area, we need to ensure that the FCA and the Financial Ombudsman Service are really watchful of the action of the claims management companies when it gets to that state.
Turning to Amendment 93 on access to cash, I thank my friend the noble Baroness, Lady Kramer. As has already been said, 1.3 million people have no access to a bank account. Cash is vital, particularly to the elderly in our society. Covid has made the whole thing even more difficult; the impression has been left that those who carry any notes in their wallet could be carrying Covid. It took some weeks for Her Majesty’s Government to put out clear statements that that cannot happen—it cannot transmit Covid; nevertheless, the rumour was out there and has stuck. The problem then comes down to the many outlets with a sign up in the door or on the cash till basically saying “Cards only”. Indeed, our own refreshment department is card only. The question in my mind is whether it is legal to trade and offer card only. I would have thought the very fact of being given a licence to trade ought to mean they can trade but must accept legal tender in whatever form it is offered.
The Post Office provides a really good service, and I pay full tribute to what it has done in these months of turmoil that we have faced. However, from the little work that I have done, I understand that the people behind the cash machines—those promoting them and the companies involved—state that they are becoming increasingly unviable. If that is the situation, it is very worrying, and I hope that Her Majesty’s Government will take this very seriously and make sure that, one way or another, cash machines are still available to the more than 1.3 million people who do not have bank accounts.
Baroness McIntosh of Pickering (Con) [V]
My Lords, this group of amendments has an underlying theme of identifying the need for greater consumer protection in this area. I support the noble Lords, Lord Tunnicliffe and Lord Eatwell, in the aims of the much-needed—it would appear—Amendment 79. If he is minded to say that there is no need for such an amendment, could the Minister, in responding to this debate, point to the consumer protection regulations for those using buy now, pay later services? Many of us have seen how the level of personal and household indebtedness has greatly increased due to the lack of regulation in the area identified by Amendment 79.
I will turn to Amendment 101 before coming back to the others. I entirely support the thrust of this amendment in the name of the noble Lord, Lord Stevenson of Balmacara, supported by my noble friend Lord Holmes of Richmond. It seems extraordinary that when consumer protections apply to hire purchase of a vehicle, they do not apply to the circumstances that have been set out and so eloquently identified by the noble Lord, Lord Stevenson, so the time has come for these two Victorian statutes to be replaced. I would like the Minister to give a very good reason why this could not happen and why we cannot simply rely on hire purchase schemes, which give greater protections to the owner and the existing user of a vehicle, for this form of purchase.
Amendments 92 and 93 from the noble Baroness, Lady Kramer and Amendment 136C from my noble friend Lord Holmes identify the need for access to cash. I find cashless societies highly regrettable, particularly for elderly and other vulnerable people; I know there are some in Europe; Sweden is well down this path and Denmark is going down it. On continuing access to cash, the noble Baroness, Lady Kramer, has set out, and my noble friend Lord Holmes set out in his Amendment 136C, why it is extremely important to have proper protections in these areas.
My noble friend Lord Holmes pointed out the role of cash in Covid and why it goes to the heart of financial inclusion. Without wishing to put words in his mouth, I will take his thoughts one step further: I am deeply concerned that the Government propose that the amount available in a contactless transaction will imminently be increased to a maximum of £100. This will possibly enable many people to lose control of their finances, and it will open the door to greater fraud, even where a debit or credit card has not left your possession.
I have been the victim of such fraud. I am delighted to say that the credit card company I was with at the time reimbursed me almost immediately for the loss. What that means is that we are all paying for that loss as credit card or debit card users. The existing limit of £45 is right at the moment; I would hesitate to increase it to £100. I do not know whether there is a bottomless pit for endless frauds or what it means if the limit goes up to £100 on a contactless transaction. Are there limitless reserves? Who pays for the fraud in this regard?
In Amendment 136F, the noble Baroness, Lady Meacher, has identified an area that is timely for review: the regulation of bailiffs and bailiff firms for the purpose of taking control of goods. I would be delighted to hear from the Minister that, even if the Government are not minded to accept this amendment, he will come forward with similar provisions as set out therein and recognise that there is a need for this to take place.
On Amendment 135 in the name of my noble friend Lord Leigh, I think all of us say, “There but for the grace of God go I”. Identity theft is a compelling crime. He set out some modest requirements that the Government would do well to follow.
I find that the amendments in this group have an underlying theme of the need for greater consumer protection. Although they are disparate in what they seek to achieve, each of them has merits to commend it. I very much look forward to hearing the Minister’s response to the excellent case that has been made for each amendment in this group.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, it is always a pleasure to follow the noble Baroness, Lady McIntosh of Pickering.
I wish to speak in support of Amendment 79 in the names of the noble Lords, Lord Eatwell and Lord Tunnicliffe. It seeks to protect people from buy now, pay later firms that, in many instances, financially abuse people. It is important that people who find themselves in this position are financially protected. In many ways, the amendments in this group seek to do what the noble Baroness said: they are all about consumer protection.
In his introduction, the noble Lord, Lord Tunnicliffe, referred to the Woolard review, part of which clearly states the need for customer harm to be minimised and to come under the purview of the Financial Conduct Authority. From doing some background reading, I thought I learned that the Government were receptive to the review’s findings. In this regard, I wonder whether the Government, through the Minister, will bring forward on Report amendments to deal with this issue if they are not prepared to accept Amendment 79 today. However, it may be that they will accept it in view of their acceptance of the Woolard review.
At Second Reading, I highlighted this area and asked whether the Government would bring forward in Committee amendments to ensure that buy now, pay later credit services are brought into the scope of the Financial Conduct Authority to protect people from spending more than they can afford. Indeed, many people in this net take out further debt to repay initial credit, then end up with their debt spiralling out of control.
Baroness Kramer (LD)
My Lords, I read all the amendments in this group, and I found myself in support of every one of them. It is an excellent group. We all realise now that Amendment 136F, tabled by the noble Baroness, Lady Meacher, is in the wrong group, which I suspect is why she is not speaking on this group under the heading that I loosely call offences.
Picking up on that theme, I say to the noble Lord, Lord Leigh of Hurley, that he was the victim of an attempted fraud. It is astonishing that action did not follow. When we discuss that group of offences, one of my underlying concerns is about the lack of resources to pursue offences of any kind within the financial services spectrum, so I suspect that that is probably where the resistance has been coming from. It is an area that we need to resource properly, and we need to make sure that when a red flag is raised by an experience such as his there is follow-up, knowing that that will have been one of many attempts to defraud and that some of them will have succeeded. I hope that the Government will look at resourcing.
When I look at quite a number of the amendments in this group, whether on buy now, pay later, bills of sale or mortgage prisoners—which I think we will deal with in more detail later—it strikes me that all of them could have been headed off at the pass as problems if we had had an underlying duty of care. That takes me back to the first group of amendments that we dealt with, because with that in place we would not have had a regulator hanging back to see what the competitive implications were, whether or not various tests were reached and so on. It would have shaped very early the framework within which these activities sat. It really is a very strong argument for that duty of care.
On the excellent Amendment 79, I understand, following Chris Woolard’s report, that we are to expect action. The Woolard report raises the issues in detail; I will not repeat them here today but I will say this: if the FCA does nothing more than introduce an affordability test, which is how it tried to manage the payday lenders, we can guarantee that this House will intervene. We will expect stronger action than that, to make sure this problem is grasped—and not allowed to encourage people to fall into debt which frankly they cannot handle—and to put a proper framework around what is essentially a form of lending. I note in that context that Klarna is described today as the most valuable new start-up in Europe; its rate of growth and the appetite for buy now, pay later should set alarm bells ringing.
I thank the noble Baroness, Lady McIntosh, for supporting my Amendment 92. It is a probing amendment that deals with a crucial aspect of financial inclusion—I find echoes of this in some of the words of the noble Lord, Lord Holmes. The inadequacy of basic bank accounts and the reluctance of many of the banks that offer them to engage with the needs of basic bank account customers is an underlying problem. It certainly means that basic bank accounts do not lead to appropriate vehicles for people in the most disadvantaged end to borrow or save, or to engage much more broadly with financial service products. In this day and age, that is a serious issue.
The situation is better today than it was a few years ago; I remember listening to high-street banks who would encourage those coming in to open a basic bank account to go down the street to Nationwide, where they would receive a friendlier reception. Basic bank accounts were regarded just as cost; this was not only inappropriate but meant that those who were welcoming ended up with the greatest share of the burden. I have always taken the view that trying to make an institution provide a service to a customer that they do not want will mean a failed product. We have about 7.5 million people with basic bank accounts and some 1.2 million people completely unbanked. We have to grasp this nettle.
In the United States, intended or not, the approach to people who have been shut out of the financial services system has been different and rather more effective. I would like the Government as well as the regulators to go away and look at it. Under the Community Reinvestment Act 1977, any bank that sought permission to acquire or merge with another bank—something almost every bank was doing at the time—was required to demonstrate that it fully served the disadvantaged communities in its service area. As a civil rights measure, banks were basically red-lining African American, Latin American or Central American communities. They were allowed to serve those communities by supporting local institutions identified as much better fitted to the purpose. This gave a new lease of life to community development financial institutions—CDFIs—of all kinds, including credit unions and community banks. The major banks invested in them to pass that threshold and be able to do acquisitions and mergers, and supported them with expertise in marketing and technology.
I would very much like to see that model here; that is the purpose of my amendment. The DWP’s 2019 report on financial inclusion states:
“Social and community lenders such as credit unions and … CDFIs … provide a lower cost alternative to high-cost lenders, they are small in comparison and lack the visibility and capability to compete at scale. The UK needs a much larger, more vibrant social lending sector”.
CDFIs know the needs of their clients—that is where their work is targeted. They often work with local charities and civil society groups to provide money advice, business advice and a wide range of additional support to make people financially capable.
Some investors in the UK are developing new entities in this space. I am aware of two potential new mutuals, one in the south-west and one in London, targeted at this group of people. The recent report by Ron Kalifa on fintechs identified that new fintechs have the capability to provide a tailored, low-cost offering. But the reality is that very few new players have emerged to serve the excluded sector, which tells me that the system that we have at present is not working. I want all major UK banks to engage with this sector and for the regulator to make it a requirement, not just an act of charity or public relations. That could be done within the banking licence or through regulation, but that would change it from being a passive set of actions to an active way in which to make sure that this gap in the market is filled by people capable of doing it well.
I thank the noble Lord, Lord Naseby, and others who supported Amendment 93, which deals with the current and accelerating crisis of access to cash. The Government promised legislation at last year’s Budget, but there is no sign of it yet. Covid has driven a sharp drop in cash usage from three in 10 people before the crisis to just one in 10 people. That is a huge drop, but it still leaves about 5 million people who rely on using cash. Of course poverty and age are often a characteristic, but for many people it is a strong cultural preference; they want to use cash, and it is really their right.
As I understand it, the Government are going to follow the direction recommended by the noble Lord, Lord Holmes; they will be able to confirm whether that is correct. That would permit retailers to provide cash without a purchase, which would help, but it is still very hit and miss. The Access to Cash Review done by Natalie Ceeney in 2019 highlighted the fact that retailers’ reluctance to accept cash is driving a lot of the change. Bank branches are closing across the country, especially in rural and disadvantaged communities. LINK, the largest cash machine network, has a contract with the Post Office, but it has about 18 months or so to run. Free-to-use ATMs are disappearing fast; when I talked to the industry, the estimate that I was given was that, if we do not do something quickly, half the ATMs in the country will be pay to use within 18 months.
We will need intervention by the FCA. Lots of commercial companies are involved in the system and any change or rationalisation throws up competition issues. The banks, for example, could be given an obligation to provide free access to cash but then allowed to use a utility model whereby they combine to provide free, shared smart machines capable of a range of services, perhaps with an assistant present to help users to navigate the machines. That changes how we think about this issue quite dramatically—and normally we would have time to do that, but we are now faced with an urgent situation.
I quote one final phrase of Natalie Ceeney’s report, because to me it says it all:
“It is … critical that action is taken now, so that no-one is left behind.”
I recommend that the Government take urgent action to deal with access to cash.
The Minister of State, Cabinet Office (Lord True) (Con)
My Lords, I thank all those who have spoken very genuinely, because we are considering an important group of amendments on consumer access to credit. I am very grateful for the continued and thoughtful interest of noble Lords in this area. I assure all those who have spoken that we are listening carefully and will read this debate.
Amendment 79 would require the Treasury to introduce legislation to bring buy now, pay later products into FCA regulation, to which all speakers referred. The Government are committed to protecting the interests of consumers and, since Second Reading, as the noble Lord, Lord Tunnicliffe, said in moving his amendment so ably, the Woolard Review has recommended that these products should be brought into the scope of FCA regulation. The Government are acting swiftly, following the outcome to this review, just as the Economic Secretary committed to do during this Bill’s passage through the other place. That is why, on 2 February, we announced our intention to legislate to bring them into regulation. However, it is important to know that these products are interest free and, therefore, inherently lower risk than most other forms of borrowing, so it is essential that regulation protects customers in a way that ensures that they can continue to use these products to manage their finances, rather than more expensive forms of credit on which they might otherwise rely. The Government therefore intend to consult stakeholders to ensure that a proportionate approach to regulation is achieved.
Lord Tunnicliffe (Lab) [V]
My Lords, I did not study this group with the care I should have, otherwise I would have realised what an extraordinarily rich group of amendments it is. They seek to address individual areas of customer concern and equalise the balance between customer and firm. It is interesting that, as I think the noble Baroness, Lady McIntosh, said, each has its merits.
I thank the Minister for his response and note the little chinks of optimism that he has allowed us to go away and, hopefully, talk. I hope he will also extend that invitation to many of the movers of amendments in this group, perhaps working together to see whether there are areas where more progress can be made. While normally we would not be happy with bits of legislation leaving most of it to happen via regulation, in comparison with the possibility of no finance legislation for a year or so, we must have an open mind about mechanisms going forward. Furthermore, I and my fellow noble Lords in this in no way seek that he accepts our wording. We know that the chances of our wording being acceptable to the Government are negligible, and therefore have an entirely open mind about his wording, provided that it leads to the same result.
The noble Baroness, Lady Kramer, mentioned en passant the concept of duty of care. I know that terrifies Governments; they will have to come to terms with it sooner or later, but for the moment I recognise that we cannot get there. Sadly, in many areas of retail finance, products and services, sectors of the industry at least seem to have a duty to exploit. The problem is that this exploitation frequently leads to real harm to real individuals. These amendments are about real individuals and preventing real harm. The problem is that there is an asymmetry of power in the sector, certainly at the level of the individual, between the firms and your typical consumer.
Purists will argue that this asymmetry will be held back by competition. I am not that enamoured with competition. To me, competition is when, on a Friday morning, I drive out to do the shopping for the week and can turn left for Waitrose, straight ahead for Tesco or right for Sainsbury’s. That is real competition. Every week I make that decision—it is not like the bother and fear of moving one’s service providers in the financial world, if you are an unskilled typical consumer. Possibly nowhere in our modern society is the concept of intelligent regulation more necessary than in the financial services sector. The complexity on the one hand and the opportunity and possibility of getting into serious harm on the other are so significant that we must accept that intelligent regulation, of which the amendments in this group are all examples, must be part of the financial services landscape of activity. All we seek to do in this group is introduce intelligent pieces of regulation to make the whole thing fairer for the customer.
I look forward to further discussions with the Minister and his colleagues. With that, I beg leave to withdraw my amendment.
Lord Sharkey
“Sharia-compliant financial services
Within one year of the passing of this Act, the Secretary of State must publish an assessment of the availability of Sharia-compliant financial services in the United Kingdom, including financial services to support students.”
Lord Sharkey (LD) [V]
My Lords, Amendments 80 and 88 are probing amendments. Their purpose is to allow the Committee to debate access to Sharia-compliant student finance. I raise this issue because there is no such access.
Noble Lords will know that Islam forbids interest-bearing loans. This prohibition can be and is a barrier to Muslim students going on to attend our universities. I first became aware of this when I visited the Preston Muslim Girls High School as part of the Lord Speaker’s Peers in Schools programme. I talked about the work of the House and tried to answer the girls’ questions. There was one question I could not answer: why was there no Sharia-compliant system of student finance?
Many of the girls came from deeply religious backgrounds and would not be able to accept interest-bearing loans. This meant that they could not go on to university, which they were certainly qualified to do. Ofsted rated their school as outstanding on every measure. The headteacher explained to me that, when tuition fees were low, many Muslim students were able to attend university financed by family and friends, but, since 2012, this had become much more difficult because of the very large increase in fees and the real rate of interest now payable on student loans. The situation became even worse when maintenance grants were replaced by interest-bearing loans.
The Government have known about all this since 2012. In early 2014, the then Department for Business, Innovation and Skills consulted on the issue. The consultation generated an astonishing 20,000 responses. The Government’s report on the consultation noted:
“It is clear from the large number of responses … that the lack of an Alternative Finance product as an alternative to conventional student loans is a matter of major concern to many Muslims.”
This same report also identified the solution: a Takaful, a well-known and frequently used non-interest-bearing Muslim financial product. The Government explicitly supported
“the introduction of a Sharia-compliant Takaful Alternative Finance product available to everyone”.
That was six years ago, and nearly four years ago we passed enabling legislation in the Higher Education and Research Act 2017, but there is still no Sharia-compliant student product available. Over the past five years, I have repeatedly pressed the Government to act. I have spoken in debates in the Chamber; I have asked Questions, oral and written, and I have written directly to the Minister. I last spoke about the issue at length in the Queen’s Speech debate in October 2019. Soon after that, the Minister, the noble Baroness, Lady Berridge, wrote to me saying:
“The position remains the same as when the Government responded to your PQ in July. We will set out plans for implementation as we conclude the Post 18 Review. This will ensure that students in receipt of an Alternative Student Finance package are not disadvantaged compared to other students in receipt of mainstream student support.”
As I had heard nothing further, I emailed the Minister on 4 January this year. I pointed out that, since her letter to me, one more student cohort had entered higher education, and another was now preparing to do so, but there was still no available Sharia-compliant student finance. I asked her for an update on implementation. I asked whether we were still waiting for a formal response to the Augur review and suggested that we should not. I pointed out that the Government had recognised the problem more than six years previously and had had the power to deal with it for four years. I sent this email on 4 January and I have had no reply.
We are having this debate as students are considering their university choices for next September. Once more, there will be devout Muslim students who, though qualified, will not be going to university because of the lack of a sharia-compliant student finance product. It is very hard to understand or excuse the Government’s behaviour over this issue. They know the problem, acknowledge the need to act and have taken the powers to introduce the remedy, yet nothing has happened. It is shameful that the Government have allowed so much time to elapse and that they display such a casual neglect of and disregard for our Muslim community.
At the World Islamic Economic Forum in 2013, David Cameron promised to introduce a sharia-compliant student finance scheme, saying:
“Never again should a Muslim in Britain feel unable to go to university because they cannot get a student loan—simply because of their religion.”
When will the Government finally make good on this eight year-old promise? I beg to move.
Lord Naseby (Con) [V]
My Lords, I am absolutely delighted to support my friend, the noble Lord, Lord Sharkey, who has clearly positioned the problem. I have had the privilege of working in Pakistan—which is almost totally Muslim—and India, which has a very significant Muslim population, as well as Sri Lanka, where a big majority of the minorities are Muslim. Locally, they do not seem to have a problem in dealing with this issue; can we not learn from them, particularly Pakistan? We have high commissioners here, so why do we not at least find out from them what the problem is in relation to the UK—and get their help?
This issue is increasing. The sharia families who are really strong in their faith increasingly want to send their children to university—that is part of the philosophy of that faith—and here we are, years down the track, making it very difficult for them. We must do something about it. In towns and cities such as Luton, Leicester and some of the other major ones in the north of England—let alone London—there are students and families who do not know what to do about it. We have to take some action.
It goes further than that, does it not? We want students from overseas; we are seeking them. There are sharia-compliant students from the Muslim fraternity overseas who want to come. I really do not see why this is so difficult to do, so I say to my noble friend on the Front Bench: Her Majesty’s Government need to solve this problem; sit down with the sharia-compliant banks and, if necessary, with the high commissioners to seek their support and help; and solve this problem.
Frankly, it is an embarrassment for any of us who have good friends in that community—as I do and I guess most of your Lordships may well do—to find that potential students are not able to pay their tuition fees and receive student maintenance grants without being penalised or having to find some method to go around the scheme, where the senior mothers and fathers are doing that at all.
As such, I make a plea to my noble friend on the Front Bench: this is not a party-political issue or anything like that—this is just good and straightforward. The problem is known about and has taken years to be solved; can we please take a significant step forward?
Lord Stevenson of Balmacara (Lab) [V]
My Lords, I believe the House owes a great debt of gratitude to the noble Lord, Lord Sharkey, for the work he has been doing on this issue over the last nine years. I have been involved in part of the process, which is why I put my name down to speak: like him, I feel rather confused and not a little embarrassed that no action has been taken in recent years.
Like the noble Lord, Lord Sharkey, I first got involved in this when policy changed in the early part of the coalition Government and new arrangements were introduced for interest-bearing loans and, eventually, maintenance loans. I recall that in about 2014 there was the consultation process described by the noble Lord, Lord Sharkey. As I was then the Labour spokesperson on higher education in your Lordships’ House, I got a lot of correspondence, exactly as he described, from potential students and some existing students. Potential students wanted to know whether at the time they applied and went to higher education there would be a real chance of there being loans that they could take out that would not be a problem in terms of sharia compliance. More worryingly, students who were already at university in the middle of their course found that they could not continue without a guarantee in some form that finance would be available to allow them to see out their course.
In a sense, we were all trying to do the same thing. Indeed, I sat in on meetings with the Higher Education Minister at the time, Jo Johnson, and other colleagues in the House. We had meetings with representatives of Muslim students and the community at which a lot of these issues were explored. When the Government took powers in the 2018 Act, as described by the noble Lord, Lord Sharkey, to ensure that they could facilitate the production of loans of this type, we thought the matter was over. Indeed, I wrote to a number of people I had been working with saying that we thought that the process had reached its natural conclusion and that it was just a matter of time before the Government brought forward the necessary proposals.
As we have discovered, that has not happened, and although there have been promises and suggestions that it was coming, it has not. The Government have got themselves into a very bad position here. I cannot believe that it is impossible to go forward—as the noble Lord, Lord Naseby, said, just to do it—and I am looking forward to hearing the Minister’s response. If there is anything we can do to help, he should be sure that there is, as the noble Lord, Lord Sharkey, said, no politics in this. We simply want a good job done to make sure that all people who contribute and wish to contribute to higher education in this country can do so and are not in any sense disadvantaged simply because of their religion.
Baroness Kramer (LD)
My Lords, any one of us can go on to our smartphone and find an app for halal financing for someone who wants to buy a car or a house—they are called “halal mortgages”—or who needs money to support a small business. It is incredible and quite incomprehensible that we do not have a sharia-compliant version of student loans. It is not as though we do not know how to do it or the institutions do not exist in the UK. I suspect that many noble Lords have been, like I have, at general meetings of the financial services industry where, as well as talking about being world leading in terms of green finance, we have talked about London as a very important centre for sharia-compliant finance as we attempt to expand and have a much greater global reach. Six years is an incredible time to wait. It has been four years since enabling legislation was put in place.
I was looking at a Metro article on the web about students who were interviewed in 2019. Some had managed to put together a way to pay their student fees. One said:
“I was constantly broke as a student and never, ever did anything remotely fun. I always felt too guilty if I spent any money on myself.”
Students who started out and found that they just could not keep going left and went to work, but then found that, as this lady said,
“to progress further I need that degree so the plan is to go back.”
However, this young woman has no idea how to finance it. Another youngster talked about the stress of
“having to live scrupulously and scrape up enough to pay each instalment in time.”
We really should not be putting any student into this situation. I do not understand the delay. There does not seem to be an obstacle in terms of designing the appropriate facility or the appropriate legislation. I hope that the Ministers who are here, all of whom are people of understanding and sympathy, will go and put pressure on the Government to take this from the bottom of the in-tray and put it at the top. It could be a minor amendment that we make on Report.
Lord Tunnicliffe (Lab) [V]
My Lords, the last Labour Government were supportive of facilitating access to sharia-compliant financial services, and we understand—and welcome—that Her Majesty’s Government have made similarly helpful noises during their time in office. This is an interesting time for financial services as some firms prioritise divesting from fossil fuel projects, and so on. If such moves are possible, surely we can make progress on services that do not have involvement in industries such as gambling or alcohol?
Amendment 88 raises the issue of sharia-compliant student finance, which was subject to a recent e-petition on the Parliament website. In their response, the Government recalled their consultation on the matter back in 2014 and said that they intend to publish an update on progress later this year. While we appreciate that it takes time to engage with communities to understand their needs, evaluate feedback, devise new schemes and ultimately make them operational, there has been a significant wait for new products, and we need evidence from the Minister that we will soon turn a corner.
Lord True (Con)
My Lords, as has been eloquently expressed, these amendments relate to sharia-compliant finance and specifically to the availability of sharia-compliant student finance products. This is an area where the Treasury and the Department for Education are in close contact. The Government are committed to ensuring that all students in England with the potential to benefit from further and higher education are able to access it. I know from this debate and from others that many noble Lords of all parties are keen to see action on this.
On the specific amendments, which the noble Lord, Lord Sharkey, stated are probing, Amendment 80 seeks to require the Treasury to publish an assessment of the availability of sharia-compliant financial services, I can assure noble Lords that the Government are committed to ensuring that no UK customer is denied access to competitive financial products because of their faith. As referred to in the debate, the United Kingdom is indeed the leading western hub for Islamic finance, a position we have maintained for several years now. Treasury Ministers and officials conduct regular engagement with key stakeholders in the Islamic finance sector to inform our policies.
Amendment 88 seeks to add access to sharia-compliant student finance to the FCA’s objectives within Section 1B of the Financial Services and Markets Act 2000. It would be ineffective to add this objective because student loans are exempt from FCA regulation, meaning that the FCA would not have the powers to fulfil this duty. Additionally, student finance provision is a devolved matter while the FCA is our UK-wide regulator. Finally, as I have explained, work is under way in government to ensure that all eligible students are able to access student finance.
A number of noble Lords commented on the pace of this work. As the noble Lord, Lord Sharkey, said, the Government published a consultation in September 2014 into a potential model that could form the basis of a new student finance product. The Government signalled in the consultation response that they would need to take new primary powers to enable the Secretary of State for Education to make alternative payments in addition to grants and loans. These were secured in the Higher Education and Research Act 2017. The Government have also carried out work with the Islamic Finance Council UK on an alternative student finance product for tuition fee and living cost support compatible with Islamic finance principles.
As has been stated, the implementation of alternative student finance is currently being considered alongside the review of post-18 education and funding. The interim report of that review was published on 21 January and the review is due to conclude alongside the next multi-year spending review. The Government will therefore provide an update on alternative student finance in due course. We should not underestimate the scale of complexity here. The Department for Education is trying to replicate a system of student finance that delivers the same results as now where students do not receive any advantage nor suffer any disadvantage through applying for alternative student finance.
I am sure that our colleagues in the departments concerned have heard the concerns expressed by noble Lords. I hope that, for these reasons, the noble Lord, Lord Sharkey, will feel able to withdraw his amendment.
Lord Sharkey (LD) [V]
I thank everybody who has spoken in the debate on this group. I confess that I should have said clearly at the beginning that my amendments and their text were not the issue; the amendments were simply the fossilised remains of my scope negotiations with the Public Bill Office and a means of introducing the subject of sharia-complaint student finance.
I must say that I am, as usual, extremely disappointed by the Minister’s evasive and unconvincing response. It is a great pity. I still do not understand why there has been such a long delay in addressing this serious problem. The Minister has not offered a reason for the delay except to point at various complications. Perhaps I should remind him that the takaful version of the Help to Buy mortgage system was introduced from a standing start in six months. This has taken nearly seven years, and we have not got there yet. I simply do not understand why this is going to be prolonged and why the Minister cannot give us any assurance about a firm date for the introduction of a sharia-compliant student product.
I also do not understand—I never did—why the Augar review is at all relevant; perhaps the Minister can explain why at some other point. However, I understand that the Muslim community continues to suffer a direct disadvantage without any good reason or plausible excuse. The Government are acting in a completely mean-spirited and heartless way. They are failing in their moral duty, failing to fulfil their explicit promises and failing to provide any real comfort that they might eventually do what they should have done long ago. They are behaving neglectfully and really rather disgracefully. We will return to this issue later.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
Does the Minister wish to speak further? No? Does the noble Lord, Lord Sharkey, wish to withdraw his amendment?
The Deputy Chairman of Committees (Baroness Fookes) (Con)
We now come to the group consisting of Amendment 86.
Amendment 86
Lord Blackwell
“PRA and FCA joint coordination committee
(1) The Financial Services and Markets Act 2000 is amended as follows.(2) After section 3F (with-profits insurance policies) insert—3FA PRA and FCA joint coordination committee(1) In exercising their general duties and their duty to exercise coordinated exercise of functions, the PRA and FCA must establish and maintain a joint regulatory coordination committee to ensure their activities are consistent and proportionate in meeting their respective general duties and objectives.(2) The committee membership shall be—(a) the Governor of the Bank of England as Chair,(b) the Chief Executives of the PRA and FCA, and(c) two independent non-executive directors of each of the PRA and FCA.(3) The committee must review—(a) how their combined exercise of functions accords with each organisation’s individual duties and objectives, and with the memorandum of understanding between the FCA and the Bank of England; (b) their combined supervisory agenda for each of the five largest banks and five largest insurance companies they regulate; and(c) their combined supervisory agenda for any other dual-regulated entities they identify as systemically important;in order to ensure consistent priorities and proportionate impact.(4) Where the committee concludes that the combined exercise of functions by the PRA and FCA is not consistent and proportionate it must report that to the PRA and FCA boards, which must consider what changes might be made to address the concern.(5) The committee shall meet at least once every year.””
Lord Blackwell (Con) [V]
My Lords, once again I draw the Committee’s attention to my current and recent interests as set out in the register.
The purpose of this amendment is to place an obligation on the two regulators—the PRA and the FCA —to co-ordinate their agendas and priorities to ensure that their combined activities are consistent and proportionate in meeting their respective duties and objectives in terms of the burden of regulation on the industry in general and, in particular, the regulatory burden that they place on major financial institutions.
Baroness Bowles of Berkhamsted (LD) [V]
My Lords, I have some sympathy with the motivation for this amendment concerning co-ordination of regulators and combined regulatory agendas. Of course, there is already an MoU between the PRA and the FCA about modes of co-operation, who leads on which issues, and how to escalate to the two CEOs to resolve. I took the opportunity to remind myself of it; it is only an agreement to consult on deliberations that are equally relevant to both regulators’ objectives or which might have a material effect on the others’ objectives. Senior executives have discussions every quarter and report to their respective boards. It is perhaps disappointing that it does not contain more. It reminded me that it can be hard to force independent regulators to co-operate, especially at the moment that they are created. They fiercely guard their independence, not just wanting to do things their own way but vehement that they are obliged to do so.
In the EU, my committee insisted that there be a joint committee of the three regulators; we got it into legislation, albeit in a very sketchy form, with the intention that they got together to thrash out different positions. However, in that, they stayed as equals and there was no overarching power, rather as it is in the MoU between the PRA and the FCA. I can tell you that the regulators did not like the idea. When they came to committee hearings, we had to keep asking whether they had met yet. The answer was that they were concentrating on their own set-up and procedures first. Eventually, there came to be a few problems and, as happened back then in the EU, the Parliament was seen as part of the solution. So, they came to me, discovered that I knew all about this since industry had alerted me as well, and, after a chat and—perhaps—a bit of pressure, I remember saying that that was why we had invented the joint committee and kept asking about it. Slowly, they started to use it, then decided it was quite a good thing and, finally, wondered how they could ever have done without it; maybe they were also a little afraid of what Parliament might say if they did not make it work.
I have thought about that experience and whether the UK is better off with the MoU—which actually has more definition in it—or worse off because, in the end, it reinforces territories rather than being a less formal get-together. There is a problem with the proposal by the noble Lord, Lord Blackwell, in that it is formalised with the Governor of the Bank of England as chair. I am not sure that establishing a pecking order as it does is the right thing, even if it does end up going back to the two CEOs, which, of course, is where the MoU takes it all to anyway. I certainly do not like it as a step towards abandoning the “twin peaks” idea.
The present Governor also has FCA experience but, in the circumstances, that might complicate matters. One thing the amendment proposes is for the joint committee to check that the MoU is working. That check is important; it will surprise nobody that, in my view, if the MoU is not working, that is just the sort of matter that Parliament should get involved with to see if it can catalyse some action. The rest of the amendment also seems to be on things Parliament should be asking about and could ask to have reports about. Although I do not think that the noble Lord, Lord Blackwell, has directed attention towards the right body, he highlights some issues on which the regulators should be quizzed.
Baroness Noakes (Con)
My Lords, my noble friend Lord Blackwell’s Amendment 86 identifies a very real problem that has existed since the Government decided to abolish the Financial Services Authority and split responsibility for conduct and prudential regulation.
I was never in favour of splitting the FSA. It had certainly failed as a regulator, as the financial crisis laid bare, although it must be said that other regulators around the world, whether combined or separate, fared no better. The FSA had not managed to get the balance right between conduct and prudential regulation; it had an obsession with conduct matters and treating customers fairly, which often dominated its thinking, while banks in particular were allowed to run on wafer-thin capital ratios. It needed reform rather than a wrecking ball.
When they were separated by the Financial Services Act 2012, many concerns were expressed about the possibility of a lack of co-operation. As has been said, a number of mechanisms were put in place, including the statutory duty to co-operate, the memorandum of understanding and cross-membership of the boards of the PRA and the FCA. However, as my noble friend Lord Blackwell explained, it has not always worked well in practice. There are problems of overlap and overload. Some issues, such as cybersecurity, are of interest to both the PRA and the FCA. Such an overlap comes with the split between the two regulatory peaks, but often they focus on the issues in different ways, on different timescales and with different objectives. This is often inefficient from the perspective of regulated firms.
The cumulative impact of the requirements of the PRA and the FCA can lead to significant overload. There is no real prioritisation mechanism. Regulated firms can be bombarded by each regulator and, even if the individual regulator prioritises its own demands, which is not always the case, there is no real mechanism for the competing demands of the FCA and the PRA. For example, I recall in the middle of stress testing, which is led by the PRA and tends to absorb the resources of subject matter experts specialising in credit risk, the FCA produced big data demands in exactly the same area and requiring exactly the same subject matter experts. It would not have occurred to either regulator to see regulatory demands from the other regulator as more important than its own.
I support the aims of this amendment. Whether another committee would have any impact is another matter, especially if it met only once a year. We must remember that the tripartite arrangements that failed during the financial crisis looked good on paper. It was just that they were never taken seriously and were allowed to fall into disuse. The same could happen to a committee.
My noble friend might want to look at how his amendment could be improved by incorporating an element of reporting to Parliament. On the first day of Committee, we debated parliamentary accountability more widely in the context of the new rule-making powers that are being transferred to the FCA and the PRA. The new accountability arrangements, which some of us advocated, could include examining how well the regulators are working together and co-ordinating their activities; that should be strongly considered if my noble friend chooses to bring this issue back on Report.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I am looking closely at Amendment 86, introduced so eloquently by my noble friend Lord Blackwell, and asking myself why it would be needed in view of the comments made by my noble friend Lady Noakes and the noble Baroness, Lady Bowles.
These are both deemed to be independent bodies. While my noble friend Lord Blackwell has rightly identified a number of shortcomings, I do not really understand why a joint co-ordinating committee, as my noble friend Lady Noakes pointed out and as it says in proposed new subsection (5), would meet only at least once every year—I presume it could meet more often.
In any event, I imagine that these issues are dealt with to some degree by the Treasury Select Committee in the other place. My noble friend Lord Blackwell probably has identified issues but there are very good reasons—he set out the background to this—why the PRA and the FCA replaced the FSA. Each should be able to enjoy a degree of independence in its operation. My noble friend Lady Noakes rightly identified a number of areas of overlap and overload, but I think that this can be addressed through the functioning of the memorandum of understanding. I struggle to see why this amendment is required.
Baroness Neville-Rolfe (Con)
My Lords, it is always a great pleasure to follow my noble friend Lady McIntosh of Pickering, who is sitting today in front of a superb backdrop of the Houses of Parliament—in my opinion, one of the best views in Europe. I await my noble friend the Deputy Leader’s comments with great interest.
I have great respect for my noble friend Lord Blackwell and for all he has achieved. However, I have some doubts about this proposal, not least the amendment’s apparent focus on bigger operators. For me, the second-class treatment of small operators in the financial services sector as a result of regulation by two regulators is the bigger issue. It is there that the pressure on investment funds and on capital, the prioritisation of IT resources and the lack of management capacity—described so well by my noble friend Lord Blackwell—is at its most apparent. Smaller firms also suffer from the overlap and overload mentioned by my very experienced and expert noble friend Lady Noakes. I should say that I speak as a non-executive director of Secure Trust Bank, which is a smaller bank.
I was pleased to see the Chancellor focus on smaller businesses in last week’s Budget—for the first time, I felt—although I am not sure how much that will help in the financial services context.
In conclusion, is this amendment necessary, or can we tackle the issues rightly raised by my noble friend in another way?
Viscount Trenchard (Con) [V]
My Lords, my noble friend Lord Blackwell’s amendment is an interesting idea and deserves serious consideration. It requires the establishment of a new joint co-ordination committee, comprising delegates of both regulators under the chairmanship of the Governor of the Bank of England. As long as we retain a “twin peaks” regulatory structure, it is clearly right that both regulators carry out their duties in a co-ordinated manner, ensuring that their activities are consistent and proportionate in meeting their respective general duties and objectives.
At the time of the introduction of the “twin peaks” system, we were told that it was necessary because there was a conflict between the interests of the consumer and those of the Government in maintaining financial stability. However, the FCA is responsible for both consumer protection and the prudential regulation of all regulated companies except very large ones that are considered systemically important. Might not the best way to be sure that the regulators’ actions are consistent and proportionate be to merge them into a single regulator—the FSA—but leave the Bank responsible for macroprudential regulation?
As I failed to add my name to the speakers’ list for the group of amendments beginning with Amendment 2, debated on 22 February, I was able to speak only briefly after the Minister. My noble friend’s amendment deals with much the same ground, which gives me an opportunity, with the Committee’s leave, to make some of the points that I had wanted to make on the first day.
My noble friend’s amendment seeks to ensure consistent priorities between the two regulators. This is hard to do if the objectives confer conflicting priorities on the two regulators. Indeed, it can be argued that being dual regulated at all is time-consuming, expensive and unattractive. However, I strongly believe that we must move quickly to maximise the attractiveness of London’s markets in order to be assured that the City, including our wider financial services industry, will remain one of the two truly leading global financial centres, with all that that means for our prosperity as a nation.
In 1999, I was privileged to serve on the Joint Committee on Financial Services and Markets under the chairmanship of the noble Lord, Lord Burns, during my first incarnation in your Lordships’ House. At that time, we considered arguments that the FSA should be given a competition objective as a fifth objective. This was supported by the BBA and the ABI, but the Government argued, and the committee ultimately decided, to put competition and competitiveness among the principles rather than the statutory objectives. Two arguments that led us so to decide were that ensuring competition was the primary task of the OFT, not the FSA, and that making competitiveness of UK financial services an objective could damage the FSA’s relations with overseas regulators. Our report at that time noted that some members of the committee would have preferred competition and competitiveness to feature among the FSA’s statutory objectives.
Much water has flowed under the bridge since 1999. Following the financial crisis of 2008, the FSA was split into two regulators, and we adopted the “twin peaks” model that had first been introduced by Australia. On 22 February, my noble friend Lord Howe said that discussions about the balance of the regulator’s objectives
“are not arguments for today. The Government’s future regulatory framework review is considering how the UK’s financial services regulatory framework must adapt to reflect our future outside of the EU. That has to be the right place to consider issues such as the regulators’ objectives”.—[Official Report, 22/2/21; col. GC 142.]
The Minister’s response was disappointing. Does he not agree that our departure from the EU and freedom to adopt an entirely different, principles-based, outcomes-oriented regulatory model suggests that the Government should look seriously at this question as soon as possible?
Some encouraging proposals are included in the phase 2 framework consultation, such as the introduction of “activity-specific regulatory principles”, described in section 2.38. However, it seems that the Government do not plan wholesale changes. They conclude in section 2.46 that these regulatory principles could bring about
“enhanced regulator focus on … competitiveness, without needing to change the regulators’ overarching objectives”.
Such an approach is dangerously complacent. Can the Minister confirm that the Government agree with Andrew Bailey that it would be unrealistic and dangerous to stick to EU banking rules in the future? Surely, in financial services, where we enjoy the advantages of scale and can influence the emergence of global consensus around principles-based regulations that support innovation, we should move quickly to establish the right regulatory framework to do that.
Co-ordination between our two regulators has served us fairly well to date, but it is likely that the regulators will continue to face difficulties inherent in a multi-agency regulatory structure where the performance of one regulator is often dependent on that of the other. There is also a challenge in establishing the borders of financial regulation for allocating functions between the FCA and the PRA. In particular, the increased focus on systemic stability and macroprudential regulations has resulted in overlap between the two regulators. The FCA has responsibility for the prudential regulation of more than 24,000 firms in the UK, whereas the PRA is responsible only for the prudential regulation of some 1,500 systemically important banks and investment firms. Further, the “twin peaks” system is inherently anti-competitive for dual-regulated banks and investment companies, which have to report a large amount of monthly data in two different formats to two different regulators.
The PRA’s secondary competition objective is, by definition, subordinate to its other two objectives. In effect, it is simply a principle to which the PRA should have regard. Many countries have financial regulators that incorporate some kind of competition objective among their statutory objectives, and I do not think that there is any evidence that this has damaged their relationships with either the PRA or the FCA.
Furthermore, in his recent report on competition and markets, John Penrose found that
“our independent competition and consumer regulation regime currently has a good reputation, but not a great one. International rankings put our major competition institutions behind USA, France, Germany, EU and Australia. We have stopped making progress on cutting the costs of red tape and, in recent years, have gone backwards”.
This is largely as a result of a constantly increasing number of sectors, including many in financial services, being caught by the tentacles of the very cumbersome, expensive and complicated system of regulation that has been increasingly pushed by the Commission in the interests of harmonisation.
We have prospered and succeeded as a global financial centre not because of our EU regulatory framework but in spite of it. We may have devised much of the financial regulation ourselves and may even have gold-plated some of it, but we did not choose to work within the codified structures on which European law is based. Besides, our regulators are not that different from anyone else’s: they like to make rules, and gold-plating has been the only way that they could do that in recent years.
As Barnabas Reynolds explains well in his recent paper, published by Politeia and entitled Restoring UK Law: Freeing the UK’s Global Financial Market, common law is
“pivotal to the success of a global financial centre … A key element of London's attractiveness to investors is its legal framework, which underpins a flourishing commercial environment with the rule of law”.
I worry that the Government do not yet recognise that we have to replace the entire directives-based, cumbersome, EU-derived financial services rulebook and go back to something more like how we used to regulate: based on common law principles and outcomes. There is huge resistance to change among trade associations and larger financial services groups because the present system helps the strong incumbent against the innovator and the challenger—and is, in fact, a form of protectionism.
I look forward to hearing what my noble friend the Minister intends to do to move in the direction in which we need to go. I believe that my noble friend’s amendment may provide a first step on that journey.
Baroness Kramer (LD)
My Lords, I will respond to the noble Viscount, Lord Trenchard. I for one would be very reluctant to go back to the pre-2008 principles-based approach to regulation that led us into a long, slow crash that, frankly, seriously undermined the financial stability of the UK and caused years of austerity. I do not think that is a good example to hold up of the world that we want to return to.
When the FCA and PRA were created—at that point the latter had a degree of independence from the Bank of England, although I think the Governor was always going to be its chair—one of the reasons that it was important to keep some distinct separation was to prevent the groupthink that had been fundamental to the failures that led to 2007-08. Those were failures to identify systemic risk, to ask questions, to create challenge and to recognise that conduct and prudential regulation are equally important in keeping a system as complex and difficult to regulate as the financial services industry on some kind of transparent and rational platform.
Lord Eatwell (Lab)
My Lords, those of us who were involved in the discussions on the Financial Services Act 2012 will no doubt remember the debate in which the noble Lord, Lord Sassoon, then speaking for the Government, revealed that the principals of the tripartite committee—the noble Lord, Lord King, Gordon Brown and Howard Davies—had never met. He then revealed that the committee had slowly moved down in terms of the seniority of the officials who attended, and it was basically steadily downgraded into complete irrelevance. It was a co-ordinating committee between the Bank of England, the Financial Services Authority and the Treasury, and it did not meet. What this suggests to me is that an effective committee to deal with some of the issues of co-ordination, which have been referred to by the noble Lord, Lord Blackwell, in moving his amendment, must have an organic purpose identified and shared by the participants. There must be, if you like, some enthusiasm about the operations of the committee which encourages everyone to participate fully.
In the discussion we have had on this amendment, I have been struck by the nostalgia for the FSA. I shared with the noble Baroness, Lady Noakes, the feeling that breaking up the FSA was unnecessary. Indeed, I think it was mainly done to show that something was being done rather than having to face up to the intellectual, analytical and groupthink failures to which the noble Baroness, Lady Kramer, referred. However, if there is the problem which the noble Lord, Lord Blackwell, has identified, the noble Baroness, Lady Noakes, has once again come up with the right answer, which is that there would be an organic interest of both to work together if they had to report to a suitably well-resourced and tough parliamentary committee which then ensured not only that the conditions of the MoU were being followed but that other identified overlaps were being dealt with in a productive way. So I think we come back once again to the debate we had concerning parliamentary scrutiny and identify, yet again, a positive role for Parliament in this respect.
Earl Howe (Con)
My Lords, this debate has taken us back to a number of the issues that were brought sharply into focus during the passage of the Financial Services Act 2012. It has been useful. I therefore begin by assuring the Committee that the Government agree that we now have an important opportunity, not least in the wake of our exit from the EU, to review our regulatory framework and ensure that it is high-quality, agile and fit for the future. I assure my noble friend Lord Trenchard in particular that we will progress the future regulatory framework review as a priority and take specific action in high-priority areas, as I have set out in previous debates. I hope noble Lords will forgive me if I do not rehearse the remarks that I made in our earlier debate on competitiveness—a subject to which we will return, I am sure.
Amendment 86 seeks to establish a new joint co-ordination committee for the PRA and FCA to ensure that their activities are consistent and proportionate. Of course, the Government agree that it is important that the PRA and FCA work closely together and take a co-ordinated approach to the regulation and supervision of firms. However, I respectfully submit that this amendment is not necessary to ensure that that is the case. As my noble friend Lord Blackwell noted, the PRA and the FCA have different statutory objectives, which will naturally—and, on occasion, rightly—lead to differing priorities as these objectives are pursued.
I note the reservations expressed by my noble friends Lady Noakes and Lord Trenchard. However, this model was agreed by Parliament in the Financial Services Act 2012 as part of the post-crisis reforms, and the Government and regulators have taken a number of actions to support and improve co-ordination between the institutions while they carry out their different objectives. I believe that this addresses in a very real way the issue that my noble friend Lord Blackwell seeks to highlight through his amendment.
As mentioned in the amendment itself, there is already a memorandum of understanding between the FCA and the PRA, as set out in the Financial Services and Markets Act as amended. The MoU sets the framework for co-operation on a number of issues, particularly dual-regulated entities. In April 2020, the regulators introduced the new Regulatory Initiatives Grid, supported by a senior co-ordinating forum. The grid’s purpose is to increase co-ordination across the regulatory landscape. It provides a user-friendly overview of upcoming changes to allow the sector to plan for the future more effectively.
The senior co-ordinating forum is chaired jointly by the chief executive of the FCA and the chief executive of the PRA. It discusses the combined impact of regulatory initiatives across the financial services sector, and seeks to allow the Government and regulators to identify and address any peaks in regulatory demands on firms. The forum also provides a clearer picture of upcoming initiatives so that firms are better placed to plan for them, supporting the regulatory principles of proportionality and transparency.
I hope that those remarks are helpful in providing the background to the co-ordination that we have seen put in place and that, therefore, my noble friend Lord Blackwell will feel sufficiently reassured to be able to withdraw his amendment.
Lord Blackwell (Con) [V]
My Lords, I thank all noble Lords who have contributed to what has been a very helpful discussion. In moving this amendment, I was not advocating recreating the FSA; there may be a debate about that at some point in time. My point was that, having split out these separate objectives, there are points at which there are conflicts and that does not remove the need to resolve those conflicts or to have a mechanism to do that.
I listened with great interest to the noble Baroness, Lady Bowles. Her experience with the EU is clearly very relevant. I have, of course, studied the memorandum of understanding between the two regulators, but my reading is that it is much more about setting out the clarity of their individual roles and their rules of engagement, including such things as exchange of information. It does not require them to resolve issues of conflict or set priorities. It is a much lower-level setting out of the boundaries and how they should operate across them. The simple fact is that I think practitioners would say that it has not led to those issues being dealt with.
My noble friend Lady Noakes and the noble Lord, Lord Eatwell, talked about reporting to Parliament. Clearly, that is a major area, which we have discussed and will discuss further, and it may be helpful here. However, I find it difficult to believe that a parliamentary committee—particularly the Treasury Select Committee but maybe we can move to some other form of committee —would get into the level of detail of the regulatory load on institutions and those priorities. It may be able to check whether meetings are happening and the agenda is being followed, but I do not think that it can resolve the issues.
As the noble Lord, Lord Eatwell, says, if there is such a committee, there has to be a purpose. One of my reasons for specifying looking at the load on the major institutions is that it is only when you get down to the granularity of how the different agendas are loading up on specific institutions that you can have a meaningful discussion about where the conflicts arise. I am not wedded to this particular mechanism or this particular committee. I am not even sure that legislation is needed. As the Minister said, it is an issue I have raised with the chief executives of the PRA and the FCA. There is nothing to stop them doing this of their own volition. I would perhaps encourage the Minister to sound out with those chief executives how they view this and what they might consider doing to help ensure that the priorities are properly addressed. There is a consultation he has under way. He may take a view on whether this kind of legislation or some amendment along these lines would be helpful. In the meantime, I beg leave to withdraw my amendment.
“Equivalence
The Treasury may not make an equivalence decision unless it has determined that a third country has equivalent legal and supervisory standards, and it may not make a determination based only on agreement to make reciprocal determinations.”Member’s explanatory statement
This is a probing amendment in order to discuss equivalence determinations and processes and the role of reciprocity.
Baroness Bowles of Berkhamsted (LD) [V]
My Lords, in moving this amendment, I shall make comments that reflect in part on EU relations and therefore on the other two amendments in this group.
As the explanatory statement says, this is a probing amendment in order to discuss equivalence determinations and processes and the role of reciprocity. The amendment states:
“The Treasury may not make an equivalence decision unless it has determined that a third country has equivalent legal and supervisory standards, and it may not make a determination based only on agreement to make reciprocal determinations.”
Broadly speaking, the first part of the amendment restates the usual equivalence requirement, and in the second part I am hoping that the Minister can explain how equivalence through trade agreements or reciprocal equivalence agreements will work. Will those mechanisms be allowed to dilute the standard set through the usual requirement?
We have heard a lot about trying to get equivalence with the EU. My position has always been that it was a remote possibility without rule taking, or dynamic alignment as it has become called. It also seems to me that the way in which the UK wants to operate, with the regulator making rules that can be flexible, makes it more difficult, or even impossible, for the EU, and maybe some other jurisdictions, to agree equivalence. That is because it ends up not being about rules—because in the UK they will be able to flex and vary—but about supervisory equivalence, or, as the noble Viscount, Lord Trenchard, called it, the outcomes. That is more subjective, a matter of opinion and confidence in supervisors rather than an objective analysis of rules.
This reasoning also lies behind what some noble Lords may see as my obsession with getting more information out of supervisors and for regular independent reviews. How else are we, let alone another jurisdiction, going to know what really goes on? Even less demanding jurisdictions than the EU, such as Australia, once they have set up independent scrutiny of their own regulators, may begin to wonder what they know about ours.
Our regulators will say that they have good and friendly relationships with other regulators and that they are respected and so on—all the presentations that they have repeatedly given to committees about why there would be equivalence with the EU in the end. They have been wrong so far, and I am not holding my breath. The statutory instruments currently underpinning legislation will be progressively taken away. I am sure that the EU will read these debates where the Minister has repeatedly stated how FSMA will enable rules to change quickly and be made bespoke and that is why Parliament cannot be let in too much. One hopes that means that rules will change to close gaps and adapt to new types of business, but there is nothing anywhere that says that. It can easily be interpreted as an intention to ease here and there, just like the tailor if we eat a little too much.
I am not trying to be awkward. I have sat in discussions with the European Commission at a time when my committee was concerned that the EU was being too rigid on equivalence. I have had to explain that equivalence was sometimes—in fact, quite often—of mutual benefit. That instinct to have things fixed and controlled between member states ran through every piece of legislation in one never-ending grind, as elaborated correctly by the noble Viscount, Lord Trenchard, on the previous amendment, although we may come from opposite positions. Such an instinct is stronger in financial services than in any other sector because of the philosophical commitment to the euro, whether or not that is relevant. Yet, somehow, it is still hoped that the EU can work out how to deal with this squidgy balloon that defines UK financial services rules. All I am saying is that we have to recognise that if we want the squidgy balloon way and the outcomes way, there are consequences when it comes to equivalence decisions.
That is looking at it from the outside. The other side of it is the inside. What are our rules and supervisory standards that other countries will have to be equivalent to? How is that judgment to be made? Will it be a rule book by rule book comparison or will it really be mutual recognition of supervisors, and if so, based on what? How will that assessment be done? Will HMT agree reciprocal equivalence with anyone when it sees an opportunity for export of financial services and assumes that not much will be incoming back to the UK, or will UK standards be lowered to match those of incoming equivalent businesses from the third country? Will UK firms be allowed to drop standards when operating overseas? To come back to my amendment, will the Government allow weaker standards, through trade agreements and reciprocal equivalence agreements, and how will consumers and financial stability be protected?
The example of software being allowed for capital is a convenient one, although there are probably bigger things. I kept that out of EU legislation but the UK could not hold the line on that this time round. The US has also allowed it. Where does that put banking equivalence for us in relation to the US and, should it ever be on offer, the EU? What top-up supervision or other requirements will go on?
It will be clear that I am less obsessed by getting reports on the EU situation as required by Amendments 100 and 105—although I will happily read them and wonder what is new. I am more obsessed with what standard is really being required by the UK of other jurisdictions to permit equivalence by any route and, in turn, how that will reflect back into our own supervisory standards. I beg to move.
Lord Hodgson of Astley Abbotts (Con) [V]
My Lords, I have Amendment 105 in this group, which is also a probing amendment, and seeks to insert a new clause in the Bill about regulatory co-operation with the EU. In her Amendment 90 the noble Baroness, Lady Bowles, called for actions. Amendment 105, as the explanatory statement makes clear, is a reporting mechanism to report on progress towards or completion of an MoU with the EU on regular co-operation measures, which were envisaged under the trade and co-operation agreement between the UK and EU as regards financial services. The amendment flows from my chairmanship of the Secondary Legislation Scrutiny Committee of your Lordships’ House.
Last autumn, the committee considered a number of statutory instruments, which have granted equivalence to oversight and regulatory arrangements in the EU in the area of financial services. Mostly they were laid by the Treasury but some were laid by another departments. It was not clear to our committee whether the SIs were all part of a potential agreement with the EU or whether they were unilateral individual decisions. We wrote to John Glen, the Economic Secretary to the Treasury, as follows:
“Equivalence in relation to the regulation of financial services is an important aspect of our future relationship with the EU. In several of the instruments that we have considered, the UK appears to have granted equivalence indefinitely, while the EU has not yet completed its assessment of the UK’s equivalence (for example in relation to the regulatory regime for auditors) or has granted only time-limited equivalence (for example limited to 18 months in the case of the supervisory arrangements for central counterparties).”
Against this background, we asked for further and better particulars on three points:
“A list of the equivalence decisions made by the UK Government in the different areas of financial services regulation. Whether the EU has reciprocated and granted equivalence to the UK and its regulatory arrangements in these areas. Whether equivalence by the UK and EU has been granted indefinitely or is time limited.”
The reply on 7 January, which I referred to in my speech at Second Reading, was not a model of clarity and precision. Phrases like
“a package of equivalence decisions”
and “the majority of decisions” do not help critical analysis. The correspondence between the noble Lord, Lord Butler, and my noble friend Lord Agnew at Second Reading, which followed this and circulated among all who participated in that debate, seemed to follow the same generalist approach.
However, John Glen’s letter did make one thing clear, that
“there are no decisions made by the EU that have not been reciprocated by the UK.”
As such, to date, it has been a one-way street. That is not necessarily a bad thing, but Parliament and the country are entitled to, and should, know about the development of our relationship with this most significant and geographically proximate market in a sector of particular importance to the United Kingdom—hence my tabling this amendment.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I am delighted to follow my noble friend, and I thank him and the other authors of the amendments in this group.
This is a particularly appropriate moment to state that “taking back control” has possibly worked less successfully in the financial services sector than in any other since we left the European Union, with Amsterdam having overtaken us as the largest share-trading centre. There are generally understood to be four options for trade in financial services with the EU. First, there is passporting, which we enjoyed and was very beneficial not just to the London Stock Exchange but, I venture to add, other centres, such as Edinburgh, Leeds and other financial centres in the United Kingdom; it was the most seamless form of trade in financial services. Secondly, there is trade on World Trade Organization terms and, thirdly, free trade agreements, such as that agreed between the EU and Canada, although I am not convinced that it covers financial services or services as a whole. Finally, there is equivalence. If we are not able to revert to passporting, and I understand that we are not, that would be a good way forward. My understanding is that equivalence is where a decision is made by one state to recognise another state’s legal requirements for regulating a service, even though they may not be the same—so, clearly, it is not as good as passporting.
I very much enjoyed the introductory remarks of the noble Baroness, Lady Bowles, and I support each of the amendments in this group for differing reasons. Obviously we will not have the chance to hear from the noble Lord, Lord Tunnicliffe, until he speaks to his amendment, but all three of the amendments in this group would, I believe, further the case for equivalence with the European Union.
Time marches on, and we obviously realise that the trade and co-operation agreement with the European Union left out this major sector of financial services. So I take this opportunity to ask my noble friend the Minister to say, in summing up this debate, precisely where we are with the negotiations and whether we have any chance of reaching an agreement on equivalence under the circumstances and the further particulars as set out by my noble friend Lord Hodgson of Astley Abbotts. I find it deeply regrettable when our own Minister cannot answer three very simple questions in a letter so that our understanding is better. However, with those few remarks, I am minded to support Amendments 90, 100 and 105 for the reasons given.
Viscount Trenchard (Con) [V]
My Lords, all three amendments in this group would increase the importance of equivalence determinations, which might ultimately be counterproductive.
Amendment 90 seeks to prevent the Treasury making equivalence decisions for reciprocal reasons alone. I cannot see a shred of evidence that the Treasury might do that. When my right honourable friend the Chief Secretary to the Treasury and Katharine Braddick, director-general for financial services, gave evidence to the EU Services Sub-Committee, they made it very clear that, although they would have preferred a comprehensive set of equivalence determinations, the EU declined to grant any, besides two time-limited determinations for the central counterparties, such as LCH, which clear derivatives transactions. It is good news that the Government decided to make their equivalence determinations unilaterally, based on economics and efficiency of markets, and have no intention of making equivalence determinations for political or reciprocal reasons. I suggest that the noble Baroness’s amendment is unnecessary.
Amendment 100 in the names of the noble Lords, Lord Tunnicliffe and Lord Eatwell, is clearly fighting yesterday’s battle. It presumes that the memorandum of understanding now under negotiation with the EU on future regulatory co-operation is likely to lead to the granting by the EU of a number of positive equivalence determinations. This would indeed provide much-needed clarity in the short term but would also make divergence more difficult. Furthermore, the EU has been unwilling to make equivalence determinations on the basis of equivalence of outcomes. Rather, it has made it clear that it expects the UK to copy its rules exactly, line by line, as the price for equivalence determinations.
The Governor of the Bank of England, Andrew Bailey, has said we will not become a “rule-taker” from the EU. He said that, just as we will not diverge for divergence’s sake, we will not align for alignment’s sake. It is unrealistic to think the EU will grant any significant equivalence assessments to the UK in areas where it thinks we may diverge from its cumbersome and expensive regulations. The majority of the financial services industry, rather than looking for equivalence determinations, which can be withdrawn unilaterally on 30 days’ notice, is now looking to the Government to adopt a new and different pro-innovation, pro-competition, common law-based regulatory regime. That is the way to retain and further enhance the position of our financial services industry and our leadership role in developing proportionate, sound regulation at the global level.
Furthermore, the explanatory notes prepared by the noble Lord are puzzling. The decision of the EU not to grant equivalence determinations to the UK has no effect on UK retail investors, because we have granted equivalence to EU firms in many areas to continue to offer their services and products in the UK. I can see that it may well disadvantage EU retail investors, who will be denied access to products and services produced by UK financial services firms, so I do not think this amendment is helpful under any circumstances.
Amendment 105 in the name of my noble friend Lord Hodgson of Astley Abbotts would require a report on the progress towards agreeing the MoU with the EU on regulatory co-operation. This report will be due within two months of the passage of this Bill. However, the TCA requires this MoU to be entered into by the end of March. It seems unlikely that this Bill will even be enacted by then.
Can the Minister tell the Committee when he expects the MoU to be agreed, when a draft will be available and the Government’s expectations as to its content? I usually find common cause with my noble friend but, in relation to his amendment, I believe the retention of freedom to diverge from EU regulations in order to adopt a better regulatory regime in a particular area, ensuring or enhancing the city’s continuing leading role in that area, is more important than slavish alignment to EU rules to beg or ask for the grant of equivalence determinations which could be unilaterally withdrawn at any time. I therefore doubt whether his amendment is necessary but I am interested to hear what the Minister has to say about it.
Baroness Noakes (Con)
My Lords, it is a pleasure to follow my noble friend Lord Trenchard who, as usual, speaks good sense on this matter. While these are clearly probing amendments designed to get the Government to say how they see the future of various aspects of financial services, it seems to me that, as regards equivalence with the EU, they are rooted in the language of the past. It has been clear for a long time that the EU sees equivalence either as a route to dictate how the UK’s financial services sector is regulated or as a weapon to be used against the UK as a competitor. The Governor of the Bank of England has spoken strongly against the EU’s apparent positioning on equivalence. He said that either it was trying to say that our rules should never change, which he described as dangerous, or that our rules should change whenever the EU changed its rules, which was “not acceptable”.
There is no doubt that the EU sees the UK as a threat to its way of doing things. It no longer has a leading financial centre within the EU and will struggle to create one, especially if its only weapon is protectionism. We have long been one of the leading financial markets in the world and I hope that we get our number one slot back now that we are unshackled from the EU. That may well take us into new areas of financial services; it should certainly lead to the dismantling of some elements of the EU’s rules that we never liked. The alternative investment funds directive is one clear example; Solvency II and MiFID are others. They never reflected what we regarded as important, and introduced rules which we regarded as unnecessary and cumbersome.
It would have been very easy for the EU to have granted us equivalence at the end of the transition period; we were completely aligned. However, there is a misguided belief in the EU that they can create a rival to the UK and that the best way of doing that is to make it difficult for UK firms to operate in the EU. My own view is that we should abandon any interest in equivalence. Even if we were to get a favourable decision, the EU has retained the right to remove any such decision at short notice. We know that decisions on granting or removing equivalence will not be made on technical merit. They will be political decisions designed to advance the EU’s financial services industry at the expense of the UK. I do not believe that a UK-based financial services operator could ever build a viable business model on the shifting sands of equivalence as determined by a body—the EU—which does not wish us well.
In addition, I do not think that it matters very much. We may find that some areas of our financial services as currently operated will become less profitable—for example, if the EU cuts off its nose to spite its face and denies Euro-denominated derivatives the advantages of London’s liquidity via UK clearing exchanges. Many UK banks and other financial institutions have already set up EU-based subsidiaries to carry out the business that was previously carried out under passporting. That is now water under the bridge—those subsidiary structures will carry on while the business is profitable and cease if it is not.
For these reasons, I believe that the amendments in this group are looking in the rear-view mirror. Of much greater importance is what plans the Government have to support and promote the future—
The Deputy Chairman of Committees (Baroness Fookes) (Con)
My Lords, there is a Division in the Chamber. The Committee stands adjourned for five minutes.
Baroness Noakes (Con)
As I was saying, my Lords, of much greater importance are the plans that the Government have to support and promote the future growth of our financial services sector. The amendments on international competitiveness debated on our first day in Committee are far more important than EU equivalence.
Baroness Neville-Rolfe (Con)
My Lords, I am delighted to follow my noble friend Lady Noakes. Like her, I was struck by the comments of the Governor of the Bank of England, and I feel she has given us a welcome dose of reality this evening.
I speak as a member of the EU Committee and its Services Sub-Committee. We have wrestled long and hard on the vexed question of the granting of equivalence by the EU, including the important issue of reciprocity, highlighted by the noble Baroness, Lady Bowles. I want to make three points and ask one question.
First, once one has decided to leave the EU, it makes little sense to be tied to its rules and regulations—in effect, as the Governor of the Bank of England has said recently, thereby becoming a rule taker without being able to make any input to the new rules. So we will have to plough our own furrow on financial services. But that does not stop us agreeing equivalence arrangements in areas where there is strong mutual interest such as central counterparties, known as CCPs, already temporarily approved, and perhaps insurance. We have granted equivalence to European banks and other bodies, as has been said, and the prospect of maintaining that equivalence gives us some leverage.
Secondly, I do not see why we should necessarily refuse equivalence to third countries which do not have similar legal and supervisory standards. Flexibility is important if we are to welcome investors here, and they may have different yet adequate regimes, bringing in innovation and diversity of offer, which could be valuable in the UK. Trade in services is absolutely vital to the future of this country.
Thirdly, I can see the value of some form of reporting to Parliament, as proposed by the noble Lord, Lord Tunnicliffe, in Amendment 100 and my noble friend Lord Hodgson in Amendment 105—although in different ways. Even on the EU Committee, we have had the greatest difficulty extracting information on the progress of negotiations on financial services, partly because this is in the hands of the Treasury and its officials, while the main spokesman has been my noble friend Lord Frost, who has led our negotiations across the board with such tenacity.
My question is this. How does my noble friend the Deputy Leader feel about the balance between UK-owned banks and financial service operators and their EU competitors now that we have granted equivalence and the EU, in the main, has not? Am I right in thinking that a German bank such as Deutsche Bank, a Dutch bank such as Rabobank or a French asset management firm such as Amundi is regulated in its own country and less subject to UK regulator bureaucracy and aggressive enforcement of something like MiFID than its UK counterparts? Is there any sense in which it is privileged, and is this true also of smaller operators? Does this matter to UK plc?
Baroness Kramer (LD)
My Lords, I shall begin by addressing Amendments 100 and 105, which would require reports that would be both useful and interesting. However, I want to pick up the point that was made by the noble Baroness, Lady Noakes, who essentially took the position—I understand its logic—“Why bother to seek equivalence from the EU?” I think she said, “They wish us ill and see a competitive advantage in not offering equivalence.” However, I do not think she listened carefully to my noble friend Lady Bowles, who comes with a great deal of experience from the EU. The point my noble friend made is that in the EU, which is a rules-based organisation —that is its absolutely core fundamental structure—it is quite hard to offer equivalence to a financial centre where those who are regulating it make it very clear that they want great flexibility to be able to make change very easily and with very little process. That is what we are doing with this Bill.
Essentially, we are removing the normal parliamentary processes that would have been engaged in the process of changing regulation and leaving it in the hands of the regulator, with, as we have all discussed, virtually no accountability to Parliament. It seems from what we read that a 12-week consultation would be about all that is required for a regulator to change the rules, compared with the process in the EU, which people may regard as cumbersome but which has with it extensive consultation, engagement and oversight, and which flushes out exactly what is associated with, what is involved with and what the consequences are of that rule change. We will now have light-touch rule change—that would be an accurate way to describe it. In an atmosphere where there is very little trust—the language certainly has not been that which would develop and promote trust—I can certainly see why the EU would be uncomfortable with the idea of offering equivalence in those circumstances. Therefore, it is not a determination to do us ill but, to a significant degree, some shock that change will happen so often that it will have very little idea of the rule base that applies in the UK and certainly will not understand its various ramifications.
However, in a sense it really does not matter. I find it quite shattering that we have a Government—the noble Baroness, Lady Noakes, seems to be aligned with them—who say, “We are really not interested in being able to sell our services into the second-largest economy on the globe”—whether measured by population or in terms of GDP. That is a huge and significant market. We have never been successful at selling financial services into the United States, partly because it has its own, very stalwart financial services sector. I suggest that selling financial services into China will be exceedingly difficult over many years. China will wish to develop its own financial centre; it has Hong Kong. We begin then to look at countries across Asia and in South America. However, I think we will find very shortly that they intend to develop their own financial centres. When I have talked to people in India, they would be willing to do some work here with people in the UK but they want to develop Mumbai. We are seeing a regionalisation of economic blocs, which will lead to a rise of significant financial centres in other locations across the globe. There is a real danger in dismissing with a wave of the hand the customers who sit on our doorstep, who have traditionally been our core customers, and saying, in essence, “It really doesn’t matter whether we are able to sell them services. Let’s look elsewhere.” I am not sure that “elsewhere” looks quite so promising.
What I found most interesting in this whole debate was a very different set of questions raised by my noble friend Lady Bowles. To me they were, if you like, the financial services equivalent of the chlorinated chicken question. As we go out and seek to sell our financial services more broadly, presumably, many of those locations will turn to us and say, “You can sell to us provided we can sell to you. We’re developing our financial sector and we would like to have access to your markets.” My noble friend was asking: what standards will we be using to determine that reciprocity? As I say, it is the chlorinated chicken question. We have not heard much—or anything, frankly—from the Government about what standards we will apply under those circumstances.
It seems to me that, when we assert that we can find markets all over the globe that will take the place of the EU—and that this can be done rapidly and very easily—we have to answer that question. Are we going to have to pay the price of providing reciprocity to financial centres whose standards do not meet our own? What are the consequences of that if those entities are then freely able to enter the UK market? We have a long history of concern about money laundering and market abuse. There are very serious questions associated with that; I would like to begin to hear some answers.
Lord Eatwell (Lab)
My Lords, I have been very struck by this particular debate and the positions taken by Members of the Grand Committee. I approach this question of our future financial services relationship with the European Union with a sort of historical perspective. In a way, the financial services industry in this country is unique in the history of financial centres in that it is a financial centre without any significant savings or economic hinterland. The great financial centres of history—be it Venice, Amsterdam, 19th-century London or 20th/21st-century New York—have thrived on a powerful flow of domestic and imperial savings, and have tended to fade when that flow has dried up.
The fact that the City of London has continued to thrive even as Britain has lost its Empire and the UK economy has lost its dominant position is no doubt due to a remarkable concentration of talent and entrepreneurship; to the remarkable luck of widespread access to financial markets around the world; and to becoming, as the noble Viscount, Lord Trenchard, pointed out, the financial centre of the European Union. The international liberalisation of the 1980s and the creation of the European single market gave the City access to that economic hinterland and the opportunity to provide financial services throughout an open market.
As we know, the openness of the European market for financial services to the UK is now in question. As this Bill makes clear, access that was previously open is now potentially closed and hanging on this delicate thread of equivalence. It is interesting to see that the Bill is nervous about equivalence. On page 65, we read that
“the FCA must consider, and consult the Treasury about, the likely effect of the rules on relevant equivalence decisions.”
On page 82, we read that
“the PRA must consider, and consult the Treasury about, the likely effect of the rules on relevant equivalence decisions.”
That nervousness is well founded. I agree with the noble Lords who have been critical of the European Union that the likelihood of equivalence being the foundation of successful financial activities for the City’s continuing growth in Europe is at least in great doubt. Indeed, just imagine the chief executive of a big international bank or an asset manager with a large number of employees in London telling the board of directors that they are planning their long-term investments on the shaky foundations of a political equivalence ruling by Brussels.
At the moment, the only thread that seems to be at least holding and maintaining the potential of access to a market of 500 million people is the memorandum of understanding, which was due in June but is still apparently debated. However, a draft that was leaked to the Politico website
“states categorically that equivalence findings remain unilateral decisions, meaning the U.K. would have no recourse if the EU opted to withdraw it.”
The draft does propose the creation of an EU-UK financial regulatory forum but this resembles the arrangement with the United States that is defined as “strictly informal”. I think that access will be diminished, perhaps significantly. That is the only certain conclusion we can make. Perhaps the Minister will tell us more about the progress of the memorandum of understanding when he sums up.
Earl Howe (Con)
My Lords, the noble Baroness, Lady Bowles, has taken us into an interesting topic area: regulatory equivalence.
The UK has long been a global leader in financial services. As we adapt to our new position outside the EU, it is essential that we continue to support a stable, innovative and world-leading sector. We have already considered the UK’s international standing in another debate. With these amendments, we are considering equivalence and the UK’s relationship with the EU in relation to financial services. I know that there is a lot of interest in this issue, so I will take this opportunity to provide an update on where we are, to the extent that I am able to do so at this point in time. Perhaps, though, I could begin by saying something about our approach to making these decisions.
Amendment 90 seeks to impose an obligation on the Government to make an equivalence determination only where they have determined that the relevant overseas jurisdiction has legal and supervisory standards equivalent to those of the UK. It also seeks to prohibit the Government granting an equivalence determination based only on an agreement to make determinations on a reciprocal basis.
I am happy to confirm that the Government are already committed to conducting their equivalence assessments of overseas jurisdictions on the basis that the relevant legal and supervisory framework of that jurisdiction provides equivalent outcomes to the UK’s. This is outlined in the guidance document on the UK’s equivalence framework which was published in November 2020.
In addition, an example of the legislative requirement for granting equivalence can be seen on page 35 of the Bill. It amends the money market funds regulation to allow the Treasury to make equivalence determinations and states:
“The Treasury may not make regulations under paragraph 1 unless satisfied that the law and practice of the country or territory imposes requirements on MMFs which have equivalent effect to the requirements imposed by this Regulation.”
There is a key point for me to make here. This is not a so-called “line-by-line approach”, where we require a country to have identical rules. We believe that compliance with internationally agreed standards and equivalent regulatory outcomes in different countries can be achieved in different ways and through different legal frameworks.
In that context, there is a further important point that I invite noble Lords to note: granting equivalence is a decision we make independently with no reciprocity requirement. The UK would not grant equivalence just on the basis of reciprocity but would always carry out an assessment to ensure that the other jurisdiction is equivalent. The Government must lay a statutory instrument in Parliament to make an equivalence decision. This will give all noble Lords the opportunity to consider and scrutinise Her Majesty’s Treasury’s decisions as part of the normal legislative process.
I turn to consider our relationship with the EU. I say to the noble Baroness, Lady Kramer, that there is no question of us dismissing this relationship with a wave of the hand or otherwise. Amendments 100 and 105 seek to impose obligations on the Government to report on the status of the EU’s considerations about UK equivalence and on the status of negotiations on the regulatory co-operation memorandum of understanding between the UK and EU. I have already said that the granting of equivalence is an autonomous matter for the UK, and this is equally true for the EU, so the Government are not in a position to report on what the EU may or may not be thinking at a given point in time, even if we wanted to.
The noble Baroness, Lady Bowles, characterised the UK regulatory system as a squidgy balloon and hence difficult for the EU to grapple with but, as I have previously set out, the EU is well used to assessing regulator rules and practice as part of its equivalence assessments, and we see no reason why it would not be able to assess the UK in the same way if the will is there.
However, I can provide an update on our own actions. In November, the Chancellor announced a package of equivalence decisions for the EU and EEA member states. We did this to provide clarity and stability for industry. My noble friend Lord Hodgson asked me a number of factual questions about the existing equivalence decisions between the UK and the EU. If he will allow, to ensure a full and accurate response, I am happy to write to him on those questions.
We are not ruling out further equivalence decisions for the EU in the future, and we continue to believe that comprehensive mutual findings of equivalence between the UK and EU are in the best interests of both parties. The Government remain ready and willing to work with the EU to achieve this. For their part, the EU has granted only minimal decisions for the UK. As per our joint declaration with the EU on financial services, which was agreed alongside the trade and co-operation agreement, we have agreed to establish structured regulatory co-operation on financial services by the end of this month. My noble friend Lord Trenchard will be glad to note that we believe we are on track to do that.
This co-operation will support engagement on issues of mutual interest, including facilitating transparency and dialogue around the process of adopting, suspending and withdrawing equivalence decisions, but I should be clear that it is not envisaged, in the joint statement or elsewhere, that the agreement of the MoU on regulatory co-operation will directly entail any new equivalence decisions. This MoU will be publicly available to Parliament after the conclusion of negotiations. I reiterate that the Government are committed to operating an open and transparent approach to equivalence with the EU, but I am afraid that the Government cannot provide updates on this discussion in real time.
My noble friend Lady Neville-Rolfe expressed concerns that we may have given EU firms some kind of advantage over UK firms. In the absence of clarity from the EU, the UK has acted to provide clarity and stability to industry, supporting the openness of the sector, and to deliver our goal of open, well-regulated markets, but these decisions should not be seen simply as altruistic. They will allow firms to pool and manage their risks effectively and to support clients on both sides of the channel in accessing our world-leading financial services and highly liquid markets, so there are benefits for the UK as well as for the EU.
Finally, Amendment 100 also seeks to impose a legal obligation on the Government to publish a strategy to provide security to UK retail investors in the event of equivalence being withdrawn. I reassure noble Lords that, as set out in the guidance document on the UK’s equivalence framework, the Treasury will seek to ensure that withdrawal of equivalence is undertaken in line with the principle of transparency. That means that the Treasury will endeavour to engage with interested parties as part of the process and will seek to provide Parliament with appropriate scrutiny. I say to the noble Lord, Lord Eatwell, that I recognise the importance of clarity and stability regarding the potential withdrawal of equivalence. When withdrawing an equivalence determination, it will be undertaken in an orderly and controlled manner to ensure that investors are protected.
The noble Lord, Lord Eatwell, made clear a similar concern in relation to the overseas funds regime, given that the provisions of the Bill also create a new equivalence regime there. I assure him that we do not envisage that in the event of equivalence being withdrawn investors would be forced to divest their investments in the fund, but instead that the fund should continue to service them. The Bill also includes a power so that the Treasury may take steps to smooth the transition for funds if equivalence has been withdrawn.
I realise that noble Lords might have wished for a slightly fuller account of our discussions with the EU on the MoU and equivalence issues, but I trust that the reasons for me being constrained on those matters are clear. I hope nevertheless that I have provided the Committee with a sufficient update on this topic and ask that the amendment be withdrawn.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
I have received a request to speak after the Minister from the noble Lord, Lord Northbrook.
Lord Northbrook (Con) [V]
My Lords, since we are already diverging from the EU—for instance, with regard to lightening new share-listing rules—does the Minister believe that equivalence does not really matter because Her Majesty’s Government believe that the UK will make up the lost revenue from the passporting system in this and other financial areas?
Earl Howe (Con)
My Lords, I hope that my response to this debate has indicated that, of course, we regard mutual determinations of equivalence as desirable. However, I have also made it clear that there is advantage to both the UK and the EU in our adopting an autonomous position to take decisions for ourselves in this area. Of course, I am hopeful that our discussions with the EU will progress in a helpful way, and I assure my noble friend that, as soon as I have news that I can vouchsafe to him and other noble Lords, I shall certainly do so.
Baroness Bowles of Berkhamsted (LD) [V]
My Lords, I thank all noble Lords for what has turned out to be a very interesting debate. For once, the crafting of my probing amendment produced exactly the responses that I was hoping to obtain. Here is the thing: in many respects, I can agree with everybody, even though noble Lords were obviously coming from different positions.
The noble Viscount, Lord Trenchard, and the noble Baronesses, Lady Noakes and Lady Neville-Rolfe, think that we just have to get on and plough our own furrow. The Minister has said that that is essentially what we are doing, but we are maintaining the hope or ambition that the EU will, one day, come round and finally realise that there is mutual advantage in equivalence decisions or whatever one wants to call them. In my opening speech, I said that I had sometimes failed to persuade it of that, and, ultimately, we already see the pattern: once it realises it needs it, we will get it, but not before. It will not concede a general mutual benefit, which is one of the big differences between the UK and the EU. I fully support the line that the UK is taking, which is to be open and to show that openness works. There lies the power of London—and common law has a hand in it as well.
The Minister has been clear. On the adoption of the squidgy balloon, as I termed it, I did not mean that in a disrespectful way; I was just trying to say that the EU looks for something concrete, and we have a squidgy balloon, although the outcome might end up being around the same. It has difficulty with that, but we are proceeding with the squidgy balloon, and, therefore, we will have to take in our stride whether we get equivalence or not. I think that that is what the Minister has said, quite fairly and clearly.
However, he has confirmed that standards will be maintained. I knew that I was broadly quoting from guidelines in the first part of my amendment; that was not a happy accident. However, there was confirmation that there will always be this looking at the outcomes and what is supporting that, which applies no matter the route we take to equivalence or whatever else it is called—as the noble Baroness, Lady McIntosh, explained, there are various routes to achieving the mutual recognition, however it comes about.
From my perspective, this has ended up being quite a satisfactory debate—probably nobody is happy, but we are where we are. On that basis, I beg leave to withdraw my amendment.
Baroness Penn (Con)
My Lords, this may be a convenient moment for the Committee to adjourn.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
That concludes the work of the Committee this afternoon. As always, I remind Members to sanitise desks and chairs.
House of Lords
Introduction: Lord Udny-Lister
Arrangement of Business
The Lord Speaker (Lord Fowler)
My Lords, 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’ answers are also brief.
Pension Credit
(3 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Foulkes of Cumnock
To ask Her Majesty’s Government what action they are taking to increase the take up of Pension Credit.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Stedman-Scott) (Con)
The DWP continues to use available channels to promote pension credit and reach potential recipients, their families and friends. This includes using proactive press activity and social media posts to encourage older people to check whether they are eligible. The department is currently writing to over 11 million pensioners in Great Britain about the increase in their state pension from April. The accompanying leaflet highlights that an award of pension credit can provide access to other benefits, such as housing benefit or a free over-75 TV licence.
Lord Foulkes of Cumnock (Lab Co-op) [V]
My Lords, I am grateful to the Minister, but does she recall that when we met her and the Pensions Minister last November they promised much more action on pension take-up? We still have nearly 1 million people who are entitled to pension credit but not claiming. They are now losing the TV licence as well. Please will the Minister meet again the Peers who met her before, with the BBC, Age UK and Independent Age, so that we can plan a new more dynamic and innovative take-up campaign?
Baroness Stedman-Scott (Con)
I understand the noble Lord’s desire to move speedily on this and I share that desire. Following our engagement session in November, policy officials met the BBC and the director of policy then had a meeting on 17 December. This was followed by a working-level meeting with the DWP and BBC on 11 February. On 29 March, the Minister for Pensions and I will meet the BBC director-general. Of course we will meet Peers again. We are open to dialogue and, in early May, there will be a stakeholders’ meeting including people from other industries.
Baroness Drake (Lab) [V]
My Lords, it is clear that the numbers in pensioner poverty have risen. Benefit take-up rates by poor pensioners are low—37%, or 1 million, do not claim the credit. They are now being billed for a TV licence that they should not have to pay for and that they cannot afford, and they will get even poorer. The Government handed over policy on pensioners and the licence fee to the BBC, but they did not hand over their responsibility for the poorest pensioners. I put again the question asked by my noble friend: will the Minister give a backstop date by which there will be a meeting of the Peers with the voluntary bodies involved with the pensioners, the BBC and DWP, so that all the parties in the room can look at this challenge that we need to face? Secondly, will the Minister confirm that she will consider innovative changes to get that take-up rate increased, such as auto-enrolling the poorest pensioners?
Baroness Stedman-Scott (Con)
I assure the noble Baroness that the Government are committed to action that helps to alleviate levels of pensioner poverty. I regret that I cannot confirm a backstop date, but I can confirm that we will meet Peers and that we will use all the tools available to us for innovation to try to help this group access pension credit.
Lord Empey (UUP) [V]
My Lords, this is not a new phenomenon. While the Question specifically refers to pension credit, we know that successive Governments have not been able to achieve adequate take-up of benefits generally. Will my noble friend suggest to her colleagues that a fundamental review of how benefits are rolled out needs to take place, because public policy is defeated if there is not adequate take-up? Secondly, will she tell the House whether her department takes into account non-take-up amounts in the budget, so that there is a regular build-in of non-take-up by her department?
Baroness Stedman-Scott (Con)
I will certainly take the suggestion of a review of benefits back to the department. I am afraid that I will have to write to the noble Lord about the issue of non-take-up as far as the budget is concerned.
Baroness Altmann (Con)
My Lords, I am delighted that the Government have included information about pension credit when writing to pensioners about their state pension increases. Will my noble friend tell the House whether that includes mention of the entitlement to all the other benefits that are passported to by pension credit? Will she confirm, if necessary in writing, whether my estimate of around a further £8,000 a year is potentially available to pensioners on pension credit—they may be getting very little of that benefit—in council tax, housing benefit and, indeed, £140 off their electricity bill in warm home discounts, which also suggests that the electricity companies may have some obligation to help on pension credit take-up?
Baroness Stedman-Scott (Con)
On the last point that the noble Baroness raises, I am happy to go back and find out the information. I will write to her and place a copy of my letter in the Library. I emphasise that our meeting with stakeholders in early May will include energy companies. I will certainly take her idea back to the department.
Baroness Janke (LD) [V]
Does the Minister believe that take-up campaigns fully involve local agencies, such as the charitable and voluntary sector and more particularly local government, which provide many essential services for older people? What plans are there for further involvement of such local agencies in future take-up campaigns?
Baroness Stedman-Scott (Con)
I reiterate that we continue to make best use of all the available channels to make sure that we can reach those people and confirm to them their eligibility, particularly family and friends. I am not aware at the moment of anybody making a suggestion about local agencies, but through our stakeholder engagement we have certainly raised this point. I will take back the local government issue to the department.
Baroness Eaton (Con) [V]
Many elderly people who may well be eligible for pension credit find that applying online and even by telephone daunting. Will my noble friend explain why there is no automatic awarding of pension credit?
Baroness Stedman-Scott (Con)
Whether a person is eligible for pension credit and how much they can get is, as with other means-tested benefits, determined by their financial and personal circumstances, which can be complex. The noble Baroness’s point about technology and vulnerable and elderly pensioners is well made. We try to encourage stakeholders who represent this group, family and friends to do it on their behalf. They can also use the government telephone number.
Baroness Greengross (CB) [V]
My Lords, would it not make more sense for the Government to use state resources to support increasing the take-up of pension credit, rather than continuing the policy of the triple lock on state pensions, given that so many people over state pension age continue to work full time or have other incomes? Would taxpayer funds not be better spent promoting pension credit widely, which would increase state assistance for older people in financial need?
Baroness Stedman-Scott (Con)
The noble Baroness has obviously had a great career supporting, promoting and championing pensioners in need. On the use of taxpayers’ money, I am not aware of any plans to do as the noble Baroness suggests.
Baroness Sherlock (Lab) [V]
On International Women’s Day, we should note that women pensioners are more likely to be poor than men. A DWP official told the Scottish Social Security Committee that if all poor pensioners claimed pension credit, housing benefit and the council tax reduction, pensioner poverty would reduce to almost zero. The DWP take-up campaign last year has not worked. Peers keep asking Ministers to meet with us, together with charities, because we need more energy and creativity behind a campaign. I do not understand why the Minister keeps side-stepping that request. Can she explain that?
Baroness Stedman-Scott (Con)
I am really not aware that I or any of my colleagues have side-stepped meeting with Peers to talk about creativity, and I do not agree with the noble Baroness on that point. There will be a meeting where people will have the opportunity to discuss and put forward their ideas. I am sure that the department will consider them carefully.
The Lord Speaker (Lord Fowler)
My Lords, the time allotted to that Question has elapsed. We now come to the second Oral Question.
Covid-19: Care System
(3 years, 8 months ago)
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The Lord Bishop of Worcester
To ask Her Majesty’s Government what assessment they have made of the impact of the COVID-19 pandemic on the quality of provision for teenagers in the care system.
The Parliamentary Under-Secretary of State, Department for Education and Department for International Trade (Baroness Berridge) (Con)
My Lords, throughout the Covid-19 crisis, the Government have worked closely with local authorities to help ensure that they continue to meet their duties to safeguard and promote the welfare of children and young people in care, with particular regard to their education, health and well-being. Some £4.6 billion of funding has been made available to support councils, with a further £1.55 billion announced as part of the spending review.
The Lord Bishop of Worcester
My Lords, I thank the noble Baroness for her Answer and for the good work that has been done. However, I am concerned that Barnardo’s declared a state of emergency in June last year as a result of a 44% increase in the number of children needing foster care referred to it. According to one investigation, more than 8,300 children were placed in unregulated, semi-independent accommodation last year. Many of those—more than one-third—were outside their local authority area. What steps are the Government taking to ensure that teenagers and older children in care are offered family-based provision, where they are more likely to thrive?
Baroness Berridge (Con)
My Lords, the Government have announced that the use of unregulated accommodation for under-16s will be banned as of September this year. However, there are examples of those aged 16 and over for whom a semi-supported or independent living arrangement is the best placement. Local authorities make individual decisions but, for instance, many unaccompanied asylum-seeking children who come to this country at age 16 may state a preference—which is taken into account—to be in semi-supported or independent accommodation.
Baroness Fall (Con) [V]
My Lords, years ago the Government published a Green Paper in response to the worrying surge of mental health issues in children and young people and those in care. Today, a year after lockdown, that surge shows no sign of abating: quite the opposite. On this International Women’s Day, I draw attention to the very worrying rise of anorexia nervosa. Those who need help are often languishing on waiting lists. Has progress been made on establishing a new national waiting time and, if so, what is it?
Baroness Berridge (Con)
My Lords, the Government are indeed concerned about the reported rise in eating disorders during the lockdown period. Only last Friday, we announced a further £79 million of funding to expand mental health support for children and young people. We have announced an early intervention service in 18 sites for those aged 16 to 25, meaning that people coming forward should be contacted within 48 hours and treated within two weeks.
Lord Ramsbotham (CB) [V]
My Lords, bearing in mind the number of young people in the care system who end up in the criminal justice system, can the Minister please tell the House whether the Government are concerned about the impact of the pandemic on their education and training?
Baroness Berridge (Con)
My Lords, the Government are indeed concerned about those who end up in the youth justice system and their education. The noble Lord will be aware of the provision in secure children’s homes, where young people are placed by the local authority or through the criminal justice system. He will be pleased to hear that when Ofsted recently inspected some of those homes, it commented positively about the provision of education for that cohort of vulnerable young people.
Lord Watson of Invergowrie (Lab) [V]
My Lords, the Children’s Commissioner reported in 2019 that teenagers in care are significantly more vulnerable than younger children to issues such as child sexual exploitation, gangs and trafficking. She also called for a ban on any child under the age of 18 being placed in an unregulated setting. Last week, the Secondary Legislation Scrutiny Committee of your Lordships’ House expressed concern about older teenagers being left exposed in such settings. Teenagers in care are more likely to have complex needs and therefore require care rather than just support. Can the Minister say why unregulated accommodation is unregulated? Why do the Government believe that it can ever be appropriate for vulnerable young people to be placed in such accommodation?
Baroness Berridge (Con)
My Lords, forgive me if I stated this incorrectly: it is going to be banned for those aged 16 and under but still used, when assessed as appropriate by the local authority, for those aged over 16. There will, however, be national minimum standards for that provision, which is currently unregulated, to ensure that the standard is appropriate. Those with complex needs were, as vulnerable children and young people, offered a school place throughout the pandemic. We are looking to increase Ofsted’s enforcement powers in relation to unregistered children’s homes.
Baroness Walmsley (LD) [V]
My Lords, teenagers with learning disabilities in residential care homes have not had as much focus as older people. It was months before these homes received enough PPE, and testing was very slow. There was no comprehensive programme for their care and education. What measures are now in place to ensure equality of care and resources between younger people and older people in care homes?
Baroness Berridge (Con)
My Lords, the children’s homes that young people are placed in have now been encouraged to register for the national portal for Covid testing, so they should have that available. As I said, those young people have been offered a school place during this time and have also had access to the remote educational provision of laptops, so that they can keep in touch with social workers.
Baroness Rawlings (Con) [V]
My Lords, it is good that schools have returned today, but can HMG make certain that more—preferably outdoor—sports are part of the £6 billion which she mentioned is being provided for teenagers in the care system? This is vital, especially after the impact of Covid-19.
Baroness Berridge (Con)
My Lords, it was indeed a wonderful sight this morning to come into work and see children walking down the road to go to school. I can assure noble Lords that all the activities outside of school, such as sport and PE, are back for our young people, and all those children who are looked after have an education plan which includes out-of-school setting sport and other enrichment activities.
Lord Moynihan (Con)
Does the Minister recognise that teenagers in care need appropriate help at key stages of transition and yet, all too often, children and young people are experiencing barriers to learning, especially as we emerge from Covid? This is particularly true if they do not receive opportunities to participate in art, sport and cultural activities, thereby falling behind and becoming increasingly disaffected. Does my noble friend agree that we should be prioritising these activities so that young people in care can be provided with the necessary tools for as happy and healthy a lifestyle as possible?
Baroness Berridge (Con)
I cannot but agree with my noble friend that the return to school enables all those activities, within certain PHE guidance, to be continued. Many of the specific outreach programmes, such as the music hubs, are weighted towards disadvantaged students. The Government have thought about transition points and are trying to avoid them; my noble friend will be aware of the Staying Put programme which allows 18-year-olds in foster care to stay where they are, and the foster care placements are funded to provide that ongoing provision. That has been a growing success year on year.
Lord Mackenzie of Framwellgate (Non-Afl) [V]
My Lords, the noble Baroness will agree that teenagers in unregulated care are very vulnerable, and proper placement, with regular contact and management of care provision, is crucial. Has the lockdown had any effect on this? She will also be aware of county lines gangs deliberately targeting young people in care, so is she satisfied that supervision and contact with the youngsters in such accommodation is sufficient in all cases?
Baroness Berridge (Con)
My Lords, I am not able to give that kind of guarantee, but from the information I have, around seven in 10 of looked-after children were in regular touch—meaning every four weeks—with their social workers. As the noble Lord will be aware, there are specific programmes, including an investment of £70 million by the Home Office in violence reduction units. We are aware that all children are vulnerable, but that is why this particular cohort has always had a school place offered to them—that is their biggest protective factor.
Lord Farmer (Con)
My Lords, what are the Government doing to ensure that teenagers in the care system have supportive relationships during this time of restriction, especially if they are in unregulated accommodation? What is being done to ensure that they are staying in good health, by eating well and getting exercise, which are so vital for well-being? In other words, what is being done to ensure that these young people have a sense that someone actually cares for them?
Baroness Berridge (Con)
My Lords, for young people in children’s homes and similar accommodation, keeping in touch with a social worker is important, but they are expected to attend school, because that continuity of relationship is very important. I am pleased to say the holiday activities funds, which are important to that cohort of children and young people, will be available in every local authority area now.
The Lord Speaker (Lord Fowler)
My Lords, the time allowed for this Question has elapsed. We now come to the third Oral Question.
Covid-19: Working Mothers
Baroness Donaghy
To ask Her Majesty’s Government what assessment they have made of the report by the TUC Working mums: Paying the price, published on 14 January.
Baroness Bloomfield of Hinton Waldrist (Con)
The Government are sympathetic to the challenges working parents have faced during the pandemic and note the content of this excellent TUC report. The coronavirus job retention scheme was introduced to ensure that firms could keep millions of people in employment. Whether to use the CJRS remains a business decision for employers to take in consultation with their employees. It is not for the Government to decide whether an individual firm should furlough its staff.
Baroness Donaghy (Lab)
It is right that we should celebrate International Women’s Day today and celebrate women’s achievements, although some might think we have gone back to the 1950s. Low pay, job insecurity and an unequal society predate the pandemic but are exacerbated by it. Seven out of 10 women being rejected for furlough is one example. The TUC report received 50,000 responses, covering mental health, fear of being selected for redundancy and paid leave for carers. The Government should be producing a gender impact assessment on all their policies but rarely do so. How will the Minister make sure that this happens in future?
Baroness Bloomfield of Hinton Waldrist (Con)
The noble Baroness is right to point out a number of very shocking statistics in the TUC report. We continue to actively monitor the impact of Covid-19 on the labour market, particularly on women. All departments ensure that equality considerations are at the heart of their decision-making. This is key to the Government’s commitment to delivering equality of opportunity for all as well as to complying with legal requirements under the public sector equality duty. The Government Equality Office, based in the Cabinet Office, runs a number of targeted programmes for women to support returners to work and others with protected characteristics, including minority groups.
Lord Hendy (Lab) [V]
Does the Minister agree there is an urgent need for legislation to create a comprehensive scheme for working parents which, in addition to properly paid maternity and paternity leave, provides for shared paid leave and flexible work arrangements in relation to childcare, care for family members and family emergencies, requires employers to make reasonable adjustments for non-disabling, non-permanent conditions, such as menopause, and gives adequate protection against dismissal or detriment for seeking to enjoy these rights?
Baroness Bloomfield of Hinton Waldrist (Con)
The noble Lord makes some interesting points. The shared parental leave and pay scheme already gives working families choice and flexibility on who cares for their children, at least in the first year. Following consultation, we are evaluating the views from over 3,000 parents, and our analysis will be published. There are protections against detriment, and parents on shared parental leave are protected against unfair dismissal. I note his comments about requiring legislation, and this will be part of the considerations in the consultation.
Lord Addington (LD)
My Lords, does the Minister agree that unless findings are presented so the general public can look at them, you are not going to get the best out of them regarding pressure brought to bear so that they are fitted into any new legislation? Can the Minister give us any reassurance that whatever is found out when we look back at this experience will be brought forward in a way the public can access easily?
Baroness Bloomfield of Hinton Waldrist (Con)
The noble Lord is right to draw attention to the sorts of lesson we ought to be able to focus on in this report, which had such an enormous response. It is personally frustrating that we do not seem to have moved far from the conclusion reached by the Women in Work Commission in 2004. Both reports call for greater flexibility in working practices, so the 2019 manifesto to encourage flexible working and consult on making it the default, unless employers have good reason not to do so, should be welcome. This adds to the rights of employees with 26 weeks’ continuous service, who can already ask for flexible working, which is one of the keys to encouraging women in the workplace.
Baroness Wyld (Con)
My Lords, on this International Woman’s Day, there were an awful lot of exhausted-looking mums on my first school run back this morning—there were some dads, but it was mainly mums. We need to tackle the structural as well as the cultural barriers that mean that men are less likely to take parental leave or request flexible working. The Government are working with a range of employers; the Minister has spoken about employer-led initiatives, including the Build Back Better Council to drive economic recovery for all. Can my noble friend say how this will include helping working families to achieve a better balance?
Baroness Bloomfield of Hinton Waldrist (Con)
My noble friend is right; having already mentioned the call in the manifesto for greater flexibility in working practices, the Build Back Better Council is bringing together a broad range of business leaders who will work with the Government to boost job creation generally. Investing in skills is the single most effective way of driving productivity. Employers know that if they fail to support working mothers, they lose a talented and experienced workforce. To ensure that equality continues to be central to all policy-making, an integrated, joined-up equality hub is being is being created in the Cabinet Office, at the very heart of government.
Baroness Deech (CB) [V]
My Lords, the words “women”, “mothers” and “children” were not mentioned in the Budget. I suspect that the men making the decisions that affect women workers during lockdown have non-working wives at home and/or nannies. Will the Minister take steps to ensure fairness for self-employed women on maternity leave? If they take maternity leave, this cuts down the assessment of their average profits over three years, so that the 75,000 women who take maternity leave have lost a proportion. They have to be taken into account.
Baroness Bloomfield of Hinton Waldrist (Con)
The Government pay careful and due regard to the need to eliminate unlawful discrimination and advance equality of opportunity through our policies, including the Self-employment Income Support Scheme. We have made changes to that scheme, so that if a woman had a child in 2020 which meant that they did not return a 2020 tax return, they are now carved into, I believe, the fourth SEIS scheme. We continue to actively monitor the impact of the pandemic on all women and have taken action to avoid negative impacts. For example, we passed legislation ensuring that mothers are not financially disadvantaged when starting their maternity leave while on furlough.
Lord Bassam of Brighton (Lab) [V]
My Lords, it is timely that we debate the TUC’s excellent report today, on International Women’s Day and as children return to school. As the noble Baroness, Lady Wyld, said, mums are exhausted after weeks of balancing home-schooling and work. It is clear that women have been disproportionately hit by the pandemic, taking on more childcare and seeing their mental health suffer. As the noble Baroness, Lady Deech, said, in the Budget, these everywhere heroes did not even rate a mention. How will the Government ensure that working mums and women in general will share the benefits of the recovery? Do the Government have a plan?
Baroness Bloomfield of Hinton Waldrist (Con)
We have laid out a number of schemes, and I believe that we have rolled out unprecedented levels of economic support to those who need it most, regardless of gender. That includes sectors that employ very large numbers of women, such as retail and hospitality. The Government are continually reviewing the effectiveness of the support, and departments carefully consider the impact of their decisions on those sharing protected characteristics. This is in line both with their legal obligations and with the Government’s strong commitment to promoting fairness. Of course, men are impacted too; indeed, the latest figures show a higher redundancy rate for men. That is why we are committed to ensuring a fair recovery for all.
Baroness Uddin (Non-Afl)
My Lords, as noble Lords have detailed, statistics are unequally regressive. It is well known by the Government, and corroborated by the TUC, Mumsnet, a Muslim Women Connect report and surveys, that all women—and particularly those of minority heritage—are facing adverse challenges in the workforce and are being forced out or leaving the workforce and going into traditional roles. This is not only due to historical neglect and barriers to progress but often due to children, childcare responsibilities and discrimination compounded by the lockdown period. As we mark another year of commending women’s progress, what action will the Government commit to take in undertaking a gendered approach in their economic recovery plan to foster and promote opportunities for all women, regardless of barriers of race, colour, faith and abilities, and pledge to realise their fullest potential within their choice of career or family?
Baroness Bloomfield of Hinton Waldrist (Con)
The noble Baroness raised a number of important issues. I spent a lot of the weekend trawling through the Mumsnet findings, which showed that school closures have made balancing work and childcare particularly challenging for all working mothers. As for support for Muslim women, the Government Equalities Office has awarded grants to a number of organisations in the private sector. Over 25 returner programmes have been launched, and those with protected characteristics—such as women and black and ethnic minorities—have benefited from these programmes.
The Lord Speaker (Lord Fowler)
My Lords, I regret that the time allowed for this Question has elapsed. We now come to the fourth Oral Question.
Women in Elected Office
(3 years, 8 months ago)
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Baroness Gale
To ask Her Majesty’s Government what steps they are taking to increase the number of women holding elected office in the United Kingdom.
The Parliamentary Under-Secretary of State, Department for Education and Department for International Trade (Baroness Berridge) (Con)
My Lords, we have more women MPs than ever before, making up 34% of the other place, and 35% of local councillors are women. But we must ensure that women have an equal voice in the decisions that affect them. The Government cannot mandate who political parties select as candidates, and it is for them to ensure that their selection processes are responsive to known barriers and lead the way in improving women’s representation—especially today, on International Women’s Day.
Baroness Gale (Lab) [V]
Does the Minister agree with me that the barriers which prevent women seeking elected office include abuse and discrimination, as well as elected institutions being seen as unfriendly to women? Will she commit to doing all she can to ensure that the sunset clause of the Sex Discrimination (Election Candidates) Act 2002, allowing an all-women shortlist, is extended beyond 2030, and that Section 106 of the Equality Act 2010 is implemented? This would go some way to ensuring that our elected institutions look like the people they represent.
Baroness Berridge (Con)
My Lords, the Government keep all the uncommenced sections of the Equality Act under review, and in the run up to 2030, I am sure that there will be a review of whether to extend that. We all have a role to play when disagreement between elected representatives goes from disagreement to abuse and discrimination. We all have a role to speak out to defend our colleagues of whatever political persuasion.
Baroness Hodgson of Abinger (Con) [V]
My Lords, as we celebrate International Women’s Day, we acknowledge that progress has been made in this area—but there is still much more to be done. Many women are put off coming forward by the tone of British politics and the hostility that women politicians receive. What more can be done to make national politics less aggressive and more inclusive?
Baroness Berridge (Con)
My Lords, I can state only that during this pandemic, when we have used a remote Parliament, it seems that our tone of engagement here—and perhaps in the other place—has changed. But I reiterate that we all have a role to play, as elected or appointed representatives, when we see colleagues being abused or mistreated, whether it is in person or on Twitter. In a way, we must put aside our party-political allegiances and defend each other, otherwise women and others may not come forward for election.
Baroness Stuart of Edgbaston (Non-Afl) [V]
My Lords, for 20 years I had the honour of representing Birmingham Edgbaston, which has an unbroken record of being represented by a woman MP since 1953. I was succeeded by the first woman Sikh MP, Preet Gill. Standing for elected office is a habit that should be encouraged as early as possible. Will the Minister therefore undertake to ensure that every school, including primary schools, is expected to have an elected school council?
Baroness Berridge (Con)
My Lords, it has been excellent to see the development of school councils over recent years. It is not something that the Government would mandate but they do want to see it encouraged. Many schools and colleges run mock general elections, and it has been encouraging, in normal times, to see the number of schoolchildren who come to visit Parliament and are subsidised to do so.
Baroness Wilcox of Newport (Lab) [V]
Last Friday, the WLGA council recognised the outcomes of the cross-party working group on diversity in democracy that I set up as leader, in 2018. The council agreed to encourage all political parties to commit to proactive and co-ordinated activities to improve diversity in local government democracy. It further agreed a declaration by July 2021 from councils in Wales to become diverse councils, providing a public commitment to improve diversity and agree an action plan ahead of the 2022 local elections. This work by local government in Wales is an excellent example of proactively engaging women to hold elected office. Would the Minister recommend that the LGA take a similar approach in England? I have the full report, which I can send to the Minister.
Baroness Berridge (Con)
My Lords, it is pleasing to note that nearly half of the members of the Senedd are women, and we support and encourage the LGA, which is leading a Be a Councillor campaign. During the pandemic, I think that even the parish council in Handforth in Cheshire has inadvertently done its role in encouraging many people to get involved in very local politics.
Baroness Thornhill (LD)
It is very well documented and has been said that one of the main issues for women when they eventually get to this place is the culture. As the Minister herself just said, challenging it is very important. I welcomed the Valuing Everyone training. I found it eye-opening and very challenging—quite rightly so. But could the Minister tell us what steps are being taken to encourage and enable those who have not yet attended to do so and, indeed, confirm whether it is a breach of the Code of Conduct to refuse to do so?
Baroness Berridge (Con)
My Lords, I enjoy standing here at the Dispatch Box answering on behalf of the Government, but I am careful not to tread on the sovereignty of Parliament as it agrees its procedures here. I will say that I personally did the Valuing Everyone training and learned much through it.
Baroness Goudie (Lab) [V]
I ask the Minister to go to the Prime Minister because, during his tenure, women have been overlooked greatly, including in the Cabinet. We should ask the Prime Minister to have an equal 50:50 Cabinet and for his party to have all-women shortlists—as we have asked for a number of times—as the other two main parties have.
Baroness Berridge (Con)
My Lords, with the recent appointment of my noble friend Lord Frost, 22% of Cabinet Ministers are women. The previous Prime Minister, the right honourable Theresa May, holds the record as 40% of her appointments were women. I believe the current Prime Minister is on 32% and I hope that will be a rising trajectory.
Lord Lucas (Con) [V]
I echo what other noble Lords have said about the climate of abuse being one of the main reasons why women do not come forward, particularly to local councillor positions. “I would not do it to my family” is a very common remark. Is there anything the Government can do to help to enable us to know what is going on and to see the abuse that is happening? I think that, if it were more visible, there would be more action against it.
Baroness Berridge (Con)
My Lords, as I have mentioned, much of the abuse is online. The Government have committed to introducing the online harms Bill, which will provide the framework around which those platforms will be regulated. There is also a DCMS-led review conducted by the Law Commission looking at how we need to potentially update legislation to tackle abusive behaviours online. The Government have also committed to introducing a new electoral sanction against intimidation. But, as I say, I hope that the legislative framework around online harms will affect the culture of how people engage with one another online.
Lord Browne of Ladyton (Lab) [V]
My Lords, shamefully a recent survey of MSPs revealed that 46% of women had received death threats, 29% threats of sexual violence and 75% threats to themselves, their family or staff. Women disproportionately are targeted and are the sole victims of threats of sexual violence. Social media, the source of much abuse, could deploy algorithms to reduce this content but does not. Last week we heard that operators are frustrating the efforts of police to prosecute racist abuse. Will the online harms Bill include provisions to deal with their failures and provide agents?
Baroness Berridge (Con)
My Lords, the online harms Bill is designed to look at those platforms and ensure that they have a duty of care placed on them—that is the current proposal. However, the behaviours that the noble Lord outlined are mostly criminal and therefore can currently be dealt with. We know that many police forces have been more engaged in helping elected representatives, their families and their staff when they receive those kinds of threats.
Baroness Bakewell of Hardington Mandeville (LD) [V]
My Lords, when first elected to local government, I was one of several women with school-age children. We were a tough bunch and needed to be. However, others were not coming on behind us. The times of the meetings, the lack of adequate financial recompense and the cost of child or adult care all militate against women taking part. It is time for positive discrimination to ensure that women have parity of representation at all levels. What are the Government doing to ensure that this happens?
Baroness Berridge (Con)
My Lords, the Government recognise that having a diverse group of elected representatives in our country is important, but the political parties have a key role to play here to ensure that candidates who are selected are able to deal with the particular barriers that they face. There has been a particular emphasis on a fund called EnAble, which was announced to allow disabled people to stand. So institutions need to look at their working practices, as the other place has done over the last 10 years or so.
The Lord Speaker (Lord Fowler)
My Lords, the time allowed for this Question has elapsed and it brings Question Time to an end.
Arrangement of Business
The Deputy Speaker (Lord Alderdice) (LD)
My Lords, the Hybrid Sitting of the House will now resume. I ask Members to respect social distancing.
Hong Kong: Democracy Movement
(3 years, 8 months ago)
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Lord Alton of Liverpool
To ask Her Majesty’s Government what representations they are making to the government of Hong Kong regarding the mass arrests of leaders of the Hong Kong democracy movement.
Lord Alton of Liverpool (CB)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare my interests as vice-chair of the All-Party Parliamentary Group on Hong Kong and as a patron of Hong Kong Watch.
The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)
My Lords, as my right honourable friend the Foreign Secretary made clear in a Statement on 1 March, the decision to charge 47 politicians and activists under the national security law is another deeply disturbing step. It demonstrates in the starkest way that the law is being used to stifle political dissent rather than restore security, which China claimed was the law’s intended purpose. Officials in Hong Kong raised our concerns with the Chinese Ministry of Foreign Affairs on 2 March, and with the Hong Kong Special Administrative Region Government on 5 March.
Lord Alton of Liverpool (CB)
My Lords, I thank the Minister for that reply. The 47 which he has just referred to brings to more than 100 the arrests now made under the Chinese Communist Party’s draconian national security law, and all of Hong Kong’s pro-democracy leaders are either in jail, in exile or on trial. Does he agree with the noble Lord, Lord Patten, who said that this wave of mass arrests is
“a continuing and brutal danger to all who believe in free and open speech”,
and will he relay to the Foreign Secretary that this House wants sanctions imposed on those responsible, whether Magnitsky-style sanctions or a bespoke regime such as that developed for Myanmar, even before the military coup there? The time for words is over; the time is now surely for action.
Lord Ahmad of Wimbledon (Con)
My Lords, let me assure the noble Lord that my right honourable friend the Foreign Secretary is very much aware of the strong sentiments and views of your Lordships’ House. I update my colleagues in the FCDO regularly on our debates and discussions, not just on this issue but on every issue. Specific to the noble Lord’s point about sanctions, he will of course know that I cannot comment on future designations. But we have taken specific steps on the situation in Hong Kong, as I am sure he will note, including the provision, which I believe was first proposed in your Lordships’ House, on the important issue of BNOs.
Baroness Mallalieu (Lab) [V]
My Lords, British judges have continued to sit as non-permanent judges in the Hong Kong Court of Final Appeal as recently as January of this year, and the Chinese Government continue to point to them as proof that the Hong Kong legal system is fair and independent. In view of increasingly repressive legislation and arrests under it, what is Her Majesty’s Government’s present view of the appropriateness of our judges continuing to sit in that court?
Lord Ahmad of Wimbledon (Con)
My Lords, as the noble Baroness acknowledges, British judges have played an important role in supporting the independence of Hong Kong’s judiciary over many years, and we hope that this can continue. However, as she also rightly points out—and I agree—the national security law now poses real questions for the rule of law in Hong Kong and the protection of fundamental rights and freedoms. It is therefore right that the Supreme Court continues to assess the situation in Hong Kong, and it is doing so in direct discussion with the Government.
Baroness Northover (LD)
Does the Minister agree with his colleague, the noble Lord, Lord Patten of Barnes, when he says:
“This completely destroys the pledge of one-country, two-systems”?
Will the Government now consider offering a bespoke scheme for young human rights activists from Hong Kong who are not covered by the BNO scheme?
Lord Ahmad of Wimbledon (Con)
My Lords, irrespective of where we sit in your Lordships’ House, I believe we all acknowledge the immense insight and expertise of my noble friend Lord Patten on matters pertaining to Hong Kong. On the noble Baroness’s proposal, we are currently focused on the important issue of BNOs. That scheme has started and is running well. On the broader issue, we call out for the continued freedoms of all citizens in Hong Kong.
Lord Garnier (Con)
My Lords, I agree with the noble Lord, Lord Alton. The Government have, in the past month, announced asset freezes and travel bans on 19 senior military and government figures in Myanmar, following the military coup earlier last month. Why are we not doing at least as much in response to the human rights and rule of law abuses by China in Hong Kong? Sanctions will and must come, and when they do, does my noble friend agree that it will not be a moment too early?
Lord Ahmad of Wimbledon (Con)
My Lords, on the issue of sanctions more generally, I am pleased that we have moved forward on the important issue of not just transferring the sanctions regimes after we left the European Union but the global human rights sanctions regimes that we have brought forward. Those have been focused on those who commit abuses of human rights being held to account—individuals, organisations and institutions. As I have already said, I cannot speculate on any future designation, but I share my noble and learned friend’s view that sanctions are an important tool.
Lord Field of Birkenhead (CB) [V]
I thank the Minister for his reply. Will he list those of our allies which he believes will publicly support us when we are defending the right of people to leave Hong Kong to come to freedom in the West?
Lord Ahmad of Wimbledon (Con)
My Lords, I am sure that the noble Lord himself has insights into the number of our key partners who have already indicated through international fora their support for the position of the United Kingdom and for the human rights situation of everyone in Hong Kong. They continue to be supportive of various schemes, including our current one around BNOs.
Lord Collins of Highbury (Lab)
My Lords, perhaps I may pick up on the last point made by the Minister. I have previously asked about a co-ordinated response and, from the comments of the Five Eyes leaders, our allies are determined to act. Can the Minister advise us on what action the United Kingdom is now taking to co-ordinate a Five Eyes alliance response to the latest arrests?
Lord Ahmad of Wimbledon (Con)
My Lords, I agree with the noble Lord that our partnerships are important. As I have said, the Five Eyes partnership on issues of security is particularly key. On 18 November, we worked with our Five Eyes partners to issue a statement, and of course we are looking at the situation, in particular the recent announcements, although they are in draft and have not yet been published, about the decisions of the China national congress on the future legislative body in Hong Kong. We will be co-ordinating our response, including that with our key partners.
Baroness Cox (CB) [V]
My Lords, what is the Minister’s assessment of the implications of national security education in Hong Kong schools for children as young as six? There are widespread concerns that this is indoctrination of Chinese communist propaganda at the heart of the curriculum. What steps have been or are being taken by Her Majesty’s Government to respond to these very serious concerns?
Lord Ahmad of Wimbledon (Con)
My Lords, the noble Baroness has raised another important point about education and teaching in the various institutions in Hong Kong. Of course, we take this very seriously and we continue to implore not only the Hong Kong special administrative region authority but also the Government of China themselves to ensure an inclusive educational curriculum for all in Hong Kong.
Lord Austin of Dudley (Non-Afl) [V]
My Lords, what assessment have the Government made of the plans announced last week to extend Beijing’s power of appointment to the Hong Kong parliament and be granted a veto over all of the candidates? This could prevent democracy activists standing in elections and has been described by the noble Lord, Lord Patten of Barnes, as
“the biggest step so far to obliterate Hong Kong’s freedoms and aspirations for greater democracy under the rule of law.”?
Lord Ahmad of Wimbledon (Con)
My Lords, the noble Lord is right to point to the recent announcement made by the National People’s Congress of China, to which I have already referred. Following the current session, we expect the deliberations and debates to finish around 11 March. The next step will be for the Standing Committee of the National People’s Congress to formally enact the changes at a subsequent meeting. While there has been media reporting, no specific details have yet been put forward. These proposals are in draft and, while no decisions are being taken, we are monitoring the situation closely.
Baroness Kennedy of The Shaws (Lab) [V]
My Lords, I thank the Minister for his answer to my noble friend Lady Mallalieu to her question in relation to our judges and their participation in the highest court in Hong Kong. Are the Government aware of the recent decision in the case of Jimmy Lai, where his refusal for bail went all the way to the highest court, and a decision was made that no law in Hong Kong has more meaning than the Chinese national security law which has been passed? The national security law is superior to any law, be it common law or international law, in Hong Kong. Should this not be the turning point in urging our judiciary to think again?
Lord Ahmad of Wimbledon (Con)
My Lords, the noble Baroness speaks with great insight about the law and she is right to point out the statements that were made in the appeal case on this issue, and indeed what we have seen on the bail hearings for the 47 individuals currently being held. As I have said, we are in direct discussions with the Supreme Court and the Government on the issue of judges in Hong Kong.
Lord Carrington (CB) [V]
My Lords, while in complete agreement with the Government’s actions, I want to highlight the length of British involvement in Hong Kong and our close connections with its political and business leaders, many of whom were educated in this country. In order to fulfil our responsibilities and maintain our valuable friendship, has the time come to invite an official delegation from Hong Kong to this country both to express our concerns and to hear from them how they see the future and how we can establish a sensible relationship that benefits both sides going forward?
Lord Ahmad of Wimbledon (Con)
My Lords, I note the suggestion of the noble Lord, but from what we have seen of the National People’s Congress about future legislative control within Hong Kong, and indeed the actions that have been taken recently, I wonder how much leverage we would gain from such an interaction. However, I have noted carefully what the noble Lord has said and I will certainly consider it with colleagues in the FCDO.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, I declare my position as co-chair of the All-Party Parliamentary Group on Hong Kong. The noble Lord, Lord Carrington, just referred to business leaders. My question notes the behaviour of a number of financial institutions that are either based in the UK or with very close links here that are essentially backing unconditionally the illegal behaviour of the Chinese Government, notably HSBC. What steps are the Government taking to consider the impact on our own financial stake in Hong Kong and the damage to their reputation?
Lord Ahmad of Wimbledon (Con)
My Lords, let me assure the noble Baroness that we are in close contact with a wide range of businesses in Hong Kong, but as I have said before, it is for businesses to make their own judgment calls. However, we are concerned that a number of recent decisions taken by the authorities in Hong Kong are further evidence of their determined campaign to stifle opposition and silence dissent. We will certainly continue to pursue an approach in Hong Kong that is rooted in our values and defends our rights, and we will continue to advise on and discuss with business the current serious situation in Hong Kong that we have been seeing in recent days.
Lord Berkeley of Knighton (CB) [V]
My Lords, we have heard comparisons being made with Myanmar and other unhappy positions where people’s rights are being affected. However, surely the fact that China’s actions in Hong Kong are in clear contravention of the Sino-British joint declaration makes this particular case unique. How can we trust our future negotiations with a country which has actually broken its word? Does this not add to the demands made by the noble Lord, Lord Alton, for further action?
Lord Ahmad of Wimbledon (Con)
I agree entirely with the noble Lord’s first point. We continue to engage with China on a raft of different issues, including the environment and climate change. However, it is important that the statements of trust which are made by the Chinese authorities are ones that can stand scrutiny. From what we have seen in Hong Kong, that is not the case.
Lord Craig of Radley (CB) [V]
My Lords, those Hong Kongers who hold BNO status and are veterans of Her Majesty’s Hong Kong Military Service Corps have long pressed for grant of full British citizenship, which was given to a large number of their colleagues before 1997. Does the Minister agree that in view of the current developments, the time is right for their applications to be decided, having been under active consideration by the Government for over six years?
Lord Ahmad of Wimbledon (Con)
My Lords, I pay tribute to the focus of the noble and gallant Lord on this campaign, which he has again drawn to the attention of your Lordships’ House and the Government. As we look at BNO status and its application, I will certainly take back once again the long-standing position on this issue of the noble and gallant Lord and I will write to him.
The Deputy Speaker (Lord Alderdice) (LD)
My Lords, all the supplementary questions have been asked.
Arrangement of Business
The Deputy Speaker (Lord Alderdice) (LD)
The Hybrid Sitting of the House will now resume. I ask all Members to respect social distancing.
We come to Report stage of the Domestic Abuse Bill. I will call Members to speak in the order listed. Short questions of elucidation after the Minister’s response are discouraged. Any Member wishing to ask such a question must email the clerk. The groupings are binding. A participant who wishes to press an amendment, other than the lead amendment in a group, to a Division must give notice in 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.
Lord Parkinson of Whitley Bay (Con)
My Lords, given the large number of speakers and the large number of amendments we need to cover, I remind noble Lords of the rules of debate on Report as listed in the Companion, particularly at paragraph 8.138: arguments fully deployed in Committee should not be repeated at length on Report.
Domestic Abuse Bill
Monday 8th March 2021
(3 years, 8 months ago)
Lords ChamberRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 171-II(Rev) Revised second marshalled list for Report - (8 Mar 2021)
18:54 - Division conducted remotely on Amendment 4 - Ayes: 318 / Noes: 234 - Amendment 4 agreed.
Baroness Altmann
“(f) unreasonable prevention or threat of prevention of dissolution of a religious Jewish marriage via a religious bill of divorce (a “get”);”Member’s explanatory statement
This specifically itemises one spouse unreasonably preventing the dissolution of a Jewish religious marriage with a “get” as being within the scope of the Bill by bringing it under the definition of abusive behaviour.
Baroness Altmann (Con)
My Lords, I will also speak to the other amendments in this group in my name and those of the noble Baroness, Lady Deech, and the noble Lords, Lord Mendelsohn and Lord Palmer. I am grateful for their cross-party support.
These amendments relate to a particular form of abuse which has long been of concern to me as a British citizen of Jewish faith, whereby a spouse—usually the husband—unreasonably prevents the dissolution of his Jewish religious marriage and denies his wife the freedom to move on with her life. We seek to ensure that such behaviour is recognised as a defined form of abuse under this Bill, so that the wife can receive the support and help provided for victims.
I should stress that the majority of Jewish divorces proceed in accordance with religious laws, especially once the civil divorce settlement is agreed, but there are instances in which a husband deliberately refuses. Sometimes this is to extort money from the wife or her family; sometimes it is to wield power and control out of bitterness or spite; sometimes it is out of a vengeful desire to inflict long-term suffering on the ex-wife. The objective here is to support the victim, who is being treated as a chattel rather than as a person and denied her basic rights. There are cases where a woman has been civilly divorced from her husband for more than 20 years, yet the husband has consistently refused to engage with the religious authorities and to grant her a get. She is unable to remarry or to have further children. She is a prisoner in the marriage.
There is no intention here to undermine the role of the Jewish courts, which govern Jewish religious laws and which require the husband to voluntarily sign an official Jewish bill of divorce document, called a get. This can only be initiated by the husband in order to dissolve their Jewish marriage.
There is an entire legal framework governing all aspects of Jewish life, dating back to Biblical times. Although the present-day Jewish courts, known as batte din, and the judges, or dayanim, have been seeking ways to facilitate a process that can free the woman by means of persuasion or negotiation, this process is clearly open to abuse. The wife remains chained in the marriage and, if she wishes to stand by her faith, she cannot date or remarry another man unless she has been given the get. If she were to do so, any children would be considered illegitimate and would not be fully accepted under Jewish religious law.
We hope that these changes will assist rabbinic courts, so that fewer men will play these kinds of cruel games. Sadly, these have been used by men as leverage to control their ex-wives or demand a ransom for their freedom. We recognise that civil divorce is not a substitute for a get, without which, no matter how long the couple have been separated, they are still not considered religiously divorced. This legislation hopes to provide—and these amendments seek to achieve—a wake-up call for Jewish husbands, so that they recognise that it is socially unacceptable to refuse to religiously divorce their wives. Extortionate demands are not acceptable. It should be done in a timely way. It should be as inappropriate in this day and age for a Jewish man to refuse his wife a get as it is for a man to inappropriately fondle a woman or make lewd comments about her looks. We are seeking mindset change.
I hugely regret that this remains an issue for the rabbinic authorities, who have been unable sufficiently to overcome the problem that this causes for women. I understand and fully respect that these are difficult points of Torah, Talmudic and Mishnaic law, which I do not claim to have detailed legal knowledge of. I bow to the legislators in this country on Jewish matters, but I believe that we have a duty to ensure that these Jewish women are protected. They are entitled to the same protections as other victims of abuse.
Fantastic charities such as Jewish Women’s Aid and GETToutUK have been helpful, and many legal and other experts have pleaded for change. I hope that these amendments will further encourage recalcitrant husbands to free their former wives and that society will recognise their victimhood. Such behaviour is not only unreasonable and abusive; it is immoral. These amendments seek to establish that decent behaviour cannot encompass this type of abuse. Legislation cannot force a man to give a get. The religious courts want men voluntarily to attend and grant it. We are sensitive to concerns that a coerced get may be considered invalid, leaving the wife permanently held hostage in the unwanted marriage. We hope that this mindset change in the national community will be forthcoming as we move forward with this legislation.
The later amendments in this group, Amendments 74, 79 and 80, are designed to clarify that the Serious Crime Act 2015 definition of controlling or coercive behaviour covers a situation where a Jewish couple is separated or divorced under secular law and no longer cohabiting, but the religious marriage is not yet dissolved and the husband persistently refuses to give a get. The amendments seek to confirm the previous belief, not yet tested in court, that such a husband could be prosecuted for the crime of controlling or coercive behaviour and face criminal sanctions, even if the couple are no longer living together. However, I am pleased to tell the House that I will not need to move these amendments as Amendment 45 in a later group, in the name of the noble Baroness, Lady Lister of Burtersett, has the support of the Minister and of my noble friends Lady Bertin and Lady Sanderson. That amendment would explicitly establish that post-separation abuse is covered by the 2015 Act, and that an unreasonable get refusal would potentially be a serious crime.
Since this issue was raised in Committee, I have been hugely grateful to my noble friends the Ministers who have continued to engage with us. I thank them and their departmental officials, and also the domestic abuse commissioner and her team, who have been so supportive and understanding of this situation. Indeed, perhaps I may put on record how grateful I am to be living in a country where issues of this nature, which affect a particular religion, can be engaged with so seriously and sensitively by our Government, the Civil Service and other officials.
The domestic abuse commissioner has stated that she welcomes these proposed amendments to the Bill and that she recognises that this would be a form of coercive behaviour on the grounds of psychological or economic abuse or coercion. She has requested and recommended that this issue be included in statutory guidance under the heading of “wider spiritual abuse”.
Since this issue was raised in Committee, we have listened carefully to the debate and we would like to thank again the domestic abuse commissioner and the Ministers. Although I stressed clearly that these amendments are designed to relate solely to Jewish religious divorces, with no intention to impact on any other religious groups, we understand that there were concerns of a read-across to other religions.
Having listened carefully to the debate in Committee, I have also been grateful for ministerial assurances that unreasonable and persistent refusal to give a wife a get is already covered by the broad definitions of abuse in the Bill, and I have received assurances that this will be explicitly mentioned in the statutory guidance. I would be grateful if my noble friend would confirm this and, on that basis, I would therefore accept that this issue need not be in the Bill and I do not intend to press the amendment to a vote. I beg to move Amendment 1.
Lord Palmer of Childs Hill (LD) [V]
My Lords, I have signed all the amendments in this group, which have been signed by noble Lords from the Conservative, Labour and Liberal Democrat parties and the Cross Benches—not very usual. As the noble Baroness, Lady Altmann, said so very clearly, all these amendments relate to a spouse—usually the husband—unreasonably preventing the dissolution of a Jewish religious marriage.
My thanks go to Government Ministers for engaging with us and for seeking a UK legal solution to this medieval enigma. I would have preferred for these amendments, clear as they are, to be in the Bill. However, I have to accept, as has the noble Baroness, Lady Altmann, for the moment, that the problem lies with current interpretations of the rules of Jewish marriage, and not with a parliamentary solution. There is no doubt that chained women and their children, after a civil divorce, are being unreasonably discriminated against for life. I accept that the Government have been sympathetic and have sought by practical means of guidance issued to help those affected, such as with Amendment 45, which I understand will be supported by the Government.
I am grateful for this assistance, but it is not enough. Even if we do not vote on these amendments today, as suggested by the noble Baroness, Lady Altmann, I will continue to call for a more sympathetic approach from the Beth Din religious authorities. They rely on the Catch-22 absurdity that a Jewish divorce is not recognised if the recalcitrant husband is seen to be “coerced” into giving a get, resulting in the divorce not being recognised in Jewish law. Thus the agunah, or chained woman, is prohibited from having intimate relations with a man other than her husband and cannot remarry in an orthodox ceremony. In a really unacceptable denial of rights, the children will have severe restrictions placed upon them. Children should not suffer in this way, whatever the reason. This is unacceptable in 2021.
However, these same restrictions on coercion do not stop coercion of the wife being blackmailed, as suggested by the noble Baroness, Lady Altmann, into giving a get, be it by payment of money, loss of family home or access to the children of the marriage. All the amendments in this group seek to provide a remedy and I welcome the moves in the Bill and in the guidance. However, what we do not want is to worsen the situation by creating the very perceived coercion which these despicable men rely on.
Lord Mackay of Clashfern (Con) [V]
My Lords, I first came across the problem with which Amendment 1 deals when I was promoting the divorce Act in 1996 and I was assisted in great measure by my late friend Lord Jakobovits, who was then the Chief Rabbi.
The problem arises, as has been explained, for a person of the Jewish faith who is married and then decides to seek divorce. If she is female, she may get a decree of divorce in the English courts, but the Jewish law to which she feels bound requires that she cannot be divorced under that law without the agreement of her husband. Some husbands who have been divorced by the English courts decline to agree that the wife should be allowed to divorce under the Jewish law which they have both agreed to follow. In that situation, the husband is able to hold the wife into the marriage which she has made clear she wishes to leave.
The exercise of power by the husband is a controlling or coercive power within the meaning of Clause 1(3) of the Bill. Since they are both over the age of 16 and have been personally connected within the meaning of Clause 2(1)(a) of the Bill, it is clear that the husband is showing what under the Bill is described—and this will shortly become law—as domestic abuse towards the wife and therefore is subject to the remedies for her provided in the Bill. No distinct amendment is required in order to bring the wife into the situation where she can receive the help that the Bill will provide when it becomes an Act.
I agree that there is a problem which cannot be solved by us about a get having to be voluntary. The use of one of the remedies may be easier than another in that situation, but one thing I am sure of is that it does not do any good to alter the provisions in Clause 1 of the Bill by these amendments, at least in respect of everything except the Serious Crime Act—but I do not think it requires anything to be done in that place, either. Adding things such as “reasonable” and “unreasonable” and so on is a mistake and the proper thing to do is to leave Clause 1 as it is, because it undoubtedly carries with it the implication that the refusal of a get is domestic abuse.
Baroness Deech (CB) [V]
My Lords, the Ministers involved have done a great service by listening to the Members who have put forward these amendments. I am pleased to support all the amendments in this group, to which I have put my name.
By accepting the need to stigmatise husbands who behave unreasonably in not giving a get, the Government are sending a signal to spiteful men and to fossilised religious authorities that compassion and secular standards have to prevail. I support the noble Lord, Lord Palmer, in all that he has said about this. The ability to refuse a religious divorce provides abusive husbands with power to control and to subvert conditions relating to the divorce, by, for example, demanding that the divorce settlement be repaid. The refusal can have a grievous effect on a woman’s entire life. She may be prevented from remarrying while still of childbearing age and there is concern for the status of children that she may have in future.
I am not defending the religious law underlying this, and it is not confined to Judaism. Nevertheless, it is accepted by some women here, and by millions around the world, but it is time for the secular law principles to prevail, all the more so since from this autumn, we will have no-fault divorce, a system which does not allow the unwilling spouse to defend a divorce at all—it must be accepted. The guidance, which I hope will contain these provisions, is a good example of how British law manages to encompass a diversity of views within its system. A man who refuses a get unreasonably in the future may even be found guilty of a criminal offence of coercive and controlling behaviour, under the Serious Crime Act 2015, because this Bill clarifies that domestic abuse provisions apply to former couples, even after separation. Nevertheless, this provision would work more effectively as a threat than an actual imprisonment, because the get must be granted by the husband without direct coercion. The clarification in the statutory guidance which we hope for will mean that this is a good day for women and a step closer to equality in religious law.
Lord Winston (Lab) [V]
My Lords, I speak personally in this debate. It is a privilege and a pleasure to follow the noble and learned Lord, Lord Mackay of Clashfern, because I remember 1996. I was in the Chamber as a newly appointed Peer and remember very well Lord Jakobovits, who was quite a close friend.
I come from an orthodox Jewish family and I am an orthodox Jew. My grandfather was an orthodox rabbi. He taught me Hebrew and Aramaic from the age of six or seven, and his wife, my maternal grandmother, was very concerned about the problem of get. She used to try persuading the rabbinical authorities, including my grandfather, who was not a dayan—a judge—of the rightness of the cause. She remained, throughout her life, from the First World War onwards, an activist on this. My grandfather supported her with a smile, but he recognised that the Jewish courts were rather reluctant to move forward.
My mother travelled around the world trying to persuade the rabbis of the problem faced by the agunah. She spoke to American, Israeli and Australian rabbis—for example, the Chief Rabbi of Israel—and those in parts of Europe. The noble Lord, Lord Paddick, who will be speaking in this debate, can testify to how frightening my mother was. Unquestionably, many strictly orthodox rabbis appeared to be persuaded. She was always greeted with polite acquiescence, but nothing has happened, and one of the problems is that there are many different courts, so-called batte din, around the world. There is more than one in this country and they have been reluctant to work collectively in any way.
Another reason for being personally interested in this debate is that this is the week of my 48th wedding anniversary. My wife is not listening to what I am saying about divorce, by the way. Judaism differs from many other faiths because religious law is based on Talmud, which dates back to the Mishnah from the second century and the fifth century. It is a huge and remarkable compilation of discussions by the rabbis, who, of course, disagree with each other. Jews always disagree, and the Talmud is one of the few books of law of any kind which is almost entirely a matter of questions. One rabbi asks a question and another group of rabbis answers with a question. That is how the Talmud has built up. It has left Judaism almost unique in its religious format. It is not pyramidal—there is no one central authority. There is no supreme court in Judaism. I suspect that a supreme court would be in the world to come, not in this world. That has been a major problem for a few issues, particularly this issue of the chained woman.
It is embarrassing for someone such as myself to try persuading an English Parliament, to which I am absolutely committed, to help with Jewish law. I would also say that these instances of irreligious men hiding behind their religious cloak is much rarer than one might think, but none the less, there is this very important case for a few people where the future happiness of a woman, her freedom and, to some extent, the possibility of her having children is so important to her and to the community. It would at least prevent this shocking instance, so I am delighted that the Government are minded in some way to help us. I am very pleased that the noble Baroness, Lady Altmann, feels that the amendment to follow, to which I will listen with great care, will help to sort this matter out. I congratulate her on bringing forward this important matter, which affects a number of Jewish families.
Baroness Uddin (Non-Afl) [V]
My Lords, it is a privilege to speak to the amendments tabled by the noble Baroness, Lady Altmann. I am not Jewish, but as a woman of faith I appreciate the complexities detailed in the amendments. I am grateful to all organisations which have kept us fully briefed throughout the passage of this Bill. I salute them today, for many have spent a lifetime advocating for victims and survivors. As we approach the end, I have drawn on their experience, sentiments, and many of their expressions and words, to speak today, and I stand in support of the noble Baroness, Lady Altmann, and other noble Lords who have spoken.
Violence and abuse often beget another generation of violence, not in all families, but some are so scathed by the pain, humiliation and loss of hope, respect and self-esteem, and mental and physical well-being, that this impacts all aspects of their lives. Women have achieved significant positions in society and throughout the globe, yet perpetrators— mostly men—have, as has been said, continued to feel entitlement to an inalienable right to batter and abuse their wives and partners, sometimes using religious references. Throughout the years, many in families and communities and, shockingly, lawmakers and law enforcers, have often been bystanders, designating the degradation of women as “domestic”. Women have tolerated millennia of violence and persecution sanctioned by family, society, and worst of all, the state, and sometimes even religion. This Bill is our pledge that we will uphold a society which liberates victims and survivors to live free of the fear of violence and abuse and, more importantly, institutionalise justice, freedom and liberty from aggressors and their assailants.
Laws, while a cornerstone, will not on their own aid the victims, the survivors, and their families to rebuild their lives. They will continue to require proper and adequate financial assistance and structural support to protect them until they are strong enough in transit from victim to survivor. Therefore, at the outset it is crucial that the gendered context of abuse is recognised on the face of the Bill. We live in an unequal world, where women are often at the margin or society, no matter what advances we have made in some aspects of our society. All victims of domestic abuse need support, but how we respond to men and women will inevitably be different, as has been stated, and therefore their experiences and needs require appropriate responses. To deny a gendered approach is to persist in repudiating the experiences of the vast majority of victims and survivors of violence and abuse, who are women in our country and throughout all parts of our world.
The Istanbul convention also requires states to take a gendered approach, taking on board women’s faiths when implementing laws and policies on domestic abuse. This Bill cannot deny the reality, thus ignoring well-established evidence that women escaping and recovering from violence and abuse will require women-only services.
Lord Parkinson of Whitley Bay (Con)
The noble Baroness is now speaking to the amendment that comes in the next group. If she would constrain her remarks to the amendments in the first group, that would be appreciated.
Baroness Uddin (Non-Afl) [V]
Later in this Bill, we will be discussing the role of Cafcass and the family court in instructing contact with children, which calibrates comprehensive briefing, and must always ensure that the protection and well-being of children are at the forefront of any discussions. Although I recognise the important and useful role of Cafcass and the family court system, I suggest it is far from resilient in its effectiveness and application, due to insufficient understanding of the impact of violence and abuse.
I wish to address the amendment of the noble Baroness, Lady Altmann, and her call for get refusal to be recognised as a form of domestic abuse within the statutory definition to ensure that Jewish women are protected and can access a DAPO on the grounds that a get is being withheld by an abuser.
I appreciate that this amendment specifically addresses get. I am in awe of the leadership of the noble Baroness, Lady Altmann, in getting us to this point. If husbands who refuse wives religious divorce are likely to be prosecuted, it would be a godsend, not just for Jewish women, as it would give hope to other women of faith, including Sikhs, Muslims, and Hindus—many of whom often discover, when there is a violent incident or separation, that their religious ceremonies are not recognised by the laws of our country. This blights the lives of countless women and families who have no recourse to the laws. The Register Our Marriage campaign and other leading women’s organisations welcome these proposed changes on get, as do I. It raises hope for others seeking state recognition for their plight in relation to religious ceremonies.
Lord Cormack (Con) [V]
My Lords, I take part briefly in this debate because I was moved by what my noble friend Lady Altmann said in Committee. I go by one abiding conviction: we are all equal under the law and every subject of Her Majesty the Queen deserves the same consideration, the same protection and the same advancement as any other. As a great admirer of the Jewish community and what it has contributed to our national life over many centuries, I believe that what my noble friend is arguing for today is something that we should all recognise as a legitimate request. I was delighted to hear her comments that she believes that this will be covered, even though her own amendment will not be pressed to a Division.
I have tried to help a little in the work that the noble Baroness, Lady Cox, has done for Muslim women in the context of sharia law. Again, it is important that everyone in this country—every woman—has the same benefits as every other. The rule of law is what makes this a civilised country.
I sincerely hope that we will go forward from Report to see this important landmark Bill on the statute book very soon, and that it will indeed give true and equal protection to all those who suffer or who are in fear of domestic abuse. I am glad to support this amendment.
Lord Mendelsohn (Lab) [V]
My Lords, I speak in support of this group of amendments, which I have signed. I associate myself with the excellent speech of the noble Baroness, Lady Altmann, and my colleagues. I also thank the Minister and the noble Baroness, Lady Williams, and the officials of the domestic abuse commissioner for their engagements on these amendments.
There is indeed progress. As my noble friends have said, there are some clear indications for some modest but significant improvements as outlined. Crucially, I hope we will hear some reassurance, building on what was said in Committee, that statutory guidance, as provided for in Clause 73, will take into account the measures proposed in the amendments.
It is also important to note that there is a host of additional elements throughout this Bill which support the plight of victims and will provide new opportunities for assistance and help, including DAPOs, the role of the domestic abuse commissioner and many others. There is no doubt that more will be done over time. At its very heart, this is a form of gender discrimination that we really cannot accept.
The Government have made a number of arguments as to why they could not go further or place these matters on the face of the Bill. Indeed, there is a reasonable point that the Government have not had enough time to tease through all the different implications for all faiths on this matter. There is a less persuasive point about drafting preferences.
There are two arguments, however, that are surely utterly wrong and incompatible with the underlying intentions behind this Bill: namely, that this is only domestic abuse in certain circumstances and that English law alone cannot solve this matter. A plainly gender-specific arrangement which places women where they have less rights and power in courts, which are exclusively run by the decisions of men, is wrong. This is not a situation we should accept, nor is it an arrangement we should settle for, even under any calculation of what religious freedoms should be accorded to faith communities in our country.
In Holland, the courts have been making rulings which have included fines and even imprisonment of husbands unwilling to deliver gets, with all the support of the rabbinate and the religious courts. In fact, under Dutch jurisprudence since 2002, which was strengthened in specific legislation just a couple of years ago—and which has been accessed by Jewish women across Europe, including, previously, some from the UK who, unfortunately, can no longer access it now—the secular courts are able to unchain Jewish women in these circumstances. The distinguished Chief Rabbi Pinchas Goldschmidt, the head of the conference of European orthodox rabbis, supports this measure, as does rabbi Aryeh Ralbag, the former chief rabbi of Amsterdam, who now works in the orthodox courts in New York to bring reform and change. They support the Dutch judiciary’s proactive approach and recognise that, over 2,000 years, the role of the religious courts and the nature of Jewish communities in modern times is different. In response to the opposition of those who resist any notion that secular values or laws should ever interfere in how the Jewish law operates in liberal democracies. Rabbi Ralbag has powerfully said:
“Am I concerned that this is creating a precedent for interference? In some places, yes, I am. But I and every rabbi need to measure this against the pain and suffering that is being visited on Jewish women right now. And right now, this is what we can do to help”.
Regrettably, we are a long way from that here in the UK, but this is something that I think should inspire us that more can and must be done through this Bill—and indeed after it. I have been truly shocked and humbled over the issues presented by these amendments. I have been contacted by tens of women in this situation since I first spoke out. I have heard the most traumatic stories, including with people I knew, and in some cases people I have socialised with. How true it is that you never know what is going on, even with people you think you know well. The private torments, appalling behaviour, abuse and control—it has been utterly shocking. How important it is that there are excellent organisations such as the Jewish Women’s Aid and GETTout UK. I have been shocked at how some members of the legal profession have been providing the use of the get as a bargaining chip to ensure that women cannot receive what the law is clear and firm they are fully entitled to.
These issues go much deeper than the granting of the get and involve many cases that do not even touch the sides of the religious courts, where they are prepared to intervene. So while I am grateful to the Government for the progress that I hope the Minister will confirm during his speech, we cannot be satisfied with where we are. There is a huge duty on leaders in the Jewish community to face up to this dark side. While thus far it does not do what the Dutch have done, I hope the Bill will make them think and come round to proposing more legislative interventions themselves. I hope Jewish women will find comfort in the support that the Bill will give them in their struggles ahead, and for that we must be grateful.
Lord Mann (Non-Afl)
My Lords, it is a pleasure to listen to and follow my noble friend Lord Mendelsohn and the other sponsors of these amendments.
I wish to make two brief points. The first is that whenever there is an unequivocal imbalance in power relations, that affects behaviour. The behaviour relayed to me in the context of these amendments particularly concerns women who remain in abusive relationships precisely because, in any definition of “negotiation”, the odds of getting out are stacked against them. One cannot go fairly into a separation negotiation if the other side has additional cards that are greater than the ones you possess. That imbalance affects ongoing behaviour; it will be affecting people’s behaviour now, as my noble friend Lord Mendelsohn rightly pointed out, in cases where perhaps no one will know anything at all other than the woman directly affected. There is a responsibility on the Government to listen acutely to the expertise being brought.
That brings me to my second point—and it is an apposite time to be making it in the context of Lord Speaker elections and people thinking about the size of the House—about the diversity of this place. There is no purpose in having an unelected Second Chamber if it does not represent the diversity of the communities out there. With these amendments and the Government’s arguments against them, we see a juxtaposition of the best and the not so good. Here we see a community effectively represented, by Members from across the range of the political spectrum knowledgably putting forward their expertise to the Government and to the House. But if we are to have a purpose here and carry out the precise role that an unelected Chamber needs to, we need to be far more inclusive of all communities across the country. The amendments, as clearly as any that I have ever seen, absolutely demonstrate the strengths of this House but also, in a sense—and I anticipate that this will be the Government’s response—part of its ongoing weaknesses, in that we are not inclusive enough of all communities.
I congratulate those who have brought forward their expertise from their community for the rest of us. With such cross-party wisdom, it would be foolish of us to ignore that expertise.
Lord Polak (Con)
It is a pleasure to follow the noble Lord, Lord Mann, who, as a non-Jew, has done, and continues to do, so much in the fight against anti-Semitism.
The well-informed debate in Committee was a good one and today’s debate has been just as important and impressive. I am delighted to confirm the assertions by the noble Lord, Lord Winston, about his mother, the late Ruth Winston-Fox; she was a force to be reckoned with but also a wonderfully warm, creative and successful campaigner. She clearly produced quite an impressive son, too.
The Bill, which is welcomed across the House and beyond, is about helping as many people who need it as possible. That is why I support my noble friend Lady Altmann’s amendments; as always, she made the case strongly and eloquently. I too am grateful to the Government, specifically on the Front Bench, my noble friends Lady Williams and Lord Wolfson. There can be no doubt in my mind that withholding a get is abusive behaviour. I also pay tribute to the inspiring work of Jewish Women’s Aid.
Lord Paddick (LD) [V]
My Lords, I speak to show support from these Benches for the amendments. They relate to Jewish law but there are many women who, for many reasons, are effectively prevented from leaving a failed marriage because their spouse unreasonably decides to prevent them moving on with their lives. Just one example might be where a wife is subject to abuse but the husband threatens to cut her off without a penny if she leaves the relationship. Whether or not the threat could be carried out is not the point if the threat is believed. In the case of the amendments, the husband has to consent to the divorce in Jewish law, and so the threat is real.
It is a privilege to be able to speak on this Bill on International Women’s Day. Any woman should be free to leave any relationship if she so chooses, and that includes relationships covered by these amendments. In 2021 there should be no chained women.
Baroness Wilcox of Newport (Lab) [V]
My Lords, Labour is happy to support this group of amendments but recognises the realities of abuse that different communities face. We must ensure that what is in the Bill works in practice for victims of all backgrounds in the UK.
The technical aspects of the amendments have been described powerfully and in detail by other noble Lords. When I came to review them in preparation for today, I was struck by the complexity of the situation surrounding victims caught in these particular circumstances due to religious faith, and the clarity with which these amendments have been written in order to ameliorate the effects and consequences of that faith while unlocking the rights of the woman in that situation and disallowing perpetrators from using the get negotiations as an abusive bargaining chip.
I pay tribute to the noble Lords who have brought forward these amendments for the experienced and knowledgeable way in which they have highlighted this problem, and I am glad of the support across all areas of the House for the amendments, on the grounds of domestic abuse by way of controlling and coercive behaviour. As the noble Baroness, Lady Altmann, spoke of in her detailed opening speech, this is a defined form of abuse where the victim is treated as chattel. I was interested to hear my noble friend Lord Winston’s insights into the uniqueness of Judaism in not having one central authority, as well as my noble friend Lord Mendelsohn’s powerful and cogent arguments about what must be done, and the insight that he showed in his comment about not knowing what is actually going on with people who you think you know.
Inclusion in the Bill provides the opportunity to ensure that its provisions and protections are applicable to all. It specifically recognises the plight of these women by removing the shadow of abuse and control, restoring their right to exercise their faith through their ability to remarry and have children within their faith. The recognition would also offer these women other protections under the Act, once it is passed, if they are specifically included. It is in line with a key objective of the Bill: to raise awareness and understanding of domestic abuse and its impact on victims. Key is the ability of women to bring a case where they retain control of the process as the victims, rather than as a witness in a prosecution, having criminal sanctions as a civil party. It also clarifies that unreasonably preventing the obtaining of a get can include the imposition of unfair conditions, calibrated by reference to being substantially less favourable terms than the civil courts have ordered.
In conclusion, on International Women’s Day, this group highlights what so many noble Lords have said. The Bill needs to work for all victims and to do that it needs to grapple with the reality of how domestic abuse is experienced, in all the different ways that it is, by all of our communities across the UK—whatever their faith or ethnicity—by those living with it and trying to escape it.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I am grateful to my noble friend Lady Altmann for tabling these amendments. As a number of speakers have said, it is particularly apt that we are debating this on International Women’s Day. The quality of speeches in this debate is a testament to the strength of feeling across the House. Indeed, the standard of speeches has set a very high bar for the rest of Report.
I hope the House will forgive me if I depart from my prepared text to pick up two comments by my noble friend Lord Cormack. He first said that all were equal under the law. I respectfully agree entirely. Towards the end of his short but powerful contribution, he also said, if I took it down correctly, “The rule of law is what makes this a civilised country.” Again, I respectfully agree, and those two propositions guide not only the work of my department but my approach to this matter.
Amendments 1 and 3 would add a sixth limb to the list of behaviours in Clause 1(3) which count as abusive; namely, the unreasonable refusal to agree to the granting of a religious bill of divorce, or get, which is necessary to dissolve a Jewish religious marriage. The threat of such a refusal would also be caught by the amendment. It is undeniable that women who are refused a get by their husbands suffer long-lasting and significant consequences. A woman who has not received a get is regarded in the eyes of Jewish religious law as still married. She is therefore unable to remarry, but that is not the only disability which she suffers. Perhaps more importantly, if she does not remarry but has further children with another Jewish partner, those children will be severely restricted as a matter of Jewish law as to whom they are later able to marry.
The term applied in Jewish law to a woman whose husband refuses to give her a get, being an “agunah” or “chained”, is thus apt and tragic. I know that Jewish religious authorities are concerned about the problem but have not, so far, found a solution to it within Jewish religious law. That is a source of regret to many, but not something which English law alone can solve. While I accept, as the noble Lord, Lord Palmer, put it, that this issue goes back to medieval times and may go back further—it is certainly of long standing—it is a matter which ultimately, so far as Jewish law is concerned, the Jewish religious authorities themselves have to deal with. If the undoubted abilities of the mother of the noble Lord, Lord Winston, were insufficient to resolve this problem—I pass on congratulations from the Front Bench to him on his wedding anniversary—and she did not succeed with all her talents, one wonders where the solution will come from.
While English law cannot solve this problem, there is something which English law can and should deal with. As the noble and learned Lord, Lord Mackay of Clashfern, reminded the House, this is not the first time English law has engaged itself in this area. He reminded the House of the significant work done by the late Chief Rabbi, Lord Jakobovits, of blessed memory, which led up to the legislation at the start of this century. English law can recognise that the refusal to grant a religious dissolution is all too often about the exertion of control by one spouse over the other—almost invariably, in the context of a get, by the husband over the wife—and, as such, may be considered a form of domestic abuse in certain circumstances
However, as my noble friend Lady Williams outlined in her response in Committee, we consider that this would sit better in the statutory guidance on domestic abuse provided for in Clause 73, rather than in the Bill. Again, as the noble and learned Lord, Lord Mackay of Clashfern, identified, that is because the list of abusive behaviours included in the definition is purposefully drafted to be high level. That definition is therefore to be applied by the courts and other agencies on a case-by-case, fact-specific basis. Including specific circumstances in the Bill, such as a refusal to grant a get, may lead to calls for inclusion of other examples which would have two adverse consequences. First, as a matter of drafting, it would make the definition unwieldy. Secondly, we do not want to give the impression by including specific examples that there is a hierarchy of abuse. We are concerned to capture and prevent all forms of domestic abuse.
Before I provide further reassurance on the matter of statutory guidance, which a number of noble Lords have referred to, it would make sense to respond to Amendment 79 first. That amendment seeks to ensure that both the guidance I have just referred to and the statutory guidance issued under Section 77 of the Serious Crime Act 2015 include the unreasonable refusal to grant a get within their discussion of controlling or coercive behaviour. While we would not want to prescribe in statute what statutory guidance must contain, the House will have heard my own and my noble friend Lady Williams’ previous commitments during Committee and subsequent discussions to address this issue in the statutory guidance provided for in Clause 73.
I am pleased to have met with my noble friend Lady Altmann, the noble Baroness, Lady Deech, and the noble Lords, Lord Mendelsohn and Lord Palmer, recently to discuss this matter and share our progress on including the issue within the statutory guidance. Home Office officials have been working closely with my noble friend Lady Altmann, with Jewish Women’s Aid and others to shape the reference to this issue in the statutory guidance. I was particularly pleased to hear my noble friend refer to the work done by my department’s officials in this regard as well.
I am pleased that we have now included specific reference to refusal to grant a get within the draft guidance. We have also included a specific case study on get refusal, provided by Jewish Women’s Aid—to whom I pay tribute, as my noble friend Lord Polak did—to bring the issue to life for those reading that guidance. Let me say this clearly and unambiguously: there are, and no doubt will be, cases in which the refusal to give a get may be considered a form of domestic abuse. As my noble friend Lady Deech reminded the House, that is especially the case if refusal to grant a get is used as a method to undermine a financial settlement imposed by the civil court. As the noble Lord, Lord Mann, reminded the House, the issue here is that that power affects all the negotiations which surround the issue of separation.
Turning back to the statutory guidance, we have also added a new section on spiritual abuse, a particular form of abuse where perpetrators use the victim’s faith or other belief system to control them. We have worked closely in this regard with the Faith and Violence Against Women and Girls Coalition, drawing on its expertise. The new section is now comprehensive and takes up a few pages within the guidance.
I respectfully agree with the noble Baroness, Lady Uddin, that this applies to all faiths. Spiritual abuse is not faith specific, and I assure the noble Lord, Lord Mann, that the Government’s approach is to be absolutely inclusive of all communities within our country. We will continue to work closely with the experts as we develop the guidance, and we will be publishing an updated version of the draft guidance shortly after Royal Assent for a formal consultation, where there will be a further opportunity for interested parties to contribute. As the noble Lord, Lord Paddick, said, because what we are dealing with here are ultimately issues of power and control, I hope that that will enhance the nature and quality of the consultation.
Baroness Altmann (Con)
My Lords, I thank my noble friend for his remarks, and am truly humbled by the widespread support across the House for the sentiments and intent of these amendments. Every noble Lord who spoke supported this group of amendments. I hope that, on International Women’s Day, this will help promote a mindset change among Jewish men, or men of any faith, that the position of power they may find themselves in should not be exercised against the interests of their wives. I accept that the broad definitions do cover get refusal, and I appreciate my noble friend’s unambiguous statements to that effect. On the basis of the assurances that I have most gratefully received, I will not be moving my Amendments 3, 74, 79 and 80, and I thank my noble friend and the department for all their engagement. I beg leave to withdraw my Amendment 1.
The Deputy Speaker (Baroness Henig) (Lab)
We now come to the group consisting of Amendment 2. Anyone wishing to press this amendment to a division must make that clear in debate.
Amendment 2
Baroness Meyer
Baroness Meyer (Con)
My Lords, I rise to speak to the amendment tabled in my name and kindly supported by the noble and learned Lord, Lord Mackay of Clashfern, the noble Baroness, Lady Altmann, and the noble Earl, Lord Lytton, which I very much hope the Government will consider positively.
The reason I was sent to this House was my 19 years of work on family and children’s issues. Every day for nearly two decades I stepped through the wreckage of relationships destroyed by one parent poisoning the mind of a child against the other parent. Sometimes the abuser was a man, sometimes a woman. The gender was irrelevant. The horrific irony is that all parties—the abuser, the abused and the child—end up victims in their different ways, with lives wrecked and psychological damage beyond measure. For some the only way out is suicide. The Government say that there is no need to include an amendment as this form of abuse is already covered by implication in the Bill. But why should it be covered by implication and not explicitly?
In Clause 1(4) there is already detailed reference to “economic abuse”, by which one partner or spouse seeks to use money to coerce and control the other. How can economic abuse merit mention when the weaponising of children for the purpose of coercion and control by one parent over the other goes unmentioned? No one has put it better than the distinguished family court judge, His Honour Judge Stephen Wildblood QC, who said
“The problem with Parental Alienation is that it’s not about the child at all. It is about the adults … It’s using children as an instrument of that parent’s skewed emotions.”
In my book, there are few forms of domestic abuse more callous and damaging than that. Are we to draw the conclusion that money matters more than the lives and souls of the victims of domestic abuse—men, women and children? That surely cannot be the case.
This has nothing to do with creating a hierarchy of behaviours, as the Government fear. It is to ensure that through an Act of Parliament the issue of children as the victims of domestic abuse is not buried under a barrage of gender politics and misinformation. This debate needs to be broadened, not narrowed. There is a crying need for the justice system to be better equipped to distinguish between false and authentic accusations of alienation: between children who for good reason do not want to see one parent, and children who have been indoctrinated to say so. As the noble and learned Baroness, Lady Butler-Sloss, put it in our previous debate:
“A little more time might be spent teaching magistrates, district judges and circuit judges a little more about it”.—[Official Report, 25/1/21; col. 1403]
“It”, of course, is parental alienation.
There is the rub: the dreaded words “parental alienation”. I regret to say that rational debate around this term has been made well-nigh impossible by the controversy and emotion that it attracts. That is why my amendment, instead of using the term, in effect describes what my supporters and I mean by it—that is,
“a parent’s behaviour deliberately designed to damage the relationship between a child of the parent and the other parent.”
Seen in that light, I cannot believe that any reasonable person can object to our amendment.
Of course I have every sympathy for women who fear that men will use parental alienation as a defence against well-founded claims of abuse. The last thing that I want to do is to make life easier for an abusive and dishonest man—to the contrary: I believe that our amendment, far from disarming women victims, will strengthen their defences. But it is plain wrong to assert that so-called parental alienation is a stratagem used exclusively by men against women. For example, Judge Wildblood was reported as saying in 2019 in an alienation case that the children would suffer “significant and long-term” emotional damage, adding that
“the cause of that harm lies squarely with this mother”.
Alienation exists; to deny it would be to deny that the earth is round. More to the point, noble Lords have all seen the petition signed within a matter of weeks by over 1,400 fathers, mothers and grandparents, begging the Government to hear their voices and to include in the Bill a reference to this vile form of abuse. Every day I receive emails asking for that. If that is not persuasive enough, I have an abundance of proof in hundreds of peer-reviewed research papers and scholarly articles, to be found in the written evidence that I have circulated. This body of work comprehensively refutes the so-called expert advice submitted to the Ministry of Justice—advice that says on the one hand that there is no such thing as parental alienation and on the other that it benefits men only.
This is a Bill that, if it becomes law, will deeply determine the well-being and mental health of families across the land for years to come. It is therefore vital that we have complete clarity about its intent and reach. Can my noble friend the Minister agree that the family courts would benefit enormously from having parental alienation defined in law? Can she further agree that the use of children as a weapon in adult conflicts is a form of child abuse and that this matter should fly above all politics and issues of gender, since it equally affects men and women, their children and their wider families? Lastly, can she confirm that parental alienation will remain in the final version of the guidance to the Bill and that Cafcass—that is to say, the experts and not the ideologues—will play a central role in advising the committee that will examine the guidance? I beg to move.
Baroness Brinton (LD) [V]
My Lords, the amendments in this group seek once again to put parental alienation both in capitals and in the Bill. The noble Baroness, Lady Meyer, has again outlined her reasons for this. However, I do not hear any difference in objective from the amendments tabled in Committee. Those of us who oppose the amendments believe that adding parental alienation to the Bill is redundant because the alienating behaviours that she referred to are already caught in the definitions of coercive control. Further, the Government have agreed to add a phrase about alienating behaviours to the statutory guidance, which will sit alongside some of the other patterns of behaviour in domestic abuse.
As was mentioned in Committee, there are already problems in our family courts with one parent—often but absolutely not always the father of the child or children—alleging such behaviour. Unfortunately, as outlined in the Ministry of Justice’s harm panel report, fear of false allegations of parental alienation means that survivors and children of abusive and coercive relationships are suppressing evidence for fear that the charge of alienation will be made against them. Indeed, it is becoming such a worry in the family courts that even their solicitors are advising them against such evidence. There can be a history of abusive behaviour, especially coercive control, that is not presented formally to the family courts. This can include violence, restraining orders, criminal convictions and long-term patterns of such behaviour. Perpetrators of such fixated behaviour can often sound convincing and their ex-partners are often terrified of their behaviour, even in a court hearing.
In Committee, the noble Baroness, Lady Helic, and I went through some of the history of the development of parental alienation syndrome, which I will not repeat today, since we are now on Report, other than to say that there is evidence from the family courts of some abuse of a parental alienation defence. There are also some questions to be asked about the role of so-called experts in this area. Practice direction 25B, on the duties of an expert, the expert’s report and arrangements for an expert to attend court, is very clear on the requirements, including registration with a UK statutory body or having appropriate academic qualifications. The expert must also have completed the training. There are concerns from contested cases that some experts in this area might not have met this high bar, so I ask the Minister what checks there are to ensure that all expert witnesses meet practice direction 25B.
That is also why the noble Baroness, Lady Helic, and my noble friend Lord Marks have tabled Amendment 44. We need to ensure that the courts are aware of the implications of a whole range of behaviours, especially in some of these egregious cases where there might have been some controlling, abusive, coercive and even alienating behaviour. The definition of coercive control—after many years of campaigning by organisations such as Women’s Aid and others, it is thankfully now a crime—is
“an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten”
the victim. That seems to fit very well the definition that the noble Baroness, Lady Meyer, has been seeking. I hope that, on this basis, she will withdraw her amendment.
The Deputy Speaker (Baroness Henig) (Lab)
I call the next speaker, the noble Lord, Lord Winston. No? We shall move on, then, to the noble and learned Lord, Lord Mackay of Clashfern.
Lord Mackay of Clashfern (Con) [V]
My Lords, I have supported this amendment on the basis that it shows what the general definitions reveal and include. I do not think that it will be necessary to pursue it, if we have a clear understanding that the sort of behaviour that the noble Baroness, Lady Meyer, has described is covered by the phrase “controlling or coercive behaviour”.
There is another important definition that deals with children being used as weapons against their parents. It points out that activity towards a child may well be against the parent. Clause 1(5) says:
“For the purposes of this Act A’s behaviour may be behaviour ‘towards’ B despite the fact that it consists of conduct directed at another person (for example, B’s child).”
I am certain that there are a large number of cases in which one parent, using his or her relationship with the child, seeks to damage that child’s relationship with the other parent. It is a natural weaponising in a conflict, which is apt to come forward in this sort of fighting between parents. When they are antagonistic towards each other, they are apt to try to bring children to their side of the dispute, which strikes me as extremely dangerous.
I believe that the attempt to use one parent’s relationship to damage the children’s relationship with the other parent is an obnoxious type of controlling or coercive behaviour. I verily believe that, if allowed to persist until the end, you will get parental alienation, because the operation of trying to damage the child’s relationship with that parent ultimately succeeds. That is what alienation is: by that means, the child has been successfully cut off from the other parent’s company, love and support. As we show, the law as it stands includes that.
The reason for the amendment is to illustrate that that is so, simply to make it possible to have this debate on Report. There was a tremendous amount of debate in Committee suggesting that parental alienation should not be contemplated. Sadly, I fear that, if the conduct that we have described succeeds, it will continue to happen. The Bill already, properly, includes a definition that deals with the kind of behaviour that underlies attempts to alienate the other parent from their child.
I strongly believe that this broad definition should not be restricted. I felt that the addition of qualifications in other amendments restricted the wide definition presently in the Bill. That is important, because domestic abuse is a large area and the definition manages to encompass it with great success. Therefore, the reason for the amendment is to illustrate that the conduct in question is included in the definition. Once that is accepted, as I hope it will be, the amendment will not be unnecessary.
Lord Lucas (Con) [V]
My Lords, as one would expect, that was a fascinating contribution. In some ways, it answers a lot of my questions. I am completely behind the purpose of this amendment. To my mind, as someone who is experienced but not expert, there is nothing about the phrases in Clause 1(3)(c) and Clause 1(3)(e) that naturally covers alienation behaviour. If one were to describe this in plain English, neither of those concepts would comfortably accommodate controlling behaviour which by its nature takes place remotely. Once you have got into the business of alienation, the two parents, typically, are not together. It is difficult to see what element of control or coercion can be exercised by alienation or how, in the context of domestic abuse, the wide phrasing of
“psychological, emotional or other abuse”
could certainly be construed as covering alienation. I hope that the Government will make it clear to me and the public in general, by what they say and do outside the Bill, that alienation absolutely is covered. But I need to see that in clear and unambiguous terms.
The Earl of Lytton (CB) [V]
My Lords, my support for this amendment comes without the personal experience of the noble Baroness, Lady Meyer, or the legal expertise of the noble and learned Lord, Lord Mackay of Clashfern. Like him, I hope that this amendment is unnecessary in reality. I cannot proceed without paying tribute to the noble Baroness for her unstinting efforts to ensure that alienation of children by one parent against another is accorded its proper place in discussion of the Bill. Her efforts and those of the noble Baroness, Lady Altmann, have been inspirational.
My concern throughout is for the protection of children and intervention in abusive situations at as early a stage as possible to ensure that their life chances are best fostered. It is well understood by psychologists that perpetrators of controlling and coercive behaviour will often try to separate their victim from outside contact—from friends, family, religious or social groups and even by preventing the means of communication necessary to seek help. As the noble Baroness, Lady Brinton, said, perpetrators are often the most confident, plausible and convincing of people. Their victims, by comparison, are often confused, anxious and timid. Both may have deeper attachment issues.
Here we are concerned with a different direction of travel, namely conscripting the innocent as proxies to alienation as part of a contest with a partner. There are doubtless many versions of this, commonly using a weak or compliant adult proxy, but there is one type that warrants special attention and that is the deliberate enmeshing of the children of a relationship by one party as a tool or lever against the other. No other identifiable category so conveniently presents itself as a vehicle for this leverage; no other proxy is so trustingly vulnerable to exploitation or so readily damaged, both in the short and long terms, by such actions.
It may be a self-justification of the perpetrator that it is for the better protection of the children from the other partner, and it merely invites retaliation by precisely the same means. I have mentioned before the perils of a wholly adversarial and corrosive no-holds-barred approach to sorting out these domestic contests. The resident parent is clearly in a strong position to influence, and issues such as access to children and much else may hang on this. The very presence of children may, paradoxically, prevent the sort of clean break that some might wish for. Typically, the children are and remain the biological offspring of both partners. What they receive from ancestors may influence what they pass down to their own offspring in turn. The toxic adversarial circumstances of a relationship breakdown of adults seems capable of rendering them particular harm. Children, as minors, are entitled to the protection of their parents and, where that fails, to the protection of society. In my opinion, society is bound to take note of those impacts on them that might lead to perpetuation of abuse in future generations.
I have been surprised by the degree of antipathy that I have experienced following the parental alienation amendment in Committee. I did not think that this was in the least bit controversial, nor worthy of such sustained criticism. But I have been heartened by the comments of many others—from male and female viewpoints—and I thank them all for the trouble they have taken to write to me.
The first criticism is that parental alienation is not defined, but it is accepted that alienating activity does exist and has long been recognised, so I take it that the use of children as proxies in the process suffers, in this instance, from a liability to multiple interpretations.
Baroness Sanderson of Welton (Con)
My Lords, I agree with the Government’s decision to keep a broad definition of domestic abuse. I believe that the coercive nature of alienation is covered in the Bill, so I am afraid that I do not consider this amendment necessary. However, having not spoken on this issue in Committee, I would like to speak briefly to say that, although the amendment is not needed, the issue is real.
I understand the concerns about the way alienation is used by perpetrators, but that does not negate the incalculable harm that was done to my noble friend Lady Meyer and her family and to the many other parents, grandparents and children who have found themselves in a similar position. Her determination to bring a greater understanding and awareness is impressive. It took great courage to stand up in this Chamber and share what is ultimately a very private, very painful experience. That experience should not simply be dismissed and I welcome the fact that work is ongoing in this area, so that we may properly understand this complicated, often devastating problem.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, I speak against Amendment 2 as I did against the comparable amendment in Committee. I also express my opposition to the inclusion of alienating behaviour in the statutory guidance.
In Committee, having begun examining the issue of claims of parental alienation with an open mind, I focused particularly on the research and expert evidence, including a complete issue of the Journal of Social Welfare and Family Law. Today, I will reflect on what came next. As I expected, having spoken in your Lordships’ House, written an accompanying op-ed and shared both outputs on social media, I got a significant response.
A lot of that response was emotional and angry. That did not surprise me, since we are talking about the most intimate of personal relationships, and I was more tolerant of aggressive tones than I would have been on other topics. But something struck me in many of the responses that I received. It was the use of the word “right”, as in “my right to see my children”, “parents’ rights”, “my right to direct my children’s future”. That crystalised some of the unease that I had felt in reading the academic claims backing a so-called syndrome of parental alienation—explicitly or implicitly, that was where they were coming from.
We live, of course, in what continues to be a patriarchy. Claims laid down for millennia that the father is the head of the household, that, as in ancient Rome—the classical world that some of our current Government seem to so admire—he had the right even to kill any member of it without the law offering any legal protection at all, are extremely hard to wipe away.
Under British law, until 1839 every father had the absolute right to keep control of his children should their mother leave. Even after 1839, only women who had the means to petition the Court of Chancery had a chance of keeping what we would now call custody, and then only if they could demonstrate an absolute moral clean sheet. The father’s morals were irrelevant. If your Lordships want to see how there is nothing new about coercive control, the life of Caroline Norton, whose brave, landmark campaigning won that change in the law, will demonstrate that. The global pervasiveness of this patriarchal ideology was referred to earlier by the noble Baroness, Lady Uddin.
The noble Baroness, Lady Meyer, said in opening this group that the Bill should not be caught up in gender politics. This issue—the entire Bill—is deeply, inevitably gendered, however much the Government might try to deny it. The struggle to get to the situation we are apparently in now, where the wellbeing of the child is predominant in decisions made about that child, was one long struggle against a society run by men in their own interests. But now we are faced with renewed efforts, a fightback for a “presumption of contact”—an assumption that if a child says they do not want to spend time with a parent, the other parent must be turning the child against them.
After entering the debate publicly in Committee, I was contacted by women who told me what presumption of contact and a fear of an accusation of parental alienation had done to them. I want to give them voice, so I will report one such case. I will call her Camilla, although that is not her name. Her account was of seven years of hellish coercive control and physical assault. She remained, at least in part, because the partner concerned told her that he would claim parental alienation if she left and did not allow wide access to the children. She was concerned about what would happen during that access.
After Camilla had left the relationship, she went through court case after court case as he claimed rights to parental access, while not paying the child maintenance that he could have afforded, and alleging that the children’s expressions of a desire not to spend time with him were a result of so-called parental alienation. Such offenders, as the noble Baroness, Lady Brinton, said, can be extremely convincing in a public space and in contact with professionals.
For fear of not being believed, Camilla told her child that should anything bad happen when they were with their father, the child should not tell her, but should instead tell an official authority figure. So, that upper primary school age child declared, in front of many peers and school officials at a school gathering, that their father was physically abusing his new girlfriend in front of them. Then, happily, safeguarding apparatuses kicked in, as they should have. A few weeks later that child disclosed, again to people outside the family, that they had been sexually abused by an individual that the father had left them with. It is a horrendous account and one that I will long remember, and I think of the difficulties and pressures on that child.
This brings me to my final point, one that I do not think our debate in Committee really brought out. It is about the impact on a child of being told that they are deluded, or that their mother or father is leading them astray, or lying to them, and that their own impressions, feelings, desires and beliefs about not being with a parent are some kind of false consciousness. When a child says that they do not want contact, they need to be given—no doubt for their own well-being—the chance to explore that with trained professionals and given the time to explain, to discuss and to vent their feelings.
Above all, children need to be listened to. Imagine what it feels like to have stated very clearly to officialdom that you do not want to spend time with a parent, that you have seen them doing things that are illegal or vicious or clearly damaging to other human beings, then being forced by a court to spend time with them anyway.
I was talking about these issues with a friend of mine who is over the age of 80. I was fascinated when she explained how, not through the agency of the court but through community and social pressure, she had been forced to spend teenage weekend days with her father who had separated from her mother years before. She felt that her father did not really want to be there, and she certainly did not want to be there as a teenager, but she did not have agency or control. More than 60 years later those weekends clearly still had an impact on her. We know that agency and control of one’s own self, being listened to and believed, are crucial for well-being.
It would appear that this amendment is not going to be pushed to a Division, so on one level this is academic. That is narrowly true in terms of the progress of this Bill, but in terms of defending a hard-won, long-fought-for principle of children’s interests being paramount in the official approach to custody and access, against the weight of those millennia when the father’s control was absolute or near absolute, this is an important debate. Let us keep the well-being of children as the sole goal—a very recent goal that is both a moral right and one that will give us the healthiest possible society.
Lord Cormack (Con) [V]
My Lords, that was a very powerful speech in favour of the aims of the amendment. At the end of the last debate in Committee when I spoke I said that I was somewhat ambivalent, although I totally supported what my noble friend Lady Meyer was seeking to do. That remains my position to a large degree, although I have come down—if it were a case of this amendment going to the vote, which I hope it will not—of probably being on the side of my noble friend. There is nothing more admirable in life than somebody who dedicates himself or herself to trying to ensure that others do not suffer as he or she has done. The noble Baroness’s campaign, over 20 years or more now, to ensure that other women and men should not have to tread the road she was obliged to tread is wholly admirable and commendable. There is nothing more wicked—and I chose my words with some care—than seeking to corrupt the mind of a child, particularly so that that child is turned against either their father or, more often, sadly, their birth mother.
We have devoted time recently to debating the importance of motherhood—there is nothing more important in the world. My noble friend Lady Meyer has clearly suffered greatly. She does not want others to suffer greatly in the same way, nor do any of us. It is a question of how we achieve her aim without making this Bill more difficult. As I listened to the noble Earl, Lord Lytton, and to my noble and learned friend Lord Mackay of Clashfern, I thought that between them they had got it right. They both signed this amendment but they do not really want it to be necessary.
The Deputy Speaker (Lord Lexden) (Con)
The noble Lord, Lord McConnell of Glenscorrodale, who is next on the list, has withdrawn, so I call the noble Baroness, Lady Watkins of Tavistock.
Baroness Watkins of Tavistock (CB) [V]
My Lords, I support this amendment in the name of noble Baroness, Lady Meyer. I thank her for all the work she has done to try to minimise the amount of involvement in the Bill necessary to make us all aware of this important issue. The amendment is designed to explicitly ensure that parental alienation is properly defined in the Bill. We have, of course, had indications today that it may be in statutory guidance, and that may be sufficient to ensure that the rights of children to see parents when it is appropriate to do so are adhered to. The amendment is not gender biased. It recognises that either parent, mother or father, may deliberately behave in such a way as to damage the relationship between a child and the other parent.
Parental Alienation UK has outlined a range of behaviours from one parent to another and I want to focus on one: when a parent makes false allegations of abuse, fitness to parent, substance abuse or mental health problems. I have worked with people with severe, enduring mental health problems where, when they have been severely ill and psychotic, it has been inappropriate for them to see their children. However, it is absolutely clear that, with modern treatment and access to supervised contact, most parents at some point should be able to see their children. That is not because of the rights of the parents. It is about the child’s right to know that the parent loves them and wants to see them, even if they are not in a position to look after them on a permanent basis. I believe that, as soon as is practicable, supervised access should be organised for children if they want to see the parent—the one they do not live with—if that parent is well enough to see them.
It is important that children know that both their parents want to stay in contact. If this is the case, the child is in a position, when they become an adult, to decide for themselves how much contact to maintain with each parent. I have heard other noble Lords oppose the amendment and I equally believe that no child should be made to see a parent without supervision if the court has decided that this would be inappropriate. I completely agree that we should recognise the vital role of Cafcass in this situation, but it is demeaning if the other parent of your child destroys letters, mementoes and gifts that you have sent, perhaps while you are too ill to see the child. These kinds of behaviour should be deliberately excluded and parents should be encouraged to try to work together through mediation. It should obviously be for the courts to decide and to determine whether parental alienation is occurring and to make decisions for access between a child and a parent, based always on the best interests of the child.
I believe that those who do not agree with this amendment have the same focus as I and others who are supporting it: to try to ensure that children grow up knowing that they have been loved, where this is so, and that they have been able, where it is safe to do so, to be in contact with both parents. I understand that the amendment may be better written within the statutory guidance and I look forward to hearing the Minister’s opinion on this matter.
Baroness Altmann (Con)
My Lords, I have added my name to this amendment and I pay tribute to my noble friend Lady Meyer for the work that she has done and, as my noble friend Lord Cormack said, the effort that she has put in to trying to make sure that the suffering that she has been through is not repeated or, should it be, that the victims have proper protection under the law.
I would be grateful if my noble friend the Minister could confirm what my noble and learned friend Lord Mackay asserted: that the deliberately broad definitions in the Bill, which I know my noble friend has explained to the House, are ground-breaking and deliberately so and provide the widest possible access to justice for victims by having broad definitions under which others can fall. Will “controlling or coercive behaviour” in Clause 1(3)(c),
“psychological, emotional or other abuse”
in Clause 1(3)(e), and “conduct directed” at their child in Clause 1(5) cover situations where a parent deliberately damages the relationship between their child and the other parent in order to alienate that child?
For example, a father of African origin wrote to me about his partner, who had been turning their four year-old child against him since they had decided to divorce. The child, previously loving, suddenly did not wish to spend time with him. He said: “My ex made several unfounded allegations of domestic abuse to stop me from seeing my child. Not a single allegation was proven, or true, but she constantly and unjustifiably obstructed my contact with my child. I recall that a year ago my child refused to have a bath that I had run for him. He said his mother told him, ‘Daddy puts witchcraft in the tub’.” He said that the alienation built up over time so that the child now refuses to see him. Can my noble friend confirm that that father would have protection under the Bill?
I have personal experience of other situations where parents were cut out from the lives of their children. The children were being manipulated or weaponised and the wider family cut off from grandchildren and nieces and nephews. I would never want a child to be forced to be with an abusive parent. However, the ex-partner of a friend of mine, who met a new partner from Australia and wanted to move there, decided to try to break the children away from their parent. In that instance, they were told: “Daddy does not love you, because you look like me and Daddy hates me. If you see Daddy, I will get sad. If you see Daddy, he will kidnap you, because he does not want me to be with you any more. If you say that you hate Daddy and you don’t want to see him, I will buy you a bike or take you on holiday.” This is something that has really happened. I hope that my noble friend will confirm that victims of such alienation will automatically be covered under the broad definitions, so that we will not need to press this amendment to a vote.
I hope that the controversy that seems to have been caused by the term “parental alienation”, which has driven the different wording of this amendment, can be settled by being tested in court. I fully agree with the noble Baroness, Lady Bennett, when she says that the child needs to be listened to and assessed by professionals. The key is for the courts to be aware that alienation such as in these examples may happen and, sadly, is not a rare occurrence. As my noble friend Lady Meyer said, we have had well over a thousand signatures in a short space of time from parents who themselves have suffered this form of abuse. If the courts are looking for this situation and can bring in experts to assess whether what the child is saying has been driven by fear instilled in them by the other parent unnecessarily, unreasonably, or deliberately to rupture the relationship with that parent, the justice system will be able to differentiate between the genuine cases, where a domestic abuser or abuser of children should not have unsupervised contact with their own child, and cases such as have been described.
Cases have been clearly identified in academic studies and evidence where parents who would otherwise be able to enjoy a relationship with their child are denied that opportunity and the child is denied access to that parent and their family. That can cause lifelong mental and emotional damage to the child and, indeed, to the parent. In some cases, the distress of being broken away from one’s children or grandchildren has caused suicide. I hope that my noble friend the Minister will be able to confirm that this is indeed covered by the Bill and I look forward to hearing what she has to say.
Baroness Fox of Buckley (Non-Afl)
It is a pleasure to follow the noble Baroness, Lady Altmann. That speech was so well articulated, passionate and thought-provoking. I also echo and “Hear, hear” her comments on the exemplary work of the noble Baroness, Lady Meyer, on this issue.
I have previously expressed concern that the Bill expands the definition of domestic abuse too widely because I worry that some categorisations of abuse, such as emotional and psychological, are too subjective and broad to guarantee justice. Every time I look, a new category of abuse has been added. We have just heard from the noble Lord, Lord Wolfson of Tredegar, that we now have “spiritual” abuse. Even the focus on domestic abuse is endangered as we stretch what constitutes “domestic” far wider than I think is helpful. My concern is that too much is being thrown at the Bill, meaning agencies and the police will not be able to see the wood for the trees.
The Deputy Speaker (Lord Lexden) (Con)
The noble Lord, Lord Balfe, who is next on this list, is unable to take part in this debate, so I call the noble and learned Lord, Lord Morris of Aberavon.
Lord Morris of Aberavon (Lab) [V]
My Lords, it is a pleasure to say it is beyond argument that this is an important Bill. In my professional career, I dealt with many cases of child abuse. I practised at the criminal Bar, not the family Bar. Fortunately, sitting as a recorder, I did not have to try or sentence anyone convicted of child abuse.
It is important to get the legislation right. At my first reading, I thought the Bill was sufficiently comprehensive to deal with any wrongdoing. The steps in the ladder are clear: first, the relationship is set out in Clause 1(2); then we go on to the type of relationship, supplemented in subsections (3) and (4); then subsection (5) deals with indirect behaviour. The amendment’s supporters seek to redefine this, by adding words to give an example of behaviour which is reprehensible. I understand the aims of the proposers and their real concerns. We have listened to the passionate speeches made today. The noble and learned Lord, Lord Mackay, has added his name to the amendment. From long experience, I would listen to his words, and the House always does with very great respect.
My fear is that this amendment is over-prescriptive. Putting this into the Bill might limit the generality of the encompassing nature of subsection (5). At the moment, I have serious doubts about whether the amendment is needed at all, as such particularising may limit the thrust of the subsection so far as other conduct is concerned. In these circumstances, having heard all the arguments, I would recommend its rejection by your Lordships.
Baroness Stroud (Con)
My Lords, I commend my noble friend Lady Meyer on her courage and resilience in tabling this amendment again today. I first had the privilege of meeting her and hearing her story many years ago, and since then she has been a tireless campaigner on this issue despite, as we have seen both today and in Committee, often intense and personal challenge.
As we have heard, parental alienation is a devastating form of abuse that can extend for decades and have deeply traumatic effects on both the children and the excluded parent. There has, however, been strong resistance to recognising this as a form of abuse. Those who oppose it argue that abusive parents may themselves use the defence of parental alienation to continue their abuse. Surely, though, this is precisely why we have judges. We must have confidence in our courts and our police to make these judgments, just as they have to make countless others every day of the week.
The amendment seeks insert into the legislation the line
“such as a parent’s behaviour deliberately designed to damage the relationship between a child of the parent and the other parent”.
I am hopeful that the Government should be able to confirm that this is indeed included in the definition of coercion, as my noble and learned friend Lord Mackay and my noble friend Lady Meyer have requested. This addition would specifically draw attention to parental alienation while simultaneously giving the family courts a sound basis on which to better distinguish between genuine and false allegations of parental alienation. The amendment identifies parental alienation and protects those who are vulnerable from exploitation of the law.
The dynamics expressed in the amendment are important for a number of reasons. Alienation adversely affects the psychological development of a child in that it prevents a natural, healthy bond and relationship with a parent. A child needs to be nurtured and protected by its mother. Erica Komisar, a leading expert in attachment theory and the neuroscience of motherhood, highlights that children are at a higher risk of social, emotional and developmental issues when the essential presence of a mother is missing. But it is equally important that the child should have a relationship with their father. In a major study by the Journal of Applied Economics entitled The Impact of Income and Family Structure on Delinquency, it was found that when the interactions between a parent and a child diminish, such as in the case of parental alienation, the child perceives a decline in that parent’s benevolence. If the decline is sufficient, the child will accept its implications and move to feelings of abandonment, alienation and a lack of trust. Both the parent and the child are worse off.
Research from the Institute for Family Studies has also found that, controlling for race and parental income, boys raised without their father are much more likely to use drugs, engage in violent or criminal activity and drop out of school, while girls are more likely to engage in early sexual activity or have a child out of wedlock. The consequences of parental alienation can be deep and severe on the next generation.
There can be no doubt that judicial decisions in cases involving children must take account of all aspects of the family dynamic, including all types of abuse. There is a need for qualified professionals to assist the court in assessing whether there is abuse and, if so, its severity and how it should affect child/parent residence and contact arrangements. But the need for expertise in handling these delicate situations should not dissuade us from addressing this often hidden but deeply damaging form of abuse.
The Bill is strengthened if it captures all forms of domestic abuse and improves outcomes for those who are vulnerable to experiencing it, and we look to the Minister today to confirm that the concept of alienation is included within the definition of domestic abuse.
Baroness Chakrabarti (Lab) [V]
My Lords, I too wish to pay tribute to the noble Baroness, Lady Meyer, for her two decades of campaigning after a horrific experience that most people would not be able to turn into such a positive contribution. I wish her, the co-signatories to the amendment and all Members of your Lordships’ House a happy International Women’s Day. It is a celebratory moment, as well as a moment of remembrance which was started over 100 years ago by radical working women.
I also pay tribute to the noble Baroness, Lady Meyer, for doing something that seems all too rare in our polarised and sometimes even toxic public discourse. She has listened. I did not participate in this part of the debate in Committee, but I was struck by her speech and by the contributions that were informed by the work of various women’s organisations, and survivor organisations in particular, about the contested or loaded nature of the term “parental alienation”. I am not a psychologist, a social worker or an expert on this topic, but I was moved by contributions from those who are, not least the noble Baroness, Lady Bennett of Manor Castle.
It seems that the noble Baroness, Lady Meyer, has indeed listened and has attempted in her reformulation to address behaviour rather than syndromes in a precise way that is more appropriate to legislation on difficult issues. I have no doubt that many abusive men will seek to use the term “alienation” as a stick with which to beat the surviving former partner, but, equally, I have no doubt that men and women are capable of weaponising their children during terrible relationship breakdown. I also have no doubt that this is a gendered world and a very unequal one, whether we like it or not, and that this inequality affects women, but also men and boys. It is a very vicious spiral indeed.
Lord Curry of Kirkharle (CB) [V]
My Lords, I support the purpose of this amendment, and in doing so I also pay tribute to the work of the noble Baroness, Lady Meyer, on this matter. She has been consistent in her determined efforts to ensure that the impact on children is not forgotten in debates on the Bill and that parental alienation is much better defined than is the case at present. I believe that the Bill would benefit from greater clarification.
It is vital that, among the many difficult and complex issues within the Bill, we consider the impact that parental behaviour can have on their children. Sadly, there are times when the actions of one parent can, over time, damage and diminish the child’s relationship with the other parent.
I decided to participate in this debate because I have witnessed this behaviour and the devastating impact it can have, through manipulation, the loss of self-esteem and confidence, the fear of even correcting a child for misbehaviour in case it results in reporting back to the other parent and, in doing so, perpetuating the abuse and alienation. This can obviously have lasting emotional and psychological effects on the parent but also, importantly, on the child.
As has been stated a number of times, these are complex and sensitive issues, and such instances must be handled with extreme care, bearing in mind the particular circumstances of each individual case. However, when a child is forced into choosing sides in an argument, when the emotional stability and authority of one parent is consistently undermined by the other, this puts the child or children in a potentially traumatic situation. This should be considered a form of abuse and included within the scope of the Bill.
The consequences can include insomnia, depression, lack of confidence as well as long-term difficulties in rebuilding relationships and in relationships with others. This amendment makes it clear that damaging the relationship between a child and a parent is abusive behaviour. By extension, this makes the Bill more thorough in the abuse it identifies and seeks to prevent. I acknowledge the wise advice from noble and learned Lords during this debate, and I hope that the Minister will respond positively to this discussion.
Lord Polak (Con)
My Lords, I spoke in support of my noble friend Lady Meyer’s amendment in Committee and do so again. I congratulate my noble friend Lord Cormack, for I agreed with his every word.
I continue to read, and I continue to listen. The arguments have been well made, and again I pay tribute to my noble friend Lady Meyer for her courage and resilience. It is clear to me that there are difficulties, opinions and alternative views—all that is legitimate. What is not legitimate is that the experiences and feelings of those who have suffered from alienation are either denied a voice or told that this does not happen. It plainly does.
The noble Baroness, Lady Chakrabarti, made a sensible point about the danger of creating a hierarchy of abuse, which I agree with. Can my noble friend the Minister assure me that the genuine and real cases of parental alienation—of which, sadly, there are many—must be heard? It could be a severe form of abuse if mention of parental alienation is not made within the guidance.
Baroness Hoey (Non-Afl) [V]
My Lords, I have no hesitation in supporting the aims of this amendment standing in the name of my friend, the noble Baroness, Lady Meyer, and others. I feel very strongly that we will listen—I certainly will—to what the Minister is going to say, because there are difficulties. I have listened to some of the opposition to the amendment, although there seems to be a very general agreement on the principles. It has now become a very wide-ranging Domestic Abuse Bill, so I really need to be satisfied that the aims and principles of what we are trying to do in this amendment, and what the noble Baroness, Lady Meyer, is trying to do, will actually be satisfied without the amendment.
I believe that we should use the Bill to protect children and their victim mothers or fathers from psychological abusive and coercive control. During my 30 years as a Member of Parliament, I had many cases of parents, male and female, coming to see me and telling me in harrowing tones what was happening. They did not use the words “parental alienation”—it is a very Americanised term, which I personally do not like. But I listened to the some of the ways in which they talked, very simply—[Inaudible.]
Lord Parkinson of Whitley Bay (Con)
I think we might have lost the connection to the noble Baroness, Lady Hoey, so we will go to the noble and learned Baroness, Lady Butler-Sloss.
Baroness Butler-Sloss (CB) [V]
My Lords, I understand and sympathise with those who have been the victims of a spouse or partner who has turned the children of their family against them—of course it takes place. It is an intensely sad situation, deeply unfair to the children as well as to the victim parent.
As a family judge, I tried a number of such cases, and I have to tell noble Lords that I very nearly wept in court when all efforts to change the children’s attitude had failed. I remain with a vivid recollection of some of those cases. But we need to recognise that there are two different situations: there are the children who witness the abuse of a parent against the other parent or have suffered from hearing it, and there are the children who suffer from the parent who is alienating them from the other parent. That is the background, and it is important that judges understand the context and can differentiate between the absent parent, who by his or her actions has forfeited the right to have a proper relationship with the children, and those who have been wrongly and unjustly deprived of such a relationship.
As I said in Committee, this requires judicial training. I have reflected since Committee on what the training should be and the extent to which it is already carried out, and I have done a little research. In my view, it is already very well provided by the Judicial College, which is chaired by a Court of Appeal judge. It is divided into different committees, and one such committee deals exclusively with family issues.
When I was a High Court judge, I was for several years the chairman of the family committee of the predecessor of the college. Newly appointed judges have mandatory training before they can try family cases, and there is regular, continuing training for family judges and magistrates.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am terribly sorry to interrupt the noble and learned Baroness, but I think she may be speaking to a later amendment, which we will reach in the ninth group. We are currently speaking to the amendment in the name of the noble Baroness, Lady Meyer, on parental alienation.
Baroness Butler-Sloss (CB) [V]
Although I have the deepest sympathy for those who have suffered this unjust behaviour from the other spousal partner, I do not believe that the amendment, for all its good intentions, should be part of the Bill or should be set in primary legislation. It is telling the judges to do what they do already and will not change the situations on the ground. I do not believe the moral or psychological effect of primary legislation will have any effect on those who behave in such a way, nor help the sufferers of this serious, unfair behaviour. Consequently, I do not agree with the noble Baroness, Lady Meyer, that the family courts would benefit. On the contrary, it would give them no support at all. I also disagree with the view of Cafcass and, for these reasons, I do not support the amendment.
Lord Harries of Pentregarth (CB) [V]
My Lords, I was very distressed during Committee on the Bill at the way the House has become so polarised over this amendment. I believe a way can and should be found to do justice to both sides of the argument, for both raise real and serious concerns.
Clearly the term “parental alienation” has become controversial, coming as it does from the United States, where it has been so closely linked with gender politics, so I welcome the rewording of the amendment, where what we are dealing with is clearly defined.
Parental alienation was referred to in earlier debates as a “concept”, or even prefaced, as in the debate this afternoon, sadly, by the qualification “so-called”. But the concept arose on the basis of experience. The fact is that very many people, both men and women, have been alienated from their children as a result of the unacceptable behaviour of their partner or former partner. That it exists I have absolutely no doubt. Do the opponents of this amendment really doubt this?
At the same time, it is clear, particularly from the evidence of Women’s Aid, that some people use the concept of parental alienation to cover up child abuse. I am sure this happens, and I can believe that the greatest number of perpetrators are men.
So we are dealing with two realities, both of which have to be taken into account. In any given case, the evidence has to be heard and assessed and judgment given. This is what courts are for. This is what Cafcass is for. They know what it is and can recognise it for what it is. They have developed the child impact assessment framework to
“identify how children are experiencing parental separation and to assess the impact of different case factors on them, including parental alienation.”
At the same time, they will be well aware that there are cases where this is a cover for child abuse. This, too, they can recognise for what it is.
These are very difficult decisions. I would not like to have to make them myself. But the point is that there are people who are trained to make such decisions, and the courts use them. So I very much hope that the Government will accept this amendment, or at least, as the noble and learned Lord, Lord Mackay, suggested, that the wording proposed in the amendment is clearly understood to be an example of coercion, and that this is set out equally clearly in statutory guidance.
Baroness Helic (Con) [V]
My Lords, I have listened carefully to the speech of my noble friend Lady Meyer and to those who support the amendment. I recognise their sincerity and good intentions and their desire to do the right thing for the victims of abuse and, above all, for children. But I am afraid I continue to have very serious concerns about the amendment and the ideas it seeks to introduce into the Bill. I do not think it is required to help those victims whom noble Lords wish to help. In fact, I fear that it will do the opposite; it will empower abusers. I am concerned that, despite the change in language, the amendment still rests on the idea of parental alienation and serves as a means of embedding that concept, so open to misuse as a means of covering up domestic abuse, in law. Parental alienation is a flawed model for addressing the experiences of the parents and children the amendment seeks to help.
I agree that parental behaviour
“deliberately designed to damage the relationship between a child of the parent and the other parent”,
in the words of the amendment, is unacceptable, but the concept of parental alienation is so open to misuse in a way that is deeply harmful to children who are victims of domestic violence that we must be extremely cautious. Its lack of rigorous scientific foundation or clear definition means that it does not in assist in addressing abuse. Rather, it has become a vehicle for minimising and evading legitimate allegations of domestic abuse and child abuse by suggesting that child victims, often suffering serious medical trauma and with valid reasons for resisting contact with the abusive parent, have been manipulated by the so-called alienating parent. In the United States, where the concept originated, when a parent claims alienation, courts are more than twice as likely to disbelieve evidence of any type of abuse and almost four times less likely to believe a protective parent’s claims of child abuse. The result is that children are often forced to live with their abuser and are at risk of serious harm, lifelong trauma and even death.
We do not need this imported into our law. I do not wish to diminish or ignore the experiences of those not feel that their relationships with their children have been undermined and damaged by a protective parent. They are victims too, and we must hear their voices. I am also open to being told that I am wrong, and I have sought additional clarification from experts on domestic abuse. They tell me that this behaviour is an example of coercive control. We already have the legal means to tackle it under existing laws on coercive control. The recognition of children as victims in the Bill should strengthen that, as should the very welcome government amendment on post-separation abuse.
A clause to tackle this behaviour already exists, and there can be no case for us introducing any concepts or amendments which come with so many proven risks to children attached. However, there is a strong case, as I shall argue later in my speech on my amendment on training, for the training of judges. Children must have contact with both parents, but not at any price. We cannot dismiss a child’s voice when they disclose abuse.
Before I close, I believe it is important to make one final point. This is not aimed at anyone in your Lordships’ House, but it is necessary as a matter of basic principle. I think it serves to confirm some of what I have said about the dangers of the concept of parental alienation that the behaviour of some of its proponents is aggressive, bullying and abusive. They attempt to silence anyone who disagrees with them. People who have dared challenge parental alienation have faced vitriolic attacks and regular attempts to undermine their career and even see them sacked from their job. Respected experts have been called fraudulent, corrupt, lying and biased. People who have devoted their career to tackling abuse have been described as child abusers.
We cannot ignore those attacks. Since we began to debate the Bill, they have increased. One person who has faced a great deal of harassment tells me that it has significantly escalated and continued on an almost daily basis since the Bill received its Second Reading in your Lordships’ House.
I have spent most of my career working in foreign policy. I have never witnessed behaviour such as this until I became involved in these debates. Many supporters of parental alienation outside this House seek to use abusive behaviour to silence their critics and, in doing so, they serve only to remind us why we have such serious concerns about this concept and why it is imperative that we do not allow it into our laws.
Lord Winston (Lab) [V]
My Lords, I thank the House for its indulgence. I apologise, because my internet connection collapsed completely during the speech of the noble Baroness, Lady Brinton, and I missed a great deal of what she said.
Parental divorce or separation is the second most prevalent adverse event during childhood. There is plenty of evidence that most children who experience parental divorce do not develop long-lasting problems. Many studies show that children are remarkably resilient. Long-term studies of children in Romania after Ceausescu’s regime, for example, showed that, provided they were adopted into loving, caring families, they returned to an almost normal existence.
Even so, there are certain times when biology conflicts with resilience—for example, when children are first socialising, with puberty, with adolescence and with certain mental conditions. Nor can we ignore good follow-up studies of all ages which report problems. They confirm that, compared with children who remained in two-parent families, young people who experience parental divorce are at increased risk of a whole host of difficulties. These include depression later in life and may involve poor social values and behaviour, lack of empathy and various psychopathological disorders, substance abuse and academic underachievement.
These children and adolescents are much more vulnerable to various pressures, particularly when one divorced or separated parent deliberately attempts to undermine his or her offspring’s relationship with the other parent. This may not always be deliberate and, when it is, it may be difficult to prove in court. There are examples where this is clear cut, with substantial evidence of this kind of damaging behaviour.
As the noble Baroness, Lady Meyer, firmly said in her speech, this amendment is unquestionably about child abuse. Research clearly shows that this can have long-term effects on children as they become adults. Moreover, it is possible—although this is more difficult to show in long-term studies—that traits which a child may develop in consequence of this kind of behaviour may be passed on. The child’s own offspring—the grandchildren of the fractured experience—may be affected. There is, incidentally, increasing evidence of a biological mechanism for such inherited behaviour. There is a significant indication that this may be epigenetic—a chemical alteration which influences the way in which the genes function. Evidence is growing that it may be true for one particular set of conditions which are of growing interest in human development.
Autism spectrum disorder—so-called ASD—is a group of neurodevelopmental disorders in which multiple genetic and epigenetic factors definitely play a role. As long ago as 1991, the famous expert, Professor Rutter, pointed out mistaken stereotypes in psychiatric and behavioural genetics. He was decrying the idea that strong effects might mean that environmental influences must be unimportant. In America, Judith Kroll has pointed out that parental behaviour is critical in enhancing or reducing the negative effects on autistic children. This is often a particular problem with one or other, or both parents. Her study is a useful marker to consider.
I want briefly to mention Karey O’Hara’s remarkable follow-up study from Arizona, looking at 240 children over six to eight years. The study showed very clearly quite subtle changes in these children’s relationship with one or the other parent. Mental health problems, drug abuse and risky sexual behaviour were all common. She and her colleagues concluded that children in families with high levels of post-divorce conflict, which could certainly include the sorts of behaviour to which the noble Baroness, Lady Meyer, referred, are an appropriate target group for preventive interventions. We know that these interventions work; they must surely be better than recourse to law. None the less, it is an important kind of child abuse because it can occasionally be hidden and difficult to see.
This is a vital discussion on an important amendment, and I am glad that the noble Baroness, Lady Meyer, has seen fit to introduce it on Report.
Lord Paddick (LD) [V]
My Lords, in Committee, we heard the very moving testimony of the noble Baroness, Lady Meyer, whose children were abducted by their father and kept in Germany with very little contact between them and their mother. It appears that, during that separation, the father turned the children against her. It is a shocking and upsetting case of parental abduction. I pay tribute to the noble Baroness for her campaigning work on parental abduction. A friend of mine in Oslo, who has shared custody, is having the relationship between him and his son poisoned by the mother.
As my noble friend Lady Brinton said, such behaviour is already covered by Clause 1(3)(c) and (e) and subsection (5) of the Bill as it stands in a way that economic abuse is not. Parental alienation amounts to controlling or coercive behaviour and psychological or emotional abuse. It includes, as the noble and learned Lord, Lord Mackay of Clashfern, has said, conduct directed at another person—for example, the victim’s child.
As the noble Baroness said in Committee, using children as weapons in a war by one parent against the other can equally apply to mothers seeking to alienate fathers as to fathers seeking to alienate mothers. It can inflict damage on both parent and child. I fundamentally disagree with the noble Baroness, Lady Bennett of Manor Castle, that this a gendered issue.
In Committee, the noble and learned Baroness, Lady Butler-Sloss, who has a wealth of experience, said that it is important to leave discretion over contact and parental alienation to the judges. She reinforced that this afternoon. As she said, there are two types of case: one where a child witnesses abuse and turns against the perpetrator, and the other, where there is a malicious attempt to turn a child against a parent. Abusive behaviour turns children against abusers.
As with many areas of domestic abuse, the issues here are complex, and there are both advantages and disadvantages to the noble Baroness’s amendment. In Committee, my noble friend Lady Brinton quoted from a Ministry of Justice report which cites:
“Fears of false allegations of parental alienation are clearly a barrier to victims of abuse telling the courts about their experiences.”
The domestic abuse commissioner-designate has talked about
“the potential for the idea of ‘parental alienation’ to be weaponised by perpetrators of domestic abuse to silence their victims within the Family Court.”
The noble Baroness, Lady Meyer, said that the justice system needs to be better equipped to deal with these issues. As my noble friend Lady Brinton said, the House will consider in Amendment 44 whether there should be mandatory training, so that magistrates and judges at all levels might be better trained in this and other areas of domestic abuse. I accept that the noble and learned Baroness, Lady Butler-Sloss, thinks that the existing training is adequate but, along with the noble Baroness, Lady Helic, we believe that there should be changes to the training of the judiciary, rather than
“behaviour deliberately designed to damage the relationship of a child of the parent and the other parent”
being listed as part of the definition of domestic abuse in the Bill. For these reasons, we do not support the amendment.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, I remind the House that I sit as a family magistrate in central London and regularly deal with these types of cases. I have to say that this has been a better debate than the one we had in Committee. The reason is that many of the speakers showed a greater appreciation of the complexity of these types of cases, which we hear in court. A number of speakers, including those who put their names to this amendment, stated that if the Minister were to make it crystal clear that the term “parental alienation” will be dealt with fully outside of the Bill, then they would think that a good solution to the issue in the amendment. We have also had a number of very eminent lawyers—the noble and learned Lords, Lord Mackay and Lord Morris, and my noble friend Lady Chakrabarti—clearly say their view is that the amendment is not necessary, as long as the issue itself is addressed elsewhere.
We have had a lot of contributions and I will not go through all the speeches. However, I want to pick up a couple of points noble Lords have made, in particular a contribution by the noble and right reverend Lord, Lord Harries of Pentregarth. He spoke about the distressing and polarising effects of the issue being debated in Committee; I think we have all received a huge amount of lobbying material since then. He also said that he had no doubt that parental alienation exists and that professional organisations such as Cafcass, through its child impact assessment, and the court system try to address the whole range of domestic abuse, including parental alienation.
I want to make one point, which has not been made by any other speaker, and stems from that made by the noble and learned Baroness, Lady Butler-Sloss. She summarised it, in a typically succinct way, by saying that the effects on the child are twofold: first, the witnessing, either directly or indirectly, of domestic abuse, which is clearly extremely bad for the child; and secondly, the malicious attempt by a parent to turn the child against the other parent. She has characterised that issue accurately, but I have been sitting as a family magistrate for about eight years now and have seen many cases where a parent has admitted, perhaps through a conviction, that their behaviour means they have committed such abuse. I have seen that many times but never seen a parent admit trying maliciously to alienate the child from the other parent. I have simply never seen a parent acknowledge that they have indulged in such a course of action. The court is of course in a very difficult position, so we move on to the possible use of experts, training for the judiciary and the life experience of magistrates and judges who are dealing with these cases.
I come back to where I opened: there has been a greater acknowledgement by the contributors to today’s debate of the difficulty in making these decisions. Of course, I am in favour of more training—magistrates, lawyers and judges are trained in any event, but more training would be welcome. I hope that the Minister will manage to convince the noble Baroness, Lady Meyer, that it is not necessary to press her amendment. I personally believe that the issues she has raised and the intensity of the speeches she has given can be properly met through regulations under the Bill.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, on this International Women’s Day, I pay tribute to the courage of and thank my noble friend Lady Meyer, and other noble Lords, for their continued engagement on this issue. As pointed out by the noble and right reverend Lord, Lord Harries of Pentregarth, parental alienation clearly proved to be one of the most polarising issues in Committee. He challenged us to focus on the areas of agreement and I will try to do that. It was apposite that the noble Lord, Lord Ponsonby, referred to the comments of the noble and right reverend Lord and said that we had a better debate today than we did in Committee. I agree. We are beginning to develop a shared understanding on where we are trying to get to on this, and to understand what points the amendment is driving at.
My noble friend Lady Meyer has lived experience of this very difficult, deeply distressing and personal issue, and 19 years of campaigning experience to boot in the area of alienating behaviours. I pay tribute to her; in no way do I seek to deny or to minimise the devastating impact that alienating behaviours can have on family life. But we must carefully consider the suggestion that legislation in the form of my noble friend’s amendment is the appropriate response here, and I hope that I can give her comfort on that. I will now outline the aspect of things that I think go to the heart of the Bill and the nub of the point that she is trying to make.
Our approach in Clause 1 is to define domestic abuse by reference to types of abusive behaviours, as pointed out by my noble and learned friend Lord Mackay of Clashfern and by the noble Lord, Lord Curry of Kirkharle—although he agrees with the amendment—and not by reference to the form in which those behaviours may be manifested. We are fearful of creating a hierarchy of behaviours by appearing to give more weight to one manifestation than another, and do not—as my noble and learned friend Lord Mackay said—wish to inadvertently narrow the Clause 1 definition by giving specific examples such as that proposed by my noble friend in her amendment to Clause 1(5), as the noble Baroness, Lady Chakrabarti, pointed out. The behaviours to which my noble friend Lady Altmann referred would be in scope; whether the examples she cites would be covered would clearly be a matter for the courts to decide.
As I indicated in Committee, I accept that there are circumstances where alienating behaviours indicate a wider pattern of emotional or psychological abuse. However, where this is the case the definition of domestic abuse in Clause 1—subsections (3)(e) and (5) are particularly relevant, as the noble Lord, Lord Paddick, the noble Baronesses, Lady Chakrabarti and Lady Brinton, and the noble and learned Lord, Lord Morris of Aberavon, said—already applies and, as such, does not need to be further expanded.
To answer the question about statutory guidance asked by my noble friend Lady Meyer, and almost all noble Lords who spoke in this debate, the draft statutory guidance covers alienating behaviours. I am very grateful to noble Lords who have already shared their views on the guidance and we welcome further feedback and suggestions for improvement. There will then be a further opportunity to comment on the guidance when we formally consult following Royal Assent.
One of the strengths of the Bill is that it recognises the impact of domestic abuse on children, considering them as victims in their own right. From the perspective of risk of harm to the child, the relevant legal framework is provided for in Section 1 of the Children Act 1989, together with the definition of harm in that Act. My noble friend Lady Meyer and the noble Earl, Lord Lytton, referenced the Cafcass definition of parental alienation. Although that definition supports our shared understanding of the impact of alienating behaviours on the child, it is an important point of clarification that the Cafcass definition is not one of domestic abuse—we need to be clear about that. Cafcass is clear that there are a number of reasons why a child might resist time with, or be hostile towards, one parent following separation or other breakdown of a parental relationship.
Baroness Meyer (Con)
My Lords, first, I would like to thank those who put their names to my amendment: my noble and learned friend Lord Mackay, my noble friend Lady Altmann and the noble Earl, Lord Lytton. I also thank everybody who spoke today, particularly those who spoke in favour of the amendment. It has been a very interesting debate and I thank everybody for participating.
In the light of the conclusions reached, I now realise that my job has not been done whatsoever. There is still a huge misunderstanding about the point of my amendment and what parental alienation—call it what you like—is about. We are talking not about false allegations but real allegations. We are talking about parents who have been abused by the other parent using the child; this is a terrible form of abuse.
Listen to the London Victims’ Commissioner, who has actually been attacking all the mothers and fathers talking about parental alienation; look at the Twitter war that has been going on; it has been very ugly. I am really hurt that people say that you have to listen to the victims, but they are choosing which types of victims. Hordes of parents, some of whom are probably listening now, have been emailing me and signing letters saying, “Please stand for us”. Their voices are not heard.
I am really disappointed that the Government have not listened and understood what I was trying to do. I understand that some mothers are worried that this could be used against them, but, as everybody has said, the courts could make a decision. The courts obviously need a bit more training but because this issue is so complicated, we also need to involve psychiatrists.
There is a deep misunderstanding about what constitutes an alienated—or whatever term you use—child. Usually, those children have been separated from and have no access whatsoever to one of their parents, and their parent is constantly telling them that the other parent does not love them. Some have even been told that their other parent is dead. In my submission I had letters about people who committed suicide and letters from parents of children who committed suicide.
I hope that, as a minimum, the Minister can guarantee that this issue is going to be addressed in the guidance. More debate and conversations need to take place, because it needs to be understood better. In the light of the evidence before me, I will withdraw my amendment, but I very much hope that something will be done. I will probably come back to this issue because I have fought for it for 19 years and I have still not communicated what it is really about. I think I still have a war ahead of me. However, I beg leave to withdraw the amendment.
The Deputy Speaker (Lord Haskel) (Lab)
We now come to the group beginning with Amendment 4. Anyone wishing to press this or anything else in the group to a Division must make that clear in the debate.
Clause 2: Definition of “personally connected”
Amendment 4
“( ) A is a carer for B who is a disabled person.”Member’s explanatory statement
This amendment and the amendments at page 2, lines 34 and 37, in the name of Baroness Campbell of Surbiton, would bring the relationship between a disabled person and their carer within the definition of “personally connected”.
Baroness Campbell of Surbiton (CB) [V]
My Lords, in moving Amendment 4 to Clause 2 I will also speak to my Amendments 5 and 6. These amendments would bring the abuse of disabled people by carers within the scope of domestic abuse under Clause 2. I should mention that I have also tabled Amendments 46 and 47, which would make identical changes in relation to controlling or coercive behaviour under Section 76 of the Serious Crime Act 2015. They will be discussed on another day.
I thank the Minister, the noble Baroness, Lady Williams, and her officials for our recent meeting, which was very helpful in clarifying our mutual concerns, which I will refer to in a moment. Sadly, I have heard nothing further since, so I assume that the Government are not yet convinced that the Bill should include disabled people and carers. I hope that, after hearing today’s contributions, the noble Lord the Minister will commit to return at Third Reading with an alternative clear offer, otherwise I am afraid that I will have no other option than to divide the House.
Amendment 4 has cross-party support. I am grateful to all co-signatories for their advice and backing on this issue, and to many other Members across the House who also wished to be co-signatories. Since Committee I have given the issue a lot of attention, consulting, among others, organisations dealing with disabled victims of domestic abuse. I also sought a legal opinion from lawyers specialising in social care and disability discrimination.
The vast majority of carers are caring, compassionate and utterly loyal. We owe our lives to them—I know I do—but in a small number of cases this is not so. Domestic abuse is not limited to family members or sexual partners. That is what we used to understand by the term; today, we know better. Disabled people of any age can be abused by those on whose care they rely. These relationships often involve an imbalance of power and are just as susceptible to abuse as those between family members or partners. Disabled people may be wholly dependent on another to live an independent and active life, 24 hours a day. That dependency and the trust that it requires makes them an easy target to exploit or abuse.
The Joint Committee on the draft Bill recognised that abuse by carers “mirrors” abuse
“seen in the other relationships covered by this Bill”,
and, importantly, occurs in a domestic setting. It recommended amending Clause 2 to include all disabled people and their carers, paid or unpaid.
Some of our closest and most intimate personal relationships are with those who care for us. Many carers see us naked in the shower, have access to our bank accounts and observe us at our weakest, physically, mentally or emotionally. This can make us feel very vulnerable. They are often privy to things that we do not share even with our family or partners.
I speak from 30 years of personal experience, but not only from that: I am also as a former CEO of the National Centre for Independent Living, working with thousands of disabled people who managed their carers, often termed personal assistants. I remember one haunting example of abuse of a severely disabled man without speech who came to me. He had a communication board that was regularly removed from reach so that his carer was not interrupted. He was too afraid to complain because, as he put it, of the “likely consequences”. Evidence from Stay Safe East and other organisations clearly demonstrates that such abuse continues today.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, it is a great pleasure to follow the noble Baroness, Lady Campbell, and to support her in her wish to include carers within the scope of the Bill. As she said, this set of amendments would bring the relationship between a disabled person and their carer, whether paid or unpaid, within the definition of “personally connected”.
As the noble Baroness has said, the Joint Committee on the Bill recommended that carers should be included, after receiving significant evidence from the charity Stay Safe about the level of abuse within these highly personal and close relationships. I remain puzzled as to why the Government are not agreeing to do this. As the noble Baroness said, part of the reason is that the Government believe the group covered by these amendments is fully protected by existing legislation, primarily within social care Act safeguarding measures. However, I challenge that. As Stay Safe East has said, disabled women are three times as likely to experience domestic abuse, and four times as likely to report abuse from multiple perpetrators, as non-disabled women. It does not look as though the safeguarding measures are preventing that. Disabled women are also up to three times as likely to experience domestic abuse at the hands of family members, some of whom will also be their carers. We also know that disabled people also experience abuse from paid and unpaid carers or personal assistants.
The noble Baroness has also referred to the opinion from Bindmans LLP. The summary of their opinion is very clear:
“a. The relationship between disabled people and their carers is analogous to the other relationships which fall within the definition of ‘personally connected’ for the purposes of clause 2(1) of the DA Bill.
b. None of the existing legislation identified by Government provides equivalent protection against domestic abuse for disabled people so as to make it unnecessary for the relationship between disabled people and their carers to be brought within the scope of clause 2(1), and thereby the substantive provisions of the DA Bill.
c. Failing to bring the relationship between disabled people and their carers within the scope of clause 2(1), and thereby the substantive provisions of the DA Bill, is likely to result in unlawful discrimination against disabled people contrary to Article 14 European Convention on Human Rights (ECHR)”.
If the Minister is relying on existing legislation and safeguarding measures, I am afraid that the evidence is that this is not sufficient. That is the reason why the noble Baroness has argued so persuasively for this amendment, and I very much hope that she presses it to a Division.
Baroness Brinton (LD) [V]
My Lords, I too thank the noble Baroness, Lady Campbell, for tabling these amendments, and am grateful for the earlier work done by the noble Baroness, Lady Grey-Thompson.
I will start by commenting on the relationship between a disabled person and their carer. It is difficult for someone who is not disabled to understand the intimate nature of that care which has to be given, and the relationship which inevitably builds up, whether the carer is paid or unpaid. The language talks about a “lived experience”, which trots glibly off the tongue, but it is not easy. At best, it is a relationship of trust, where the carer supports and enables the person being cared for to live the life that the disabled person wants to live themselves. But there are some cases where the behaviours of the carer are not beneficial, but are controlling, coercive or physically abuse, yet they fall outside the domestic abuse definition. That is why it is so important that the definition of “personally connected” is recognised. It is such a neat solution, and as the noble Baroness, Lady Campbell, has pointed out, it is vital that the definition is similar to the definition in the Serious Crime Act. She is right: they are complementary and will provide consistency and coherence between the Bill and the 2015 Act.
The noble Lord, Lord Hunt, in his excellent speech just now, referred to the excellent work of Stay Safe East. One of the women helped by Stay Safe East said:
“They think just because I’ve got a learning disability, I don’t know it’s wrong to treat me like that. I just want to be safe and live my life.”
Mencap points out that people with learning disabilities can be abused by any type of personal carer, not just in establishments such as Winterbourne View. The problem with private care at home is that often it is not visible at all. That is why these amendments are so important. The Bill needs to understand that the relationship between disabled people and their personal carers is akin to the familial and relationship definitions used elsewhere in domestic abuse legislation.
I hope the Minister will take on board the views of the noble Baroness, Lady Campbell, and the large number of disabled Peers speaking to her amendments, and the wider community of disabled people who need this protection.
Lord Shinkwin (Con)
My Lords, it is a pleasure to follow the noble Baroness, Lady Brinton. As International Women’s Day draws to a close, I thank the noble Baroness, Lady Campbell of Surbiton, for introducing what is surely a practical, common sense set of amendments. She has identified a significant gap in protections for victims of domestic abuse. To her credit, through these amendments, she has also identified an expert and eminently sensible solution. I suggest that we are in her debt for her wisdom, her fortitude and her foresight.
I say that because this is as much about us here today in your Lordships’ House, and those noble Lords watching this debate and contributing to it virtually, as it is about anyone. One has only to consider the average age of noble Lords—well over 50% are aged 70 and above—to realise that we are in fact among those who most urgently need this reform. Lest we are inclined to tell ourselves that this is about “them”, “the other”, “over there”, those whom non-disabled people so often describe as “the disabled”, we should consider these simple facts. According to the World Health Organization, 15 million people have strokes each year worldwide. Of these, 5 million die and another 5 million are permanently disabled. According to the Stroke Association, here in the UK 100,000 people have strokes each year. Stroke strikes every five minutes. In other words, acquiring a severe, incapacitating disability can happen to any of us.
Lord Randall of Uxbridge (Con) [V]
My Lords, it is a privilege to take part in this debate on these amendments so well introduced by the noble Baroness, Lady Campbell of Surbiton, and subsequent speakers, particularly my noble friend Lord Shinkwin.
I feel in many respects vastly underqualified to speak on these amendments. Reading the Committee stage debates, I understood the idea of whether we wanted to extend “personally connected”—I had been putting down something about domestic servants in this regard. However, from listening to the speeches that we have all been privileged to hear, it is apparent that the relationship between a carer and the person for whom they are caring is extremely special and, in many instances, very intimate. It must come under the domestic category. In many cases, probably all cases, it will be happening inside the home, which is the definition of domestic.
The Government may well say that there is sufficient protection elsewhere in the law, but victims of domestic abuse find it difficult to escape, in every sense of the word, from their abusers. Surely for people with disabilities it is impossible to escape. They are often at the mercy of a carer if that carer is abusing. I will listen carefully to the rest of the speeches and of course to my noble friend the Minister, but I find it difficult to understand why these amendments cannot be accepted. I hope that if not now, then by Third Reading, something along the lines of these amendments can be put into the Bill.
Baroness Grey-Thompson (CB) [V]
My Lords, I am delighted to support the amendment in the name of my noble friend Lady Campbell of Surbiton, to which my name is also attached. I, too, thank Stay Safe for its support in getting the experiences of disabled women into public view. My noble friend and other noble Lords have described the need for the amendments in this group. However, I will reiterate a few points, because there has been much discussion about whether the Domestic Abuse Bill is the correct vehicle to protect disabled people who are victims of domestic abuse. It is a very simple yes.
To say that either the Care Act 2014 or the Criminal Justice and Courts Act 2015 adequately cover disabled people is fundamentally to misunderstand the relationship between a disabled person and their carer, as my noble friend Lady Campbell has movingly explained. It can be a complicated relationship, but that does not give any excuse or reason not to better understand it. I am pleased that there is far more understanding about coercive and controlling relationships, but we need to understand how these relationships affect everyone, including disabled people.
I see this in quite a simple way. Domestic abuse legislation is the correct vehicle because abuse takes place in a domestic setting and the relationship is very definitely intimate—just talk to any disabled person who receives care. Including this here will help with the wider understanding of the scale of the abuse against disabled people, but it is also important for the individuals who are experiencing it, if and when they seek support. I worry that, if disabled people are not included in this legislation, they will fall through the net of reporting and of subsequent support and it will push them into greater peril.
Some might believe that social care provision will protect disabled people through safeguarding procedures. Many disabled people who employ personal assistants or carers do not engage with social services or their safeguarding procedures. There are many reasons for this. Disabled people want independence and choice, but there can be a real fear that, if they go through this process, the assumption is that they will not be able to run their own care package and the direct payments and control may be taken back.
I was trying to think of another comparator. This is not a perfect one, but it could be understood more widely, perhaps, if one thinks of a single mother avoiding social service help because she fears that her children might be taken away or that she might lose personal control of her situation. There is a different debate to be held about the regulation of carers, but the unique situation and the specialised or individualised nature of the support that a disabled person requires mean that carers do not necessarily come into the role regulated, well trained and managed.
The view that disabled people should not be treated differently from non-disabled people is admirable and in most cases I would strongly support it, but we have to recognise that the lived daily experience of disabled people is not equal in our society and there are significant amounts of discrimination. We are a long way from equality. Equity would be ensuring that disabled people were not left behind by this legislation.
I am concerned that the views of disabled people have not been adequately sought in this legislation. I ask the Minister which groups of disabled women have been consulted during this process. Given the significant number of disabled people impacted by domestic abuse, it is imperative that the amendment be accepted.
I am very much looking forward to the new government strategy for disabled people, which I understand is due shortly. If the Government are serious about protecting and supporting disabled people, they should accept the amendment or produce their own version of it. I would be delighted to speak further with the Minister and the Bill team, but if my noble friend decides to test the opinion of the House at any stage, not only will she have significant support but I will metaphorically follow her through the Lobby.
Lord Cormack (Con) [V]
My Lords, I have rarely heard a series of more moving speeches, beginning with that of the noble Baroness, Lady Campbell of Surbiton; she always speaks with authority but today she exceeded herself. I was moved too by the noble Baroness, Lady Grey-Thompson, whom I have the privilege of following, and by my noble friend Lord Shinkwin, who spoke with a quiet, intense passion. I hope the Minister will be able to give encouragement.
I have often referred to this Bill, and I have done so again today, as a landmark Bill. If it is to be truly a landmark Bill, it has to be all-embracing. There can be no more sensitive relationship of a domestic nature than that between a disabled person, particularly if we are dealing with a severely disabled person, and those who care for her or him. I feel very strongly that the Bill should include what, in a sense, is the most domestic of all relationships. I have no personal experience but I have vicarious experience: my mother in her last years depended very much upon carers, and so did my wife’s mother in her last years. One sees how that relationship is fundamental to the comfort, indeed the very survival, of those being cared for.
It really is the most appalling abuse of all if a vulnerable disabled person is abused by their carer. We all know that it happens because we have seen instances of relatives having to install video cameras in care homes. We have seen some terrible examples of people in their own homes being abused and taken financial advantage of, and indeed every other sort of advantage, by those upon whom they depend for their very existence.
I very much hope it will not be necessary to divide the House on this issue because I hope the Minister will be able to tell us, if she cannot accept these amendments, that she will come back with her own at Third Reading. There are many honourable precedents for that in our legislation and our legislative process, and it would be sad if the House were divided on a subject on which I am sure we are all fundamentally united: that disabled persons deserve respect, care and consideration and to be protected from any who might transgress in looking after them.
Baroness Watkins of Tavistock (CB) [V]
My Lords, it is a pleasure to follow so many eminent speakers. I support these amendments, which have been carefully designed and described by my noble friends Lady Campbell of Surbiton and Lady Grey-Thompson, together with the noble Lord, Lord Shinkwin, and the noble Baroness, Lady Wilcox of Newport.
We have heard three moving and compelling speeches from experts with lived experience. I thank my noble friend Lady Campbell for the bundle of information she sent ahead of this debate, for her rigour in representing the interests of disabled people and for highlighting that their relationships with non-family caregivers are analogous to the other relationships that fall within the definition of “personally connected” for the purposes of Clause 2(1) of the Bill.
Legal advice has suggested that a failure to bring the relationship between disabled people and their carers within the scope of Clause 2(1) could result in unlawful discrimination against disabled people, contrary to Article 14 of the European Convention on Human Rights when read with Articles 3 and 8. Could the Minister address that point when summing up? I am certain that all Members of the House would wish any anticipated discrimination to be avoided in the drafting of the Bill.
Lord Curry of Kirkharle (CB) [V]
My Lords, it is a great pleasure to follow the noble Baroness, Lady Watkins. I declare an interest as vice-president of Livability.
I very much support the intent in this group of amendments tabled by the noble Baroness, Lady Campbell of Surbiton, who presented the case so ably at the beginning of this debate. As the parent of a child with a severe learning and physical disability, I know from personal experience the potential risks associated with those who are responsible for the care of disabled persons. In addition, having established a charity responsible for providing care for adults with learning disabilities in the north-east of England called At Home in the Community, I know how sensitive and tense the relationships can be between parents and a disabled son or daughter, between carers and the disabled person and between carers and parents. The frustrations of providing care for a disabled person whose behaviour can be immensely challenging and demanding can boil over, no matter how much they are loved. They can become the innocent third party in abusive relationships and suffer abuse themselves as a consequence.
Sadly, multiple reports over the years have shown that disabled people are much more likely to suffer abuse for longer periods of time. Many individuals are unable to communicate verbally, so identifying abuse can be difficult. Often unable to protect themselves, they can become very isolated and introverted. The vulnerability of their situation can lead to reliance and dependency on the very person being abusive. We had a case within a managed care home of abuse by a hitherto trusted member of staff who manipulated residents over a number of months before detection.
For many residents of care homes, the home they live in is their home. We had cases of individuals whose parents had both sadly died, so their carers and fellow residents were their family. Support in the care sector, whether in a family home or residential care home, relies on the dedication and integrity of mostly—one has to say sadly—low-paid care staff, most of whom are brilliant and support their vulnerable people marvellously. Sadly, however, some do abuse. Drawing attention to this and making provision for it in the Bill is an important step in mitigating it and preventing it from continuing. I hope that the Minister supports this amendment.
Baroness Altmann (Con)
My Lords, I pay tribute to the noble Baroness, Lady Campbell, and other noble Lords, including my noble friend Lord Shinkwin and the noble Baroness, Lady Grey-Thompson, who have spoken in favour of these amendments. They seek to ensure that domestic abuse, as defined in Clause 2(1), covers those people who are disabled—and often, perhaps, elderly—as well as all other groups.
Such citizens can be in a deeply intimate yet non-sexual relationship, due to their need for someone to care for them, perhaps in their home. They need someone to care for them just to survive, and so that they can live their life as independently as possible. If these people are abused by someone who helps them in their own home, why would they not be covered in exactly the same way as other groups, including spouses, friends, partners and their children, who currently meet the definition in the Bill?
In this country, there is sometimes a cultural disinclination to talk about or engage closely with the issue of people who need care or who live with disabilities. This may even explain why social care reform is constantly pushed into the proverbial long grass. Yes, this can be a complex subject, and not everybody wants to discuss it, but why would someone who is cared for by another, who may be paid or unpaid, not be entitled to the same protection as a spouse who is abused by their partner? If the Government wish to support people who live in their own home, especially as we have an ageing population, and to be in the community, which disabled or elderly people usually want, developing a strong system of protection for cases of abuse is essential. This landmark Bill is an ideal place to start.
The vast majority of carers are angels. They are heroes, who carry out their demanding and often draining role with compassion, dedication and sensitivity. However, as other noble Lords have explained, there are distressing examples of when they have abused highly vulnerable adults in their care.
I support the rights of disabled people, as I know the Minister does. I know that she cares passionately about this group of wonderful individuals in our society, but I find it difficult to understand why the Government are resisting the inclusion of disabled people within the protections of a Domestic Abuse Bill. Such situations should be placed squarely in the remit covered by this ground-breaking Bill. Is it not time to tackle all cultures of domestic abuse and offer widespread remedies to all citizens? Surely this group should be part of that.
Baroness Hollins (CB) [V]
My Lords, I know from my personal family and professional experience of people with learning disabilities that domestic violence can involve both paid and informal carers, including family members. I will not repeat the excellent points made by the noble Lord, Lord Curry. I am very pleased to support my noble friend Lady Campbell and to follow such powerful speeches.
The weakness in the Government’s position is that it underestimates the important similarities between carer relationships and those already in the Bill. It perhaps assumes that local authorities or the CQC will have sight of all carer arrangements, particularly for informal care, but this is just not true. I quote the January Stay Safe East report on discrimination, which says:
“The current definition of domestic abuse has a discriminatory impact on disabled victims of domestic abuse by non-family carers, who have no access to an Independent Domestic Violence Adviser, refuges or other domestic abuse services or to the network of therapeutic and other services open to other domestic abuse victims.”
The exclusion of carers from the definition of “personally connected” not only is blind to the reality of the closeness and complexity of carer relationships but would be discriminatory to disabled people on the receiving end of domestic abuse from carers, because they would be excluded from services. The exclusion fails to recognise that the significant relationships of disabled people may be different from those of non-disabled people. This also applies to people with learning disabilities.
My remaining point has already been made, so I will not take up time with it.
Baroness Finlay of Llandaff (CB) [V]
My Lords, it is a pleasure to follow all the speeches already given, because these important amendments close a loophole in our current framework. They do not criminalise carers; let us be clear about that. They simply recognise the reality that, when a person is living in their own home with others coming in to assist with activities of daily living, including the most intimate of care, that person is potentially vulnerable to exploitation. People also need help with indirect activities for daily living as, without this assistance, the person’s environment would rapidly deteriorate. Carers can be closer to and have more power over a person than a person’s family.
The Care Act 2014 Section 10(3) states:
“‘Carer’ means an adult who provides or intends to provide care for another adult (an ‘adult needing care’); but see subsections (9) and (10).”
Then subsection (9) states:
“An adult is not to be regarded as a carer if the adult provides or intends to provide care … (a) under or by virtue of a contract, or … (b) as voluntary work.”
The issue is that those employed, under direct payments or privately, or who exploit a vulnerable person with offers of help and support, are not known to the local authority and it has no authority over them. Even if the local authority becomes aware, Section 42 of the Care Act did not create any new powers to act to protect disabled people from abuse and neglect, merely a duty to make inquiries and to consider exercising existing powers.
This amendment recognises the power differential between the person who is vulnerable and the person coming into their home, on whom they depend and by whom they are being emotionally, psychologically or physically harmed. The person may be frightened and intimidated, not knowing who to turn to, and frightened by threats of all kinds. This is not just mild bullying or cajoling. This is serious, and there needs to be a way to ensure that those who have close and intimate access to the person cannot continue their exploits of mal-intent without serious consequences in law. There is no reason to discriminate against those who are disabled and cannot escape their situation, enduring abuse in their own homes, by leaving them without the adequate protection that this important landmark Bill aims to provide.
As I said, these amendments do not criminalise carers; they criminalise behaviours of mal-intent that cause serious harm—behaviours which are completely unjustified. They are behaviours of abuse behind closed doors in a person’s home by someone on whom they are dependent and personally connected and who has access to the most personal and often intimate aspects of their body and life. Without these amendments, we leave a loophole in protecting those with disability, as so clearly laid out by the noble Baroness, Lady Campbell, and others. I hope the Government will simply accept these amendments as they are, but otherwise I will support a Division.
Lord Paddick (LD) [V]
My Lords, these amendments seek to bring the relationship between a disabled person and their carer within the definition of “personally connected” for the purposes of the Bill, and we support them.
As the noble Baroness, Lady Campbell of Surbiton, explained so clearly, as someone who is supported by personal care assistants 24/7, carers often have a close personal connection to the person they are supporting. Although some might find it difficult to imagine that someone would take advantage of someone’s disability, the noble Baroness referred in Committee to the Crime Survey for England and Wales 2018-19, which found that people with long-term illnesses or disability were more likely to experience domestic abuse than those without.
The noble Baroness went on to describe that, in the absence of any close family or friends, carers are considered as welcome substitutes by disabled people who are isolated and feel lonely and anxious. While mostly this is a mutually kind and equitable relationship, on occasions the situation is exploited by the carer.
The noble Baroness, Lady Campbell of Surbiton, makes a compelling case. The relationship between some disabled people and their carers can in some ways be even more “personally connected” than that between family members, when one considers the level of personal care provided and the level of intimacy that this involves. She has demonstrated that disabled abuse is a very real issue. She has also explained that she has sought legal advice which confirms that there are legislative gaps that need to be filled. These amendments address those inadequacies and we strongly support them. If the noble Baroness divides the House, we will vote with her.
Baroness Wilcox of Newport (Lab) [V]
My Lords, I speak in support of this group of amendments. It is humbling to add my name and be among such a campaigning and dynamic group of Peers. The clause as amended would bring the relationship between a disabled person and their carer within the definition of “personally connected” in Section 76 of the Serious Crime Act 2015, in line with the amendments to the definition in Clause 2 in the name of the noble Baroness, Lady Campbell of Surbiton—who has so powerfully lobbied for this amendment—so that controlling or coercive behaviour by carers is covered by the Section 76 offence.
On the definition of “personally connected”, at Report we continue to believe that the Bill should reflect the realities of all domestic abuse victims who need to be able to access services, justice and support and that no victim should be left behind. These amendments would ensure that “personally connected” also covered a person’s relationship with their carer, whether paid or unpaid.
I spoke of this in Committee and, despite frank and helpful discussions with the Minister and her officials, I remain convinced that these are necessary amendments. They reflect the lived experiences of disabled victims of domestic abuse, where a significant personal relationship in their life is with a person who provides care.
This is a Bill for all victims, and we believe that these amendments would help to ensure that disabled victims are represented in the legislation. We have heard the Government say that the abuse of disabled people by their carers is already covered by existing legislation—Section 42 of the Care Act 2014 places such a duty on local authorities. However, the Bill is flagship legislation—we hear the term time and again—and it should not be the case that disabled victims have to be provided for elsewhere. The unamended clause does not recognise disabled victims of domestic abuse, who are among the most vulnerable.
This type of abuse often goes unnoticed. Disabled victims are more likely to experience domestic abuse for a longer period of time, and the Bill should make it easier for such victims to be recognised. There has to be an understanding and an acceptance of the reality of disabled lives. Significant relationships can be different from those of a non-disabled person with an unpaid carer. This close relationship has the ability to become a difficult relationship that is the same as family or partner violence. Trusting someone enough to let them provide either personal care or support with day-to-day tasks or communication is in itself an emotionally intimate act that creates a close bond but also runs the risk of abuse. It is not infrequent for abusers to target the disabled person and befriend them, and persuade them that this is done from an altruistic motivation, while at the same time exploiting and abusing the disabled person. Unfortunately, the news racks are full of such stories. The victim will experience the same ambiguity about power and control versus emotional attachment as any other victim of domestic abuse.
My noble friend Lord Hunt mentioned the organisation Stay Safe East in his authoritative speech. Ruth Bashall, chief executive of that organisation, said of this Bill:
“If this landmark piece of legislation is to protect disabled victims as well as non-disabled victims, we must ensure that abusers are not provided with a cause to claim ‘best interests’ as justification for abusing us … Every year, disabled people are victims of abuse by paid and unpaid carers or personal assistants with whom they have a close relationship but are not family members, and there is very little legislation to protect us.”
I welcome the important issues raised by noble Lords in this group of amendments. I urge the Government to listen to the lived testimony expressed throughout this debate. I support the amendments for inclusion in the Bill.
Baroness Williams of Trafford (Con)
My Lords, I thank the noble Baronesses, Lady Campbell of Surbiton and Lady Grey-Thompson, for introducing these amendments that seek to expand the definition of “personally connected” in Clause 2. I am very grateful to have had the opportunity to meet them ahead of Report to discuss their amendments.
To answer the question that a number of noble Lords have asked: 3,200 responses were received to the consultation on the Bill and 85% of those responses agreed to our definition in the Bill. We consulted a wide variety of focus groups, which included disability groups; I do not have the list today, but I can try to get it.
These amendments seek to bring all carers under the definition of “personally connected” in the Domestic Abuse Bill. This would include carers who are unpaid, such as neighbours and friends, as well as paid carers and people in a position of trust who care for disabled people.
Let me be absolutely clear: the Government fully recognise that abuse can be perpetrated by carers on the people they care for and that these victims can be especially vulnerable. However, extending the definition of “personally connected” in the context of domestic abuse would have detrimental effects on the overall understanding of domestic abuse and the complexities of the familial and intimate partner relationships that domestic abuse is understood to encompass, where the affectionate emotional bond between the victim and the perpetrator plays a very important role in the power dynamics. By extending the definition to include carers, we would be broadening the definition of “personally connected” to include a much wider range of connections within health and social care settings, which are covered by other legislation, and would confuse the meaning of domestic abuse.
Noble Lords who have spoken in this debate and other proponents of these amendments argue that the relationship between the carer and the person being cared for is an intimate relationship because of the often intimate nature of caring. However, it is important to recognise that different degrees of care are required by different individuals and that not all care relationships can be classed as intimate. Additionally, many care relationships are affected by different power dynamics due to the paid nature of the work that many regulated carers undertake. This would make it inappropriate to class these relationships as domestic abuse, where the emotional interdependency and sometimes financial dependence make it very difficult for a victim to leave a domestic abuse situation.
This would be detrimental to one of the Bill’s overarching aims, namely to raise awareness and understanding of the devastating impact of domestic abuse on victims and their families. This is a domestic abuse Bill and should not be confused with a Bill on abuse in general, or abuse that takes place in a domestic setting. The explanatory report to the Istanbul convention makes clear what is intended by domestic violence or abuse. In its commentary on the term “domestic violence” it says:
“Domestic violence includes mainly two types of violence: intimate-partner violence between current or former spouses or partners and inter-generational violence which typically occurs between parents and children.”
What is proposed by these amendments—however worthy their intent—would mark a fundamental shift away from the objectives of this Bill, necessarily diluting and stretching the focus of the domestic abuse commissioner. We would also have to reset and reassess much of the work we are doing to prepare for implementing the Bill and developing a new domestic abuse strategy. By fundamentally expanding the concept of domestic abuse as used in the Bill we risk a significant delay in its implementation, and I am sure that is not what the House would want.
The Government recognise abuse of disabled and elderly people by their carers. This type of abuse should be called out and tackled, and existing legislation covers it. The Health Survey for England 2019—Providing Care for Family and Friends, which has been mentioned, shows that most unpaid carers were caring for family members. As such, a wide portion of informal care is already covered by the Bill and by Section 76 of the Serious Crime Act 2015, where the abuse amounts to domestic abuse.
The Care Act 2014 placed adult safeguarding on a statutory footing for the first time. Under Section 42, local authorities have a duty to carry out safeguarding inquiries if they have reason to suspect that an adult in their area with care and support needs is at risk of abuse or neglect. Importantly, this is the case irrespective of whether that individual’s needs are being met by the local authority.
The care and statutory support guidance defines the different types and patterns of abuse and neglect and the different circumstances in which they might take place. The list provided is not exhaustive but is an illustrative guide to the sort of behaviour that could give rise to a safeguarding concern, such as physical abuse, including domestic violence, sexual abuse, psychological abuse, financial or material abuse, modern slavery and discriminatory abuse.
In the almost six years since the Care Act was introduced, we have seen a steady increase in the number of concerns raised, as well as the number of inquiries made under Section 42. This demonstrates that the legislation is having an impact. Data from 2019-20 covering concluded Section 42 inquiries where a risk was identified showed that, in nearly 90% of cases, the outcome was reported to have either removed or reduced the risk to the individual.
Additionally, the Government have made clear in the accompanying statutory guidance that, under the Care Act regarding the duty on local authorities, they must ensure that the services they commission are safe, effective and of high quality. All relevant professions are subject to employer checks and controls, and employers in the health and care sector must satisfy themselves regarding the skills and competence of their staff. Furthermore, the Care Quality Commission plays a key role, ensuring that care providers have effective systems to keep adults safe and ensure that they are free from abuse and neglect. They have a duty to act promptly whenever safeguarding issues are discovered during inspections, raising them with the provider and, if necessary, referring safeguarding issues to the local authority and the police. Lastly, safeguarding adults boards provide assurance that local safeguarding arrangements and partners, including police, councils and the NHS, are acting to help and protect adults who may be at risk of abuse or neglect.
Baroness Campbell of Surbiton (CB) [V]
My Lords, first, I thank the Minister for her reply, although I am deeply disappointed. I thank all noble Lords for their support and their powerful application of the issues I tried to address in my contribution, which explained the aims of this amendment. I have been on a long journey of learning and studying since Committee. I have talked to lawyers, disabled people and many Members across the House.
Support for disabled people in the UK has rightly evolved over the years from a “carer knows best” approach to supporting individuals to take control of their lives in the community. This means that some disabled people now feel more able to speak out about some of the horrendous abuses they have suffered at the hands of their carers within the domestic home. This was ably put by the noble Baroness, Lady Brinton, the noble Lord, Lord Shinkwin, and others. It is not comfortable to acknowledge, as the noble Baroness, Lady Altmann, acknowledges. It is not comfortable to think about the domestic abuse of disabled people within the intimate setting of the home—but it takes place. Acknowledge it we must, and we must develop a solid way to address it.
The Bill is perfectly placed to acknowledge this kind of domestic abuse. It is a landmark Bill that would not put disabled people in the ghetto of social care. I am glad the noble Lord, Lord Randall, now understands more about why I pressed for the inclusion of disabled people and carers in the Bill, and I am glad he has changed his mind somewhat. I had wished the same from the Government today, but the reply indicates to me that they simply do not understand the nature of domestic abuse experienced by disabled people, which fits classically within the definition of this Bill.
I do not want to rehearse my replies to the Government, because that would take up too much valuable time, but, in answer to the accusation that the amendment would dilute the focus of the Bill and the work of the commissioner, I will say that that argument is very spurious. It will not dilute this Bill; it will strengthen it, because it will include those who are, at this moment in time, being domestically abused because they rely on another human being for their care. We rely totally on carers, as we would on a mother, a father or a partner.
So I do feel I need to test the opinion of the House, because I do not agree with the excuses given tonight. The answers I have given throughout my amendment speech, and the other speeches this evening, show why it is perfectly adequate and practical to have this included in the Bill. It would not dilute the focus or understanding of the Bill: no, it would enrich them. So I would like to test the opinion of the House.
““carer” means an adult who provides care, whether paid or unpaid;” Member’s explanatory statement
See the explanatory statement for the amendment at page 2, line 29 in the name of Baroness Campbell of Surbiton.
““disabled person” means a person who has a disability within the meaning of section 6 of the Equality Act 2010 (disability);”Member’s explanatory statement
See the explanatory statement for the amendment in the name of Baroness Campbell of Surbiton at page 2, line 29.
The Deputy Speaker (Lord Haskel) (Lab)
We now come to the group beginning with Amendment 7. Anyone wishing to press this or any other amendment in this group to a Division must make that clear in debate.
Clause 3: Children as victims of domestic abuse
Amendment 7
Baroness Stroud
Baroness Stroud (Con)
My Lords, I rise to speak to Amendment 7 and the corresponding group in my name. I thank the noble Baronesses, Lady Armstrong and Lady Finlay, and the noble and learned Lord, Lord Mackay of Clashfern, for their support for these amendments.
I also thank my noble friend the Minister for her time since we last debated these amendments in Committee. As we spoke, I was encouraged by her deep commitment to ensure that the Bill provides protection for all children—whether they be in utero, newly born or on the cusp of adulthood. I am hopeful today to receive assurance that guidance will protect these children. I thank all noble Lords who offered their support and feedback on our initial amendments as we worked towards finding a nuanced pathway that would ensure that the Bill does in fact protect all children but does not open up a legal minefield.
Why are these amendments needed? We know that around 30% of domestic abuse begins during pregnancy, while 40% to 60% of women experiencing domestic abuse are abused during pregnancy. These are horrific statistics. Alongside this, we know that the first 1,001 days, from conception to age two, is a period of uniquely rapid development when babies are particularly susceptible to their environment, so here we see high vulnerability to abuse and violence coupled with essential days for child development colliding and creating a unique environment that needs protection.
Domestic abuse in pregnancy is associated with poor obstetric outcomes, including low birth weight and preterm birth. A mother’s emotional state can have a direct influence on foetal development by altering the environment in the womb, and ongoing stressors such as domestic abuse can disrupt babies neuro-development. This can affect children’s cognitive functioning and emotional regulation, shaping behavioural and emotional outcomes for years to come. We also know that the sad truth is that the single best predictor of children becoming either perpetrators or victims of domestic violence later in life is whether they grew up in a home where there was domestic violence. These amendments seek to break this cycle and allow for early intervention, which can have life-changing outcomes for victims.
So what needs to happen and what can these amendments do? The amendment to Clause 3 would ensure that professionals take in utero exposure into account when identifying children as victims of domestic abuse. The amendment to Clause 7 relates to the general functions of the commissioner and would ensure that identifying children affected by domestic abuse also includes babies in utero. The addition of a new clause after Clause 72 would require the Secretary of State to
“make provision for publicly-funded traumainformed and attachment-focussed therapeutic work to be made available to all expectant parents and parents of children aged under two years old where those children are victims of or otherwise affected by domestic abuse.”
The amendment to Clause 73 would require the Secretary of State to issue guidance on the effects of domestic abuse on babies who were in utero at the time of the abuse and on babies and young children under the age of two.
These amendments and what they represent are crucial. As the Bill stands, there is a requirement that the commissioner must “encourage good practice” in identifying people who carry out domestic abuse, victims of domestic abuse and children affected by domestic abuse. My amendment would mean that encouraging good practice in identifying children affected by domestic abuse must include the unborn child by reaching out to pregnant women to offer support relating to domestic abuse, and by being alert to the need to offer support and safeguarding to the child post birth if necessary.
The addition of a new clause focused on trauma-informed support is about access to support for parents. The Bill will be ineffective if there is no provision for people to get the help they want and need. This is a once-in-a-generation opportunity to deliver a step change in our response to domestic abuse. The reality is that the vast majority of victims—an estimated 70%—never set foot in a refuge and remain at home or in alternative housing. It is therefore essential that they have access to support that can actually change behaviour.
An evaluation of the For Baby’s Sake programme, which provides trauma-informed and attachment-focused therapeutic support for parents, led by King’s College London, found that support at this time can harness parents’ motivation and empower them to make changes for their babies and themselves. A SafeLives report highlights that 80% of victims have told us that they think that interventions for perpetrators are a good idea. A main conclusion from Breaking Down the Barriers, the findings of the National Commission on Domestic and Sexual Violence and Multiple Disadvantage, was the call from survivors for trauma-informed support to break traumatic cycles. It is essential that we make this provision.
As the Bill stands, there is a requirement that the Secretary of State issues guidance about the effects of domestic abuse on children. The amendment to Clause 73 would ensure that the unborn child is included in that guidance to make sure that they are visible.
The protections that would be created by these amendments are needed because we know that the first 1,001 days of a child’s life are an opportune time for intervention and the best time for breaking the cycle. Pregnancy and childbirth are major milestones in the lives of many mothers and fathers and a time when there is the most motivation to change.
Although this is not a gendered issue, the Institute of Psychiatry, Psychology and Neuroscience at King’s College London, in conjunction with For Baby’s Sake, found that intervening in the perinatal period may prevent early childhood trauma and its consequences. New fatherhood is a motivator for change in men who use violence in their relationships. Therefore, intervening in the perinatal period and including a focus on parenting may improve engagement in programmes to reduce violence.
There is much that is good in this Bill and much that we can be proud of that has already been done to increase the protections for many. However, we have an opportunity to go just that bit further and to be crystal clear that it is our intention to protect all children, including those aged under two and during pregnancy. It is essential that we get this right. I understand that legislation may not be required to achieve this goal and hope to receive assurances from my noble friend the Minister of what may be achieved through guidance. I beg to move.
Baroness Finlay of Llandaff (CB)
My Lords, I am grateful to the noble Baroness, Lady Stroud, for leading on this important aspect of domestic abuse, clearly laying out the high incidence of abuse when a woman is pregnant and the many harms associated with it. I declare that I chair the Commission on Alcohol Harm. Some 25% to 50% of domestic abuse offences are fuelled by alcohol. The Good Childhood Report in 2017 found that 39% of children living with a parent or carer with problematic alcohol use were also living in households where there had been domestic violence in the past five years. That is almost three times the comparable rate in the rest of the sample.
Foetal alcohol spectrum disorder—FASD—describes the permanent impact on the brains and bodies of individuals prenatally exposed to alcohol. This can result in physical, emotional, behavioural and neurological characteristics that are all related to prenatal—interuterine—exposure to alcohol. At least 7,000 babies are born every year in the UK with FASD, although recent research suggests that the true incidence may be sixfold to 17-fold higher. Misdiagnosis as attachment disorders or autism is frequent.
Alcohol is a teratogen which can cause any type of physical malformation and learning and behavioural challenges. These children often need support with motor skills, physical health, learning, memory, attention, emotional regulation and social skills as well as the management of any congenital abnormalities. More than 70% of children with FASD are known to care services, often raised by foster or adoptive parents or kinship carers. The true cost of abuse is paid by the child lifelong and by society, not by the abuser.
This condition is preventable only when there is no prenatal alcohol exposure. That is why, in 2016, the Chief Medical Officer recommended that no alcohol be consumed in pregnancy and when planning one. After birth, the abuse of alcohol is associated with parental neglect and ongoing abuse in the home. When I was a GP, I worked with Strathclyde on the medical screening of children at the time of admission to care. Many of these children had been damaged before their lives had started and were further damaged from day one.
We know that, during the pandemic, domestic abuse has increased and domestic alcohol consumption has increased. Are we sitting on another epidemic that is about to emerge—that of FASD in a generation who are soon to be born? We cannot protect from FASD those who have already been born, but we can lessen the chance of further damage and protect those who come after them. That is the aim of these amendments.
The Deputy Speaker (Lord Haskel) (Lab)
The noble Baroness, Lady Eaton, has withdrawn, so I call the noble Lord, Lord McColl.
Lord McColl of Dulwich (Con) [V]
My Lords, I will speak to Amendments 7, 8, 9, 78 and 90, which I support. Naming babies and the unborn in the Bill should lead parents to get the help that they need at a crucial time; otherwise they are in danger of remaining invisible when it comes to public policy. In the lockdown, as has been said, the hidden harms experienced by those under two years were sadly extensive. It should be stated that the definition of children does not recognise the unborn as victims. The amendment to Clause 3 is necessary to have in the Bill that a victim of domestic abuse includes a child who experiences the effects of the abuse, including in utero exposure, as there is good evidence for this latter harm, as the noble Baroness, Lady Stroud, mentioned. The amendment to Clause 7 is important to stipulate comprehensively the duties of the commissioner to avoid any doubt whatever. The new clause after Clause 72 is required to ensure provision for all expectant parents and parents of children under two years where those children are victims of domestic abuse.
Baroness Watkins of Tavistock (CB) [V]
My Lords, I thank the noble Baroness, Lady Stroud, for leading on these amendments, with the aim of highlighting the impact of domestic abuse on babies, including exposure in utero, and to meet the needs of babies and parents in the first 1,001 days before babies reach the age of two. We know that domestic abuse often starts or escalates during or soon after pregnancy and that it is correlated with other risk factors for babies and their families. Domestic abuse during pregnancy is associated with poor obstetric outcomes and is a strong risk factor for ante-natal and post-natal depression. We now know that a mother’s emotional state can have a direct influence on foetal development. I remember being shocked the first time that I saw the brain scans of such children, only visible to us as researchers in the last 20 years. The ongoing stress of domestic abuse can disrupt babies’ neurodevelopment, which in turn can adversely affect behaviours and emotional outcomes.
My noble friend Lady Finlay has outlined the issues relating to alcohol and domestic abuse so ably that I will not repeat her arguments, but I declare my support for her analysis. Early intervention is crucial for babies born into such circumstances, to support and work with families to break traumatic development cycles. The Institute of Health Visiting is strongly supportive of these amendments, to safeguard against, prevent and address the traumatic impact of domestic abuse on babies.
My noble friend Lord Bird often reminds us that investment of the public pound early in any abused child’s development is a far better investment than significant input in later life. These amendments are designed to address what has been described as the “baby blind spot”. I urge the Minister to seriously consider these amendments and support their incorporation into the Bill. They are designed to safeguard the early development of all babies and to provide therapeutic intervention to empower parents who have experienced abuse themselves to break the cycles of domestic abuse, surely something that we would all support.
Baroness Meyer (Con)
My Lords, I support Amendments 7, 8 and 9, tabled by my noble friend Lady Stroud. Why? Because unborn children and small babies are as much at risk of domestic abuse as any other child, yet they have been largely excluded from this Bill. There seems to be no specific reference to them.
A very recent research paper published by the First 1001 Days Movement highlighted the fact that there are “baby blind-spots” in policy, planning and funding, where protections for children often do not work for babies. As my noble friend Lady Stroud mentioned, 30% of domestic abuse cases begin during pregnancy. That is a big number, but it is hardly surprising.
The prospect of having a child radically changes the dynamic in a relationship. The partner is suddenly faced with new responsibilities, both financial and emotional. Maybe the pregnancy was never discussed and comes as a complete surprise. The partner may feel duped or resentful, trapped in a relationship he never intended.
As we have heard throughout these debates, domestic abuse can take many forms. But just imagine how it feels when, at your weakest and most vulnerable point—which is how most women feel when pregnant—you are confronted by a partner intent on abusing you. When I was pregnant with my sons, I remember worrying that somebody would bump into me on the tube or I would fall and somehow injure that little being growing inside of me. I used to walk with my arms in front of me, shielding my stomach and my unborn child; it is a mother’s natural instinct. Imagine how frightened and helpless a mother must feel if her partner is a constant threat, not only to her but to her baby.
I remember my mother telling me when I was pregnant that I should only read happy stories, watch cheerful movies and listen to soft music. She strongly believed that the child absorbed everything its mother experienced and that this would affect the child’s development. Today it is an established fact that a baby’s development is as much affected by the mother’s emotional state as by what she eats and drinks, as we heard earlier.
As the First 1001 Days Movement attests, these are decisive moments in the life of a baby. Emotional abuse of the mother can damage the mental or physical health of the child, while physical or sexual abuse can lead to miscarriage. These soon-to-be-born human beings cannot be consigned to the category of “out of sight, out of mind”. If this is to be a piece of landmark legislation, our duty is that much greater to ensure that it recognises babies, the very young and the unborn. That is why I support the amendment.
Lord Russell of Liverpool (CB)
My Lords, I support all the amendments in this group. I declare my interests as an officer of the All-Party Parliamentary Group for Conception to Age Two, and, like the noble Baroness, Lady Stroud, I have the privilege of being a member of Andrea Leadsom’s taskforce. We will be producing our findings imminently. I did not speak in Committee because, frankly, I thought I would leave it to people who know rather more about it than myself, including many contributors who have given birth. While I am capable of many things, that is one thing I am not capable of.
I studied the Minister’s answer in Committee very carefully and was not hugely impressed, so I was intending to stand up this afternoon and be slightly critical. However, I have had a quiet word beforehand with the noble Baroness, Lady Stroud, and in the Chamber one has a great advantage: I was able to see the body language of the Minister when the noble Baroness, Lady Stroud, was making some comments, and it was extremely positive. I do not think those of us in the virtual world can see that—one of the benefits and privileges of being in the Chamber. Having studied the answer very carefully, I thought that what came out of it was something that concerns me and is worth flagging up.
The Minister tried to reassure us that all children will benefit from the Bill and that new guidance, which may be issued by the Secretary of State—it does not have to be—will cover all children, including those in utero. She then talked about the existing guidance which has been in place for some time. The Working Together to Safeguard Children initiative makes it clear that local authorities must have protocols in place to assess the needs of children in utero. She also specifically mentioned Section 47 inquiries under the Children Act 2004, which allow for a child protection conference if there are concerns for an unborn child.
Baroness Newlove (Con) [V]
My Lords, I speak to the amendments in the name of my noble friend Lady Stroud, because I fully support the essence of what she is trying to do.
This is supposed to be a landmark Bill and hopefully by the end of all the proceedings we will have one. But there are still some gaps within it, which a lot of noble Lords have already spoken about; I do not want to duplicate what they have said in the interest of time.
Many people I have seen, including domestic abuse survivors and their families, have talked about pregnancy and what happens when they are in a domestic abuse environment. It seems shameful, in a sense, to be talking about the unborn child in a way that has to justify a life that is going to be born, which we all wish was going to be in a healthy, happy environment.
For any relationship, having children is a very pressurised situation—it is the unknown. To be in a relationship and to be pregnant where there is more and more domestic abuse must be even more horrendous for a mother, taking each blow and each verbal insult. The unborn baby does hear what is going on in its surroundings. As my noble friend Lady Meyer has already mentioned, playing music to an unborn baby has an impact when the baby is born, so we have to understand what that child is listening to before it is born.
I am very grateful for the For Baby’s Sake briefing, The First 1001 Days, to which a number of noble Lords have referred. I hope that the Minister will reflect again. The noble Baroness, Lady Stroud, suggested looking at the guidance. As a former Victims’ Commissioner, I struggle with guidance, because it impacts on the delivery of a good service to protect the unborn child and its future life.
Exposure to domestic abuse in the first 1,001 days of life is associated with adverse outcomes, including poor mental and physical health, lower academic achievement and impaired social development. Although we know that this is a significant risk to the safeguarding of a child, we seem to wait and address the root cause only when they go into criminality. If these amendments are agreed or if we can have functional guidance, that young person will have a better, more protective and healthier environment, and at a lower cost to the state.
Domestic abuse can affect a parent’s ability to provide consistent, sensitive caregiving. It is particularly relevant for parents who themselves did not receive this level of caregiving. In fact, I am concerned that we are not seeing enough health visitors visiting families who so desperately need help and support once the baby is born. What is happening before that baby is born?
I will pose a scenario that was in one of the reports. There is a baby blind spot in what we are trying to do for the unborn child and, previously, to help the parents. Being a baby or a toddler was a lockdown risk factor in its own terms. Those who were exposed to other risk factors in addition could be considered as being subject to double jeopardy.
I am not sure there has been any thinking about the baby’s needs. As the report highlighted, we hear a lot about school age children—thankfully, today marks the first day of them going back to some kind of pattern—and parents working from home. But it is so sad that little has been said about babies’ needs. That is a quote from a practitioner. Families will be going out today, hoping to function and to create a safe environment.
So will the Minister please reflect and look at this to ensure that we have rigorous guidance, that we close the gaps and that we listen to the Children’s Commissioner and the domestic abuse commissioner? Let us make this a landmark Bill to protect both adults and the unborn child, so that we can create a healthy environment in which they can go on to lead healthier lives.
The Deputy Speaker (Lord Haskel) (Lab)
The noble Lord, Lord Cormack, has withdrawn, so I call the noble Baroness, Lady Hollins.
Baroness Hollins (CB) [V]
My Lords, the noble Baroness, Lady Stroud, has summarised some of the extensive research which associates abuse—including emotional abuse—of mothers during pregnancy with resulting poor outcomes for the child. What happens to children in utero may affect them for the rest of their lives and cause longer-term developmental delays and both mental and physical health problems, and may even lead to criminality.
My noble friend Lady Finlay has also pointed, quite rightly, to the role of alcohol. As the noble Lord, Lord McColl, suggested, opposition to Amendments 7, 8, 9 and 90 may be because the unborn child is not afforded the same rights as a newborn child. Indeed, an unborn child is bestowed with few rights, so it does not seem to make sense to include them in this Bill. Or, if the mother is the victim of domestic abuse, she will be in scope of the provisions of the Bill in any case, therefore the amendments would have little effect because the child affected by domestic abuse during pregnancy is not perceived as a victim.
It is important that we recognise the effects of domestic abuse on children, in order that we can intervene at a young age and act to mitigate some of the harms that will flow from domestic abuse. The Government’s amendments recognising this are welcome. However, in the same spirit and in the spirit of consistency, the scope of this Bill should include children in utero, because the rationale is much the same as for other children and it would be a significant blind spot to exclude them.
I turn now to Amendment 78 and the duty to provide therapy for new parents. I consulted my daughter, who is a psychiatrist specialising in parent/infant mental health. We know a great deal about the importance of early caregiver relationships on a child’s developmental trajectory, attachments and physical health. This amendment is about targeted early intervention and the mitigation of domestic abuse-associated future harms. All children need sensitive and responsive parents who are emotionally available and can help them feel safe and understood.
The priority for treatment is to treat, reduce and prevent parental conflict with accessible therapeutic interventions and practical support for families. Therapies and couple interventions to consider include video interaction guidance, child/parent psychotherapy, Hold Me Tight and OnePlusOne and, in complex situations, the NSPCC’s UK programmes, LIFT and GIFT. Family-based therapy with children should always be considered, when possible, although it is no replacement for other kinds of general parenting support. The noble Baroness, Lady Newlove, mentioned the importance of health visiting. This seems to be much less available today than it was when I had my children many years ago.
I strongly support all the amendments in this group and hope that they will bring new opportunities to really respect the Conception to Age 2 manifesto and work, and all the other initiatives concerned with the health and well-being of babies in utero and infants.
Lord Mackay of Clashfern (Con) [V]
My Lords, I strongly support Amendments 7, 8, 9, 78 and 90. We have heard the very informed opinions of my brethren, including the ladies, about the dangers that exist at the beginning of life, including the time that a child is in utero, from the effects of domestic abuse surrounding them.
It is very important to remember that the idea of putting something in guidance depends on whether it is already included in the statute. Guidance cannot extend the scope of the statute and I think that these amendments are really concerned with the legal necessity of having these beginning-of-life children in the statute. Therefore, I support them very strongly because I think it is generally assumed that they need to be looked after and that looking after them involves a degree of involvement that is essential for success.
Baroness Armstrong of Hill Top (Lab) [V]
My Lords, I am going to be very disciplined in this Bill—some people may say that that is a bit unusual for me—and speak only to those things that are not part of the criminal justice system. I am concerned that overall the Bill has been dominated by the criminal justice system, and most of the women I have worked with for many years want problems to be sorted before it is necessary to go to court, because things really have failed once it gets that far. That is why I was really pleased to support the noble Baroness, Lady Stroud, in these amendments, because they are about early intervention and, in terms of domestic abuse, about how we prevent it and how we break that cycle.
Baroness Burt of Solihull (LD)
My Lords, unlike the noble Baroness, Lady Stroud, and other noble Lords who have spoken so knowledgeably, as probably became apparent in Committee, children and babies are not my area of expertise, apart from being a mother and a grandmother myself—so that is one small qualification greater than the noble Lord, Lord Russell. In Committee, I learned a lot of shocking facts about the damage that babies can suffer even before birth as a result of domestic abuse. I was shocked to learn that nearly a quarter of domestic abuse begins during pregnancy, and the noble Baroness, Lady Finlay, spoke about the role of foetal alcohol disorder: another issue that can just make the situation even more terrible.
Pregnancy can bring a great strain into a relationship for many reasons—financial strain for one and impending change for another. The noble Baroness, Lady Meyer, gave several examples of such strains. Much attention is, deservedly, given to the mother during and after pregnancy, but, until recently, the father had been regarded as more peripheral, less involved, a bit of a spare part. This has changed in recent years, I know, but there is still plenty of opportunity for resentment to develop.
However, as the noble Baroness, Lady Stroud, said, new fatherhood can be a great motivator for change. That is why this time would be an ideal opportunity to lavish some attention on the father and big up his role and importance. It is an ideal time for perpetrator strategies to be put in place. Can the Minister update the House on how this opportunity to implement perpetrator strategies could be exploited within the existing remit of the health service?
I am not sure we need to change the law for that—and for the other good practice mentioned in this suite of amendments—to happen, although the noble Lord, Lord McColl, believes that a baby in utero does not qualify as a victim. Can the Minister confirm exactly what the Government’s view is?
Amendment 78 requires the Secretary of State to supply the funding for trauma-informed and attachment-focused therapeutic work for the parents of all little victims. The noble Baroness, Lady Watkins, emphasised the importance of early intervention.
Amendments 8 and 9 seek to ensure that babies in utero will be covered in the Bill’s provisions. The amendments’ supporters made a strong case for that in Committee, citing harrowing examples of the potentially lifelong damage which can be done before a child is even born. I would welcome the Minister’s assurances that these victims—in utero as well as post birth—will be covered by the Bill’s provisions. Several noble Lords, including the noble Baroness, Lady Newlove, talked about the baby blind spot. We must consider the baby’s needs, and I hope that the baby blind spot does not apply to this Government.
Lord Rosser (Lab) [V]
My Lords, when, initiated by the noble Baroness, Lady Stroud, and my noble friend Lady Armstrong of Hill Top, these issues were debated in Committee, the Government argued that the need for statutory agencies to recognise and respond to the impact of domestic abuse on children of all ages is already embedded in the Bill and the associated statutory guidance. The Government said that they recognised that pregnancy can be a trigger for domestic abuse and that existing abuse may get worse during pregnancy or after giving birth.
The Government went on to say in Committee that the statutory guidance made clear that local authorities, with their partners, had a responsibility to develop clear local protocols for assessment, and that these protocols should reflect where assessments require particular care and include unborn children where there are concerns. Further, the Government said that if there are concerns relating to an unborn child, consideration should be given to whether to hold a child protection conference prior to that child’s birth, with decisions regarding the child’s future safety, health and development made at that conference.
The Government concluded their response in Committee by saying they were committed to protecting all children, including the very youngest, from the heinous crime of domestic abuse. There have since been further discussions. We agree that pregnant women, unborn children and young children need access to support and protection. I look forward to the Government, in their response, giving further meaningful assurances that this will be the case.
Baroness Williams of Trafford (Con)
My Lords, I thank my noble friend Lady Stroud for affording us the further opportunity to debate the impact of domestic abuse on very young children and unborn babies. The noble Baroness, Lady Finlay, made an important point about alcohol as a trigger for domestic abuse and the effect of alcohol on an unborn child, which is part and parcel of this. The noble Baroness, Lady Armstrong of Hill Top, made a point about preventive measures being so important in our aim of protecting victims or potential victims of domestic abuse.
Amendment 7 to Clause 3 seeks to recognise unborn babies exposed to domestic abuse in utero as victims of domestic abuse. Amendments 8 and 9 to Clause 7 seek to explicitly provide for the domestic abuse commissioner to encourage good practice and provide protection and support to children under the age of two, including unborn babies, affected by domestic abuse. Amendment 78 seeks to make provision for publicly funded therapeutic services for expectant parents and parents of children under the age of two who are victims of domestic abuse. Finally, Amendment 90 seeks to make explicit reference to unborn babies and children under two in the statutory guidance to be issued under Clause 73.
Under Clause 3, children of all ages, from birth to the day that they turn 18, are considered victims of domestic abuse in their own right if they see, hear or experience the effects of domestic abuse and are related either to the targeted victim of the abuse or to the perpetrator. As such, all children will benefit from the provisions in the Bill. For example, Part 2 expressly recognises the impact of domestic abuse on children in the statutory functions of the domestic abuse commissioner. Part 4 of the Bill places a new duty on tier 1 local authorities to provide support to victims of domestic abuse and their children within safe accommodation. This would include the kind of support referred to in Amendment 78. In addition, Clause 73(2) provides that the Secretary of State must issue guidance on the
“kinds of behaviour that amount to domestic abuse”
and on the effect of domestic abuse on all children.
Separate to the provisions in the Bill, there are important existing measures in the Children Act 1989 to protect children at risk of harm. These include Section 8 of that Act, which makes provisions for child arrangement orders regulating arrangements relating to when a child is to live, spend time with or otherwise have contact with any other person, and whom. Section 17 sets out the provision of services for children in need, their families and others. Part V sets out measures for the protection of children, including in Section 43 on child assessment orders; Section 44 on orders for the emergency protection of children; and Section 47, which sets out the local authority’s duty to investigate when it suspects that a child is suffering or likely to suffer significant harm.
Baroness Stroud (Con)
My Lords, I thank all noble Lords who have contributed to the debate on this amendment, but especially the noble Baronesses, Lady Armstrong and Lady Finlay, and the noble and learned Lord, Lord Mackay of Clashfern, for their contributions. Their contributions were moving, constructive and hugely valuable. For me too, hearing the cross-party nature of the support for the very youngest right the way through to the age of two was a special moment in this House. I thank noble Lords for their contributions.
I also thank my noble friend the Minister for the way she has listened and sought to ensure that all children, including babies in utero, are recognised as potential victims of domestic abuse. The assurance that all babies in utero are to be recognised in guidance is very precious. I thank her and her officials for responding so fulsomely. I am so grateful to her for her work in ensuring that the draft guidance will recognise that pregnancy is a specific risk factor that can make victims more vulnerable. This is hugely important because pregnancy, as we have heard during this debate, can be a trigger for domestic abuse. Existing abuse can get worse as well during pregnancy.
I am delighted too that guidance recognises that domestic abuse experienced during pregnancy and in the earliest years is harmful to birth outcomes and babies’ early development, and that trauma-informed support will be available for these families. This is crucial because a mother’s emotional state can have a direct influence, as my noble friend the Minister said, on foetal development and on-going stresses, such as domestic abuse, can disrupt babies’ neural development.
Finally, I am delighted that guidance will recognise that while pregnancy may increase risk of abuse, the interaction with health professionals provides an opportunity for women to seek support, as well as for professionals to reach out to women who may be experiencing domestic abuse. This is a moment for us not to miss. These women are already in the system and standing in front of a professional. We can harness this moment of opportunity to ensure protection for these very vulnerable babies.
I am mindful of the words of warning of the noble Lord, Lord Russell, and the need to remain vigilant on the effectiveness of guidance. I am sure that Ministers who have spoken in this debate will join us in remaining vigilant so that these protections become a reality. There is clearly strong cross-party support to recognise babies and the unborn as potential victims of domestic abuse, and to seize the moment to intervene. at a crucial juncture for parents. I thank the Government for the steps they have taken and given assurances that they will take.
I finally thank the more than 70 experts, doctors and charities of early childhood and domestic abuse who put their names behind this amendment. An extraordinary number of organisations and professionals have backed this, including Amanda McIntyre of For Baby’s Sake, Alison Morton of the Institute of Health Visiting, and Sally Hogg from the First 1001 Days movement. Their work on the frontline is what makes all the difference. I beg leave to withdraw my amendment.
Lord Parkinson of Whitley Bay (Con)
My Lords, we still have another nine groups of amendments to cover if we are to hit today’s target for the first day of Report. Given that we will need to sit late in order to try and do that, I suggest that now might be an appropriate time for a short break.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
My Lords, we now come to the group beginning with Amendment 10. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Clause 8: Reports
Amendment 10
“(7) Within one year of the passing of this Act, the Commissioner must publish a report under this section, which—(a) investigates the impact of Universal Credit single household payments on victims of domestic abuse; and(b) investigates and presents alternative options for the payment of Universal Credit single household payments that protect victims of domestic abuse.”Member’s explanatory statement
This amendment would place a legal duty on the Domestic Abuse Commissioner to investigate the payment of Universal Credit separately to members of a couple and to lay a report to Parliament.
Baroness Lister of Burtersett (Lab) [V]
My Lords, Amendment 10 heads up a group of amendments on social security which I will introduce, focusing on those in my name.
When I originally tabled them in Committee, I wanted to draw attention to the myriad ways in which the social security system undermines this Bill, particularly its very welcome inclusion of economic abuse. I and other noble Lords gave examples of how the social security system is letting down victims and survivors at every stage of the domestic abuse journey. I had hoped in response for some recognition from the Government of the tensions that exist between social security and domestic abuse policy, but no, so in light of this and the disappointment voiced by Refuge and Women’s Aid, to whom I pay tribute for their work and thank for their help, I decided that there was a case for revisiting these issues on Report. I am grateful to noble Lords who have signed the amendment.
I will not repeat the general case for why it is so important that social security policy supports rather than undermines domestic abuse policy, which underpins Amendment 68. This would require an impact assessment of any future social security reforms on domestic abuse victims and has been welcomed by the domestic abuse commissioner designate. In response to the amendment in Committee, the Minister pointed out that:
“The DWP is already obliged to consider the impacts of its policies through equality assessments, in accordance with the public sector equality duty.” —[Official Report, 27/1/21; col. 1703]
However, as this was the response given in the Commons, I had already explained that DWP equality impact assessments are very limited from a gender perspective and do nothing to assess, for instance, the impact on who in a couple controls resources, on the financial security and autonomy each enjoys, or on the ability to escape an abusive relationship. If the Government are serious about treating domestic abuse as a
“whole of government issue and response”, —[Official Report, 27/1/21; col. 1700]
as the Minister claimed, then it surely makes sense to carry out such an impact assessment at the design stage of social security reform.
Two other issues that I raised in this context were the training of jobcentre staff and the treatment of panic rooms in sanctuary schemes. On training, I very much appreciate the Minister’s helpful letter. I have shared it with Women’s Aid, which was involved in the early stages of the training and is very positive about aspects of it. However, there remain unresolved concerns and I would be grateful if the Minister could ask that the appropriate DWP Minister meet with Women’s Aid to discuss them.
Lord Best (CB) [V]
My Lords, I will speak to Amendment 72 and the consequential Amendment 102 in my name and those of the right reverend Prelate the Bishop of Manchester, and the noble Baroness, Lady Lister. I speak for the three of us and I also thank the Chartered Institute of Housing for expert technical advice.
Amendment 72 calls for a period of grace from the imposition of the cap on the benefits of those escaping domestic abuse. In Committee, we noted that the benefit cap is a particular problem for those desperate to leave their current accommodation, both those victims of abuse who move out into a rented home and those who flee first to a refuge or temporary accommodation but need to move on into rented housing. The cap on benefits means that someone suffering from abuse may simply be unable to leave their abuser because this would mean that their income, after paying the rent, would not be enough to live on. The cap is likely to cut the benefit that they would otherwise receive by over £50 per week outside London and well over £100 per week in London. The benefit cap, therefore, traps them where they are.
There are other, special, unfairnesses caused by the benefit cap in domestic abuse cases. If an abused woman had been working and was forced to move out and start claiming benefits, she would be allowed a period of grace from the benefit cap, but not so if she was not in work. Yet as the debates on this Bill have illustrated, not working may have been the result of coercive control where the abuser has prevented the survivor from working. Even more unfairly, the imposition of the cap because the survivor has a third child may mean penalising someone for being the victim of non-consensual conception—the so-called rape clause.
Our solution is the simple one of exempting from the benefit cap for a year all those forced to claim benefits because of domestic abuse to give them the breathing space to shop around for more affordable accommodation or, where appropriate, to get a job. We are very grateful to the noble Baroness, Lady Stedman- Scott, the appropriate Lords Minister, who met with the three of us, introduced us to Mims Davies, the DWP Minister, and subsequently ensured that we received a full explanation of her department’s position.
It appeared to us that there is not an objection in principle to supporting victims of domestic abuse who could be greatly disadvantaged by the benefit cap, nor that there were difficulties in defining and identifying those who would be covered by the period of grace. However, because of administrative difficulties, the department’s preferred approach is for those facing this hazard to apply to the local authority for help in the form of a discretionary housing payment to assist with their rent.
I am bound to say that this alternative to allowing a straightforward, automatic period of grace is not very helpful. It represents a somewhat cumbersome and certainly insecure basis for overcoming the problem. Will the local authority be able to offer a discretionary housing payment to the abuse victim in these circumstances? DHPs must fund so many other cases—for example, relieving the hardship created for thousands by that notorious bedroom tax. The £180 million per annum set aside for DHPs is spread across all local councils. Moreover, DHPs are very often awarded for only a short period, such as three months. A woman who is desperate to get out of an abusive relationship but is trapped by knowing her capped benefits will not cover the basic necessities for life for herself and her children cannot risk moving out.
Lord Rooker (Lab) [V]
My Lords, I was going to pass a short comment on each of the amendments because I agree with them all, but I will confine myself to Amendment 10.
I hope the Minister has taken on board the central point that my noble friend Lady Lister made: the social security system is undermining the processes and procedures in the Bill. We do not have joined-up government. It is terrible, really, because I have come across this several times. In 2001 I moved, after two years at the DSS, to the Home Office. It did not take me long, bearing in mind my responsibilities at the Home Office, to work out that we were not really joined-up at all. That was 20 years ago, and the situation does not seem to have improved at all. It is the problem of working in silos and allowing the DSS—or the DWP, as it is now—to use the administrative route out that is causing a problem, and there is no doubt that there is a solution.
The fact is that research from Refuge has shown that—I have to say I am astonished at this figure— 1.6 million adults have seen their experience of economic abuse start during the pandemic. We need some serious amendments to the universal benefits system; that is the priority.
The single payments are clearly open to abuse by perpetrators. As my noble friend said, it would not take long for a person to work out why their money had gone down: they would know that their partner’s had gone up and they would start to ask about the reasons. I understand that, some two years ago, the DWP said that it would encourage joint claimants to nominate a bank account for the main carer of the children in the house. But, while I am nowhere near an expert, I have seen no evidence that that advice has been followed, let alone effective. I simply do not believe that separate payments are impractical. It is all very well to claim that many couples manage their finances jointly, but that is not the case. We all know that it is not the case for millions of women who are experiencing economic abuse.
Amendment 10 is very reasonable, although I note that the Local Government Association wants a parliamentary inquiry. I do not think that that is the route here. On balance, I would favour the route set out in the amendment through the commissioner, with resources; it is more precise and it has a time limit, and it would not be side-tracked by other pressures on elected Members in the Select Committees. There is an argument there, but I do not accept the LGA view. This route would be a much better one.
As I said, I agree with the other amendments and do not propose to say again what I said in Committee. While it is not for me, and probably not for my noble friend, to say, frankly, there should be a vote on one or more of these amendments on Report to buttress the pressure and the force that the Minister could take back to the department—or even better, take back to the Government—to seek a joined-up solution. If it is just a question of the House having a little debate but there is no pressure, I fear that very little will happen.
Baroness Butler-Sloss (CB) [V]
My Lords, I agree with these amendments and in particular with what the noble Lord, Lord Rooker, has just said. However, I want to concentrate on Amendment 68, and I declare an interest as the chairman of the National Commission on Forced Marriage. I am not asking for comments on forced marriage to be put into the Bill on Report, but I want to see it in the statutory guidance. When looking at Amendment 68, I think it is very important that an assessment should be made of the impact of social security reforms by the relevant government department. There is a group of young people whose needs must be assessed in the social security reforms: those who are being forced into marriage—they are usually coerced. They include, in particular—this is what I am concerned about—those who are aged under 18. I hope that they can be taken into account when the impact of these policies is taken into account.
Baroness Sanderson of Welton (Con)
My Lords, I would like to speak to Amendment 10, and I am afraid I am going to make the argument that the noble Baroness, Lady Lister, did not want to hear again today. I will speak to Amendment 17 later in the debate, but, in the main, I do not think that the exception should prove the rule. I am not sure that it is right to demand a report on such a specific issue on the face of the Bill, nor do I think it is right to demand that it is done within a year of the passing of this legislation. While the commissioner-designate has said that she is happy to do the work, she has indicated that she would need additional resources and support to do so.
I am not making any comments on the value or otherwise of the work itself, but I believe that it is for the commissioner’s office to decide priorities within the budget allocated to her, rather than it being the role of legislation. She is the “independent” domestic abuse commissioner and it is not for us to dictate in such fine detail what she should and should not be doing.
Baroness Uddin (Non-Afl) [V]
My Lords, I begin by acknowledging my noble friend Lady Lister and her heroic persistence in seeking welfare reform. The staggering statistics which have just been shared by the noble Lord, Lord Rooker, are shocking. In that light, I would argue that economic abuse is an integral part of coercive control that has been experienced by survivors. The Government’s recognition and inclusion of economic abuse in the new statutory definition of domestic violence is therefore welcome.
As has been said by all noble Lords, we know that financial control is a barrier to escaping violence and abuse, and therefore immediate access to financial assistance through welfare benefits is a lynchpin for women survivors if they choose or are forced to flee their homes. I am particularly concerned about women without secure immigration status, including those whose marriages have not been registered, and, of course, migrant women who find it impossible to access refuge accommodation and other welfare support, making it impossible for them to escape abuse.
Refuge and Women’s Aid, among other leading organisations, are seriously concerned about and are seeking changes to welfare benefits as regards all survivors of domestic violence, without which women will not be in a position to leave their abusive perpetrators. The single payment of universal credit, the five-week wait for payment, the two-child tax credit limit and the benefit cap all disproportionately impact single women and children. We are all too aware that the law detrimentally impacts them and other welfare support hinders women’s choices and decisions.
I therefore ask the Minister—I am sure these points have been made, but I want to reinforce them—if the Government will heed the call of women’s organisations and place a duty on the Government to assess all welfare reforms for their impact on women’s ability to escape abuse. Will the Government deliver separate payments of universal credit and ensure that they are safe for survivors of domestic abuse? Will they end the benefit cap for victims and survivors of violence and abuse which deters survivors from finding safe and secure homes as well as preventing some from being able to move on from secure refuge space?
I am very thankful to have been able to speak to these amendments, specifically highlighting Amendment 10. All noble Lords have spoken with a great deal of expertise, of which I profess I have none, so I am very grateful. I just wanted to stand in support of these amendments.
Baroness Meacher (CB) [V]
My Lords, I strongly support Amendments 10, 68 and 69, to which I have added my name. I also support the other amendments in this group, although I will not speak to them. The noble Baroness, Lady Lister, has, as always, introduced her amendments with great thoroughness and therefore I will try not to take too much of your Lordships’ time, although I do want to speak a little more on Amendment 10 than on the other two.
The proposed new subsection (7)(a) in Amendment 10 makes very good sense, requiring as it does that the commissioner within a year publishes a report on the impact of these universal credit single payments on victims of domestic abuse. Whether or not the amendment is accepted, I certainly hope that the commissioner will seek the resources from the Government to enable her to implement this recommendation.
Paragraph (b) is absolutely vital because, as organisations such as Refuge know perfectly well, action is urgently needed to resolve the problem for domestic abuse victims of the default position that universal credit is paid into a single bank account on behalf of a household. I applaud the announcement from the Department for Work and Pensions that it will “encourage” joint claimants to nominate the bank account of the main carer of any children in the household, but that simply does not go far enough at all. Too often, the abusing partner will make sure that the money goes into their account. The main carer of the children is then exposed to the perpetrator using money in a coercive and controlling way, adding economic abuse to any other forms used.
As the noble Baroness, Lady Lister, said, a victim can ask for payments to be split between the two partners, but that is a dangerous thing to do when your partner is abusing you and is perhaps dangerous to be with. The ideal is the policy adopted in Scotland, where separate payments are the default. However, I remember the UK Government arguing strongly against such a policy when the universal credit legislation was being debated in this House all that time ago. To introduce it as the default option now would be a sharp change of direction but, in the domestic abuse context, I hope that the Minister is sympathetic.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, I was very pleased to be able to attach my name to Amendments 10, 68 and 69 in the name of the noble Baroness, Lady Lister of Burtersett, also signed by the noble Baronesses, Lady Meacher and Lady Burt of Solihull. I join the noble Baroness, Lady Uddin, in paying tribute to the noble Baroness, Lady Lister, for her tireless work in these areas. I also express the Green group’s support for the cross-party backed Amendments 72 and 102—linked amendments which I would have signed had I recognised that there was a space.
I begin with Amendment 68, which gives the Government a duty to assess the impact of social security forms on victims or potential victims of domestic abuse. I go back to 2010, when the Fawcett Society—I had better declare an historic interest as a former member of the board—took the Government to court for a judicial review over their failure to conduct a gender assessment of the impacts of the Budget. It was one of those cases where the society lost the case but won the argument. The Government conceded that the gender impact assessments did apply to the Budget and should have been carried out in two key areas. The challenge also led to an investigation of gender assessments by the Equality and Human Rights Commission.
I note that the noble Baroness, Lady Lister, also referred to the European Court of Human Rights ruling in 2019 that the bedroom tax unlawfully discriminated against vulnerable victims of domestic violence living in sanctuary schemes. If an assessment had been made, victims of domestic abuse would have been exempt in the first place and—of far less concern to me personally, but none the less possibly of interest to the Government—embarrassment to the Government would have been avoided. I suggest that the Government, by either accepting this amendment or introducing something similar of their own, would be avoiding similar events in future.
The noble Baroness, Lady Sanderson of Welton, suggested that we should not be telling the commissioner designate what to do, but I think that requesting and providing the requisite resources—a small sum in the overall context of the government budget—is entirely appropriate when the Bill becomes an Act and is implemented and enforced.
As a noble Baroness said on one of the previous groups, so much of our debate on the Bill has focused on the criminal justice system, but we know that that is not the only place or, for many victims, the primary place where their problems lie. In our Second Reading debate, the noble Lord, Lord Blunkett, acknowledged with admirable frankness that earlier legislation passed on his watch had been inadequate: it was inadequate when it was passed and it has been exposed since. I would say to the Ministers working on the Bill for the Government, “You do not want to be in that position in a decade’s time”. Ensuring that an assessment is made will ensure that the appropriate actions can be taken as they are needed. As the noble Baroness, Lady Lister, said, current assessments are not taking account of the impact of government policies on victims and potential victims of domestic abuse.
Finally, to conclude on Amendment 68, I note that an amendment that might have been here is not. There has been strong pressure on Bills across this House to deal with the disastrous impact of the immigration status of no recourse to public funds. Victims of domestic abuse who have that status are the most vulnerable victims explicitly pushed away from the benefit system. I noted that in Committee the Government said, “Oh, exceptions are made”, but being an exception is not a comfortable, safe or certain place. Only by abolishing the entire status of no recourse to public funds could we ensure that no victim or potential victim of domestic abuse was left, all too literally, out in the cold. I would ask for a change in policy, but an impact assessment would be a start to expose what is happening.
I turn to the other amendments in the group. I note that the Women’s Aid briefing for this stage, which says that it is essential that the Bill delivers reforms beyond the criminal justice system alone if it is truly to make a difference to women and children experiencing domestic abuse. The lack of funding, the inadequacy of our support system, is a fundamental barrier to escaping. Over half of the survivors surveyed by Women’s Aid and the TUC could not afford to leave an abuser. Amendment 10, providing separate payments as standard, has been extensively covered. All I would say in addition is that we do not have to look just at the situation of abuse to consider the damage that single payments of universal credit are doing. I should like to add to my argument on the second group that, even where a relationship does not fit a definition of abuse, the gendered nature of power relationships in our society is still marked by years of male breadwinners, unequal pay and discrimination, particularly against mothers in the workforce.
I recommend that anyone who has not encountered the campaign group Pregnant Then Screwed look it up and consider how reports we have heard about the likelihood of abuse starting in pregnancy fit with the level of pregnancy discrimination experienced in the workplace.
Amendment 69 is about the argument that, when you have just taken the brave, frightening and dangerous step of leaving an abusive relationship, it is unarguably damaging and wrong to take on the weight of a loan; that should be changed.
Finally, on Amendments 72 and 102 on the benefit cap, this is a heartless, disastrous and damaging policy that explicitly and by design throws children into poverty. I note the comments that the noble Lord, Lord Best, made about the Government suggesting that this could be covered by discretionary housing payments from local councils. Here I should perhaps declare my position as a vice-president of the Local Government Association. Local councils are seeing enormous pressures, with continuing austerity in the supply of funds from Westminster. We have heard from Ministers that they want to make this Bill the best it can be. A postcode lottery in the ability to escape from abusive relationships, due to the benefits cap, is not the best this Bill can be.
Baroness Burt of Solihull (LD)
My Lords, back in the days of the joint consultative committee on this Bill, on which I sat, we identified that
“access to money is one of the main barriers to ending an abusive relationship”,
for all the reasons outlined by the noble Baroness, Lady Lister. This is why she returns to this theme today, and I am delighted to continue my support.
We have long discussed single universal credit payments as a major tool of the perpetrator of economic coercive control—a tool handed to him by the Government. Amendment 10 requires the domestic abuse commissioner to look at this and to report to Parliament.
In her remarks, the noble Baroness, Lady Sanderson, said that she believed this is not appropriate or realistically achievable in one year, and that it is for the commissioner to decide what investigations she makes. She has a point. Frankly, I for one do not understand why a review should be necessary at all. For me, the case has already been made several times over.
Maybe those who design the payment systems would prefer to consign the work to enable split payments to the “too difficult” box, but, if they can design a mostly working model to incorporate six benefits into one payment that fluctuates with income—universal credit—I do not see why split payments should not be a doddle.
Amendment 10 is a very moderate amendment that calls for the facts to be laid bare so that the Government can be absolutely sure they will achieve the effect of greater economic independence, not just for the victims of domestic abuse but to generate greater economic independence for women receiving universal credit in all circumstances. Split payments reflect modern-day life. If we purport to see the independence of women in an equal society as a desirable thing, for so many reasons, why hand financial control in the vast majority of cases to the man?
Amendment 68 does the same thing as Amendment 10 from the perspective of relevant government departments, getting everyone involved in implementation looking at the issue from the perspective of what they can do. Amendment 69 takes the strain and worry of having to pay back benefit advances from victims who have received them. As I said in Committee, if the benefit system is not up to helping victims under great duress in a timely manner, those victims should not be made to suffer the worry of where to find the money to repay all the additional expenses they have incurred because of government tardiness.
This is a time of extreme vulnerability, as many noble Lords have said, not only for the victim but, potentially, for her children. Changes in the light of these amendments could make the difference between a decision to escape or to stay and face the misery and danger of remaining with an abuser.
Baroness Sherlock (Lab) [V]
My Lords, I am grateful to my noble friend Lady Lister for her superb introduction and to all noble Lords who have spoken.
Amendment 10 relates to single payments of universal credit. The case has been made overwhelmingly clearly that the system of single payments facilitates financial abuse by allowing perpetrators to control the entire household income. Ministers only seem to have three arguments against acting on this: first, that claimants can ask for split payments, although, as my noble friend pointed out, that just puts survivors at risk; secondly, that most couples keep and manage their finances together, although, as Refuge points out, the finances of those experiencing economic abuse are not managed jointly but controlled by their abuser; and thirdly, that it would undermine the nature of universal credit and be a bit difficult. These are pretty weak arguments. All this amendment does is say that the commissioner will look into the matter further and report to Parliament. If the noble Baroness, Lady Sanderson, and the Government do not want the commissioner to look into it, can I suggest that they simply sort it out themselves? That would save our having to do so.
Amendment 69 would exempt domestic abuse survivors from repaying benefit advances made to mitigate the five-week wait. There is a real risk that survivors wanting to flee will be deterred because they know it is five weeks until they get paid—many are already in debt and do not want to take on more—and if they take an advance on, their monthly income falls below survival level, yet they have other debts to service. Does the Minister accept that this is a genuine barrier? I would be really interested to know the answer.
Amendment 72 would disapply the benefit cap for 12 months for survivors who fled and claimed universal credit. I am not going to repeat the devastating critique made by the noble Lord, Lord Best, but I do think Ministers owe it to this House and to survivors to engage with those arguments properly. Normally, Ministers argue that people can escape the cap by moving to cheaper housing or by getting a job, but those are not practical for someone fleeing abuse. There are already exemptions for those in refuges, so why not for those in any accommodation? There is already an exemption from the work requirement of universal credit for someone who has fled abuse in the previous six months, but what use is that exemption if survivors cannot afford to take advantage of it because they would still be hit by the benefit cap and so could not afford to pay their rent?
These issues are all examples of social security policy or practice which have a differential impact on survivors of domestic abuse. If Amendment 68 were accepted, government departments would have to assess the impact of any social security reforms on victims or potential victims of domestic abuse before making changes, rather than afterwards. It would stop us being here over and over again, trying to point out the problems of systems already changed, by trying to address them beforehand. Had that been done before creating universal credit or imposing the benefit cap or the bedroom tax, these problems could have been designed out at an earlier stage.
The survivor quoted by my noble friend Lady Lister was right: you need money to escape. Our social security system should enable survivors to flee abuse, but it does not. As my noble friend Lord Rooker said, this is a failure of joined-up government. The sad reality is that problems do join up, and at the level of the individual survivor, but the Government response fails to address that. There is no point in the Government legislating to support survivors of domestic abuse while steadfastly ignoring problems in their own systems, which risks exacerbating or even enabling abuse and making it hard or sometimes impossible for survivors to flee and rebuild their lives. I say to the Minister, whom I know cares about these issues, a lot of work has gone into researching, evidencing, and debating the issues, and the fact that the noble Baroness is a Home Office Minister is not a reason not to engage with them. The House, the country and survivors deserve to have these arguments taken seriously. I look forward to her reply.
Baroness Williams of Trafford (Con)
My Lords, I thank the noble Baroness, Lady Lister, and the noble Lord, Lord Best, for explaining their amendments, which relate to the operation of the welfare system, including universal credit and the benefit cap, and their impact on victims of domestic abuse. The noble Baroness, Lady Sherlock, is absolutely right: just because I am a Home Officer Minister does not mean that I should not and do not engage on these matters.
Amendment 10 seeks to place a duty on the domestic abuse commissioner to investigate universal credit single household payments and lay a report before Parliament within a year of Royal Assent. As I indicated in Committee, and as my noble friend Lady Sanderson said, as an independent officeholder, it should be for the commissioner to set her own priorities as set out in her strategy plan, as provided for in Clause 13. I understand that the commissioner has no current plans to examine this issue in the next year. If this amendment were to be made it would necessarily mean that other issues which she might have regarded as more pressing would fall by the wayside. Moreover, the way the amendment is drafted arguably prejudices the conclusions of the commissioner’s report and makes it difficult or impossible for her to comply with the duty if those conclusions do not then come to pass. If the aim of this amendment is to secure a particular preordained outcome, I see no benefit in asking the independent commissioner to investigate the matter. She has already embarked on the mapping exercise in relation to community-based services, so there is no contradiction between government Amendment 17 and the concerns we have about Amendment 10.
DWP is committed to doing all it can to support victims of domestic and economic abuse, including giving split payments when requested, easements to benefit conditionality and referrals to local specialist support. However, by default, a core principle of universal credit is that it is a single household payment. Where a claimant is part of a couple and living in the same household, they will need to make a joint claim for universal credit. Many legacy benefits, including housing benefit, child benefit and child tax credit, already make payment to one member of the household, so the way universal credit is paid is not a new concept. Instead, we believe that this reflects the way that most couples can and want to manage their finances—jointly and without state intervention. We have therefore taken a proportionate response, ensuring that universal credit meets both the needs of the many and the most disadvantaged, including victims of domestic abuse.
Recognising that there are circumstances in which split payments are appropriate, we have made them available on request to anyone at risk of domestic abuse. As part of that, it is important that we allow the individual who is experiencing domestic abuse to decide whether they think that split payments will help their individual circumstances. Once that choice is made, the request for such payment can be made in whatever way works best for the claimant, including during a face-to-face meeting or a phone call. Once paid, the larger percentage of a split payment will be allocated to the person with primary caring responsibilities, such as childcare. This is to ensure the health and well-being of the majority of the household. We can also arrange for any rent to be paid directly to the landlord to protect the family tenancy. No information relating to why a split payment has been requested or granted will be notified to the claimant’s partner. In addition to the right to split payment on request, we have also taken measures to encourage payment to the main carer in the family. Evidence suggests that 60% of universal credit payments are made to women, who are usually the main carer. Given this, we have changed the claimant messaging on the service to encourage claimants in joint claims to nominate the bank account of the main carer to receive their universal credit payment.
I hope that noble Lords will see that, although universal credit’s single household payment mirrors the model of the legacy benefits it replaces, much has been done to offer alternative payment arrangements to victims of domestic abuse. However, universal credit cannot solve all the problems of domestic abuse and split payment is not a panacea. It is crucial to acknowledge that abusive partners may still take money from their victims, whether that is payment of universal credit or any other source of income, including through intimidation, coercion and physical force. Payment to the victim’s individual bank account is no guarantee, with such people capable of learning passwords and taking control of bank cards.
The Government therefore view calls for split payments to all couples claiming universal credit as disproportionate. This would be a fundamental change to the payment structure of universal credit, from a single household payment made to one individual of the benefit unit to payments split between joint claimants by default, rather than made available to those who need this method of payment. It would add very significant cost and complexity. For example, split payments are currently a manual process. To introduce them by default they would have to be automated, at considerable cost and disruption. This would also deflect limited resource from the improvements already prioritised for the universal credit system. Such fundamental change from a single to a multiple-payment model for all, regardless of need, may also put the stability of the system at risk for all 6 million current universal credit claimants, and at a time when numbers have grown significantly in response to the pandemic.
Lastly, the noble Baroness, Lady Meacher, advocated split payment by default, pointing to the Scottish Government’s wish to adopt this method of payment. For the reasons I have set out, that is not the Government’s position. It is also noticeable that the Scottish Government are yet to come forward with firm proposals. I say this not to criticise, but merely to illustrate to the House that this is a complex area in which to design a workable policy. Nevertheless, we will continue to work closely with the Scottish Government to establish the practicalities of delivering split payments in Scotland. Should they come up with a policy capable of being implemented, we will observe their implementation to further understand the impacts, any potential advantages and disadvantages. We would ask advocates of split payment by default to do the same, in a “test and learn” approach, so that future debate on this may be based on practical evidence.
Amendment 68 would require the DWP to assess the impact of welfare reform on victims, and potential victims, of domestic abuse. The DWP already does this, in accordance with the public sector equality duty. An equality impact assessment to support the introduction of universal credit was published in November 2011, and an impact assessment was published in December 2012. Equality impacts have been further considered in developing subsequent plans surrounding the implementation of universal credit. I appreciate the noble Baroness’s intention in proposing the amendment, but I do not think that the additional duty is required.
Finally, Amendment 69 seeks to make victims of domestic abuse exempt from repaying universal credit advances. It is important to note that there can be no such thing as an advance that is never intended to be recovered. Advances are simply an advance of a claimant’s benefit, paid early, resulting in the same amount of universal credit being spread across more payments. It is, therefore, more appropriate to say that this amendment would effectively create grants or additional entitlement to universal credit solely for victims of domestic abuse. While the Bill demonstrates the Government’s commitment to supporting victims of domestic abuse by introducing additional benefit entitlement, we would effectively be unfairly discriminating against all other vulnerable cohort groups who may be facing substantial challenges.
The Deputy Speaker (Lord Bates) (Con)
I have received one request to speak after the Minister and ask a short question of elucidation. I call the Lord Bishop of Manchester.
The Lord Bishop of Manchester [V]
My Lords, I thank the Minister for her response to this group of amendments, in particular to Amendments 72 and 102, to which I have added my name. I also thank her for her reassurance that local authorities will be given clear encouragement to prioritise the needs of domestic abuse victims, as the noble Lord, Lord Best, requested. Can she ensure that national statistics on the number of such cases accepted and rejected in each year will be counted and made public? Visible success for the Government’s preferred approach may serve as encouragement to those facing the unenviable decision of whether they can afford to flee their abuser’s home.
Baroness Williams of Trafford (Con)
Yes, I can certainly request that on behalf of the right reverend Prelate.
Baroness Lister of Burtersett (Lab) [V]
My Lords, I thank all noble Lords who have spoken in this debate, and also the Minister. Noble Lords have enriched the arguments but, given the time, I will not go over what they said. I will not try to come back on the Minister’s arguments because it feels a bit like Groundhog Day. I am disappointed, however, that the noble Baroness did not acknowledge the point that I and my noble friend Lord Rooker underlined, as did others: there is a real tension between social security policy and domestic abuse policy. The policies that she is so committed to in this Bill will be undermined by DWP policies. I hope that at the very least she will take back to the DWP the concerns that have been raised today.
I thank the Minister for saying she will try to arrange for Women’s Aid to meet the DWP Minister to talk about training. As for panic rooms, will the noble Baroness have words with the Secretary of State for Work and Pensions about what has happened and why no action has been taken in response to that judgment? Time is ticking past—we really should have action by now.
My noble friend Lady Sherlock asked a couple of very specific questions about the Minister’s position, and I wonder whether she could write in response. I think I will leave it at that.
I take the point of my noble friend Lord Rooker that it would have been good to have been able to vote on this issue. However, there are so many amendments that noble colleagues want to vote on that I realise it was not possible. That should not mean that Ministers think we do not attach great importance to the arguments that have been made today. I just hope that the Minister will take those arguments to the DWP and see, behind the scenes, if something can be done. Having said that, I beg leave to withdraw the amendment.
The Deputy Speaker (Lord Bates) (Con)
We now come to Amendment 11. Anyone wishing to press this amendment to a Division must make it clear during the course of the debate.
Clause 12: Advisory Board
Amendment 11
Baroness Hamwee
Member’s explanatory statement
This amendment would remove the upper limit for members of the Commissioner’s advisory board.
Baroness Hamwee (LD) [V]
My Lords, like the noble Baroness, Lady Lister, I feel a sense of frustration. There are so many issues that one wants to pursue, but it is not the first Bill where we will experience that. In Committee, we had a series of amendments regarding the role of the domestic abuse commissioner. Almost all of them were concerned with ensuring that the job is not so constructed as to preclude the commissioner making her own decisions on how to go about her work. I put it that way to distinguish it from the content of the work.
The noble Lord, Lord Rooker, put it very succinctly. He said that the whole thrust of certain clauses is a worry because it appears that the Secretary of State wants to pull all the levers. Our debates largely boiled down to the commissioner’s autonomy. I did not entirely follow the assessment of the noble Lord, Lord Parkinson; he said that our amendments focused on independence but then set about how the commissioner should fulfil the role. Independence was a particular focus on this part of the Bill, although naturally noble Lords had been keen to draw attention to a variety of issues. That tension has been a bit of an issue today, of course, but that is perhaps by the by.
Independence is a hugely important component of the role. The Government have been arguing today that that is so in resisting some amendments; they certainly did that in Committee. It is a component, as far as possible, given that the commissioner’s position is that of a statutory officeholder funded by the Secretary of State with no separate legal persona. The framework agreement between the commissioner and the Secretary of State will be very important in this regard.
As well as the commissioner’s freedom to select her own staff—following due process, of course—in Committee we had quite extensive debate about the advisory board. Different noble Lords argued for members of the board with particular backgrounds and experience. The Bill provides for at least six members and spells out whom each of the six is to represent. I have to say that the term “represent” still troubles me. I think there is a danger of muddling representation and advice. The maximum under the Bill is 10 members. Why? Clearly, there is a huge range of problems and situations relevant to domestic abuse and so a range of individuals and organisations with a range of experience and expertise, including experience of the whole sector and its interconnecting parts, is needed.
In our view, the commissioner should have the scope —and this is a matter of her autonomy—to appoint such a board to advise her, or, in the future, him, as she considers appropriate. At this stage, I am not arguing with the interests that the six are to represent under the Bill, although I remain concerned that they will be the Secretary of State’s pick, but if the commissioner wishes to bring in more than four further people in the capacity of advisory board members she should be able to do so. There seems no good reason to impose the restriction on numbers.
In Committee, the noble Baroness, Lady Williams, said that this was
“to ensure that the board can operate effectively and efficiently.”—[Official Report, 27/1/21; col. 1711.]
That is what we all want, but efficiency and effectiveness is about more than numbers. It is about what each member contributes and how the board as a whole operates and that should be a matter for the commissioner. The commissioner can and may well seek advice from elsewhere. I dare say she can bring people into board meetings as a one-off. I am not sure whether she can co-opt—I cannot see that there is a restriction on that. However, those individuals should be afforded the respect of a permanent role if that is warranted and not be limited as the board proposes. This issue encapsulates our concerns about the commissioner’s autonomy and independence and that is why we have chosen it as the one to pursue at this stage. I beg to move.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, I am very glad that the noble Baroness, Lady Hamwee, has brought this matter back to the attention of your Lordships on Report. Clearly, the idea of an advisory board is welcome and, like the noble Baroness, Lady Hamwee, I have no objection to the range of interests which the Bill specifies must be represented on the board itself.
Like the noble Baroness, Lady Hamwee, although it is not the subject of the amendment, I am still very surprised by the term “representative”. I know that this is an advisory board, rather than a governance board, but having the notion of representatives is very bad corporate governance. People should be appointed for what they can contribute, not for whom they represent. I hope that that does not make it more difficult to have an effective advisory board.
I agree with the noble Baroness, Lady Hamwee, on the numbers to be appointed. I accept that 10 is a reasonable figure, but there may be circumstances where the commissioner would want to go above that. I fail to see why we cannot leave it to her good sense to be able to do so, if she wants to. I hope the Government will accept this very sensible and modest amendment.
Baroness Uddin (Non-Afl) [V]
My Lords, I am pleased to have this opportunity to support the noble Baroness, Lady Hamwee, on the role of the commissioner. Making sure it is autonomous and has some independence in decision-making with regards to the team and staff in management positions will enable her to be more effective, given the diversity of those in the women’s sector who undertake these very important areas of work.
I want to support this because the advisory board, management team and other decision-making structures must consider it necessary to embed diversity to strengthen their standing and credibility. More importantly, the presence of a diverse group of experts—and I use this word very carefully; it is not necessarily about representation, and should not suggest that people from diverse backgrounds are not going to be able to provide expertise—will, at all levels of decision-making, convey a very powerful message that the commissioner is committed to safeguarding the services for all survivors with the relevant expertise of different organisations. However she chooses to do that, it is important that she has diverse and meaningful experts who can inform and instruct the work of the commissioner.
Baroness Burt of Solihull (LD)
As my noble friend Lady Hamwee has outlined, this is a modest amendment which gives the commissioner a bit more leeway when it comes to appointments to the advisory board. More than this, it reflects the autonomy that we feel she should have. That is why we have picked this particular amendment as something that represents that.
Circumstances will change, as will the person who inhabits the role of commissioner. New disciplines and new ways of tackling the scourge of domestic abuse will emerge. In the Bill, the commissioner has some discretion on whom she appoints to her advisory board, which must have
“not fewer than six and not more than ten members”.
But what if she—or, in the future he—discovers someone else who could make an invaluable contribution but she already has the maximum number of 10 specified in the Bill? Does she take them on in different ways or co-opt them? Are they representatives? As several noble Lords have said, it is not necessarily a representative role that she needs; it is advice. She is there to advise, so why would we hamper her in that way?
I hope the Minister can explain the logic behind what seems to many noble Lords to be an arbitrary figure. If he cannot, can he please accede to this modest amendment.
Lord Rosser (Lab) [V]
Amendment 11 would remove the upper limit of “not more than ten” for members of the domestic abuse commissioner’s advisory board. In Committee, the noble Baroness, Lady Hamwee, asked
“why put an upper limit in legislation?”—[Official Report, 27/1/21; col. 1706.]
This question was supported by my noble friend Lord Hunt of Kings Heath, who clearly also felt that a domestic abuse commissioner should be sufficiently trusted to decide for her or himself how many people they need on their own advisory board over the lower limit of six provided for in the Bill.
Although it was a straightforward question, reading in Hansard the Government’s response in Committee still leaves one unclear as to the answer. We were told by the Government that no more than 10 members would
“ensure that the board remains focused and provides clear advice to the commissioner.”
What is the Government’s evidence that 11 or 12 members, for example, would lead to an advisory board that is unfocused and provides confusing advice to the commissioner? No evidence at all was provided.
The Government then told us that a maximum membership of 10 was
“appropriate to ensure that the board can operate effectively and efficiently.”
Once again, not one piece of evidence was advanced as to why 11 or 12 would result in an advisory board that did not operate effectively or efficiently.
Unless it is a government desire to control as much as possible from the centre, what is the reason for the Government pulling the purely arbitrary figure of a maximum of 10 out of the hat, with the consequence that the limit on the size of the domestic abuse commissioner’s advisory board is a fixed, rigid and permanent number, laid down in law with not even an iota of flexibility?
Later on in their response, the Government said that they could
“leave it to the good judgement of the commissioner to appoint suitably qualified individuals”.
So the Government have confidence in the commissioner appointing suitably qualified individuals to her own advisory board, but not the confidence to let the commissioner decide how many such suitably qualified individuals she needs on her advisory board, over and above the minimum of six.
The Government also told us that they needed to
“avoid creating an unwieldy board which cannot then provide effective support to the commissioner.”
So the Government have so little confidence in the domestic abuse commissioner that they think that she, or a successor, would otherwise create an unwieldy advisory board unable to provide them with effective support.
However, the Government’s argument in Committee then did a complete U-turn. Having told us that there must be a rigid and fixed maximum number on the advisory board laid down by law, they then told us that the maximum membership of 10
“does not preclude the commissioner from also seeking advice from other sources”,
that
“the commissioner will be required to establish a victims and survivors advisory group to ensure that it engages directly with victims and survivors in its work”,
and, finally, that the commissioner
“may also establish any other groups as she sees fit.”—[Official Report, 27/1/21; col. 1711.]
So while the Government cannot trust the commissioner not to overdo it on the maximum membership of her own advisory board, they presumably trust the commissioner not to overdo seeking advice from other sources, not to overdo establishing a victims and survivors advisory group, and not to overdo establishing however many other groups she sees fit. The necessity for a fixed, rigid, permanent, statutory, government-determined maximum number, to be imposed on the commissioner for her and her successors’ own advisory board, just does not add up. That is why the Government could give no coherent, credible, evidence-backed explanation in Committee of the need for a statutory maximum, or why that maximum should be 10. The Government really ought to have a rethink on this issue.
Lord Parkinson of Whitley Bay (Con)
I thank the noble Baroness, Lady Hamwee, for setting out why she has tabled this amendment again, which would remove the upper limit of 10 advisory board members to be appointed by the domestic abuse commissioner. It is certainly important that the advisory board should be representative of a broad range of different groups and experts who have responsibilities for responding to domestic abuse. However, the Government submit that we need to limit the numbers of the board, not because we want to fetter the discretion of the commissioner but to ensure that the board is sufficiently large to be representative but not so large that it becomes unwieldy.
We consider that the maximum membership of 10 is the right number to ensure that the board can discharge its functions efficiently and effectively. I appreciate the acknowledgement by the noble Lord, Lord Hunt of Kings Heath, that 10 is a reasonable number, even if he supports the amendment in the name of the noble Baroness, Lady Hamwee. This upper limit does not, of course, stop the commissioner from also seeking advice from other experts, but the advisory board itself needs to be of a manageable size and small enough to provide focused support to her. To answer the point raised by the noble Baroness, Lady Hamwee, others could of course attend the advisory board meetings if the commissioner so wished, even if they were not members of it.
As I indicated in Committee, a member of the advisory board could represent the interests of more than one group, ensuring an even wider range of representation. For example, she or he could represent the interests of victims of domestic abuse while also representing the interests of specialist charities.
As the noble Lord, Lord Rosser, noted, in addition to the board, the commissioner will be required through her terms and conditions of employment to establish a victims and survivors advisory group to engage directly with victims and survivors in its work. I hope noble Lords will appreciate the importance of putting victims and survivors at the centre of that work. The commissioner may also establish any other groups as she sees fit, so could—as the noble Baroness, Lady Burt, asks—seek additional advice if she wanted to do so.
So the Government remain of the view that Clause 12 strikes the right balance between setting out certain minimum requirements regarding the membership of the advisory board while affording sufficient latitude to the commissioner to appoint one which can support her in the exercise of her functions. However, we would certainly be happy to keep this under review. On that basis, I hope that the noble Baroness, Lady Hamwee, will be content to withdraw her amendment.
Baroness Hamwee (LD) [V]
My Lords, I am grateful to noble Lords who have supported this amendment. As my noble friend described, circumstances can change. She put the position very clearly.
The noble Lord has just said that the matter will be kept “under review”. I realised as this short debate went on that this was one of the very rare occasions when I wished that the matter was dealt with in regulations rather than in primary legislation, because it would have been so much easier to change the numbers through secondary legislation.
Despite comments made by the noble Lord, Lord Hunt, and by me, the Minister used the terms “representative” and “represent” throughout his response. This is precisely something that continues to concern me—and the noble Lord, Lord Hunt, as he said. The Minister said that the Government do not want to fetter the commissioner’s discretion, but, of course, that is exactly what the clause does.
The dynamics of groups is something which interests me—how a group develops ways of working and works most creatively. Other experts who may be asked to give advice would not be part of a cohesive unit. I think that a cohesive unit where members are able to spark off one another and bring to the table various parts of experience—including of life, as well as of the direct subject matter—makes for the most effectiveness. Sometimes disagreeing makes for effectiveness, too. Of course, a huge group will function in a different way. I am not anticipating a very big group. I have chaired for quite a long time a group of 25; that was too many, but it was too many for the particular task rather than too many, period.
Lord Parkinson of Whitley Bay (Con)
For the benefit of other noble Lords as well, I am happy to provide a quick response. We will certainly take that point away and discuss it further. The noble Baroness is right that as it is in primary legislation then primary legislation would be needed. The Government submit that the number we are putting forward is reasonable. If the experience of this and future commissioners suggests that it is not then we would of course discuss that with them, and it would be a matter for Parliament to change the primary legislation if it so wished. Still, for the reasons that I set out, the Government consider that the number that we are putting forward, 10, will not bring about the problems that noble Lords have anticipated.
Baroness Hamwee (LD) [V]
I thank the Minister for that. I hope we do not feel an urgent need to review this issue. I beg leave to withdraw the amendment.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
We now come to the group beginning with Amendment 12. Anyone wishing to press this or anything else in the group to a Division must make that clear in debate.
Clause 15: Duty to co-operate with Commissioner
Amendment 12
Baroness Burt of Solihull
“(r) the Independent Office for Police Conduct;(s) the Prisons and Probation Ombudsman.”Member’s explanatory statement
This amendment would extend the list of public authorities which have a duty to co-operate with the Domestic Abuse Commissioner to include the Independent Office for Police Conduct and the Prisons and Probation Ombudsman.
Baroness Burt of Solihull (LD)
My Lords, government Amendment 14 is very welcome. Clearly the call for the commissioner to have powers to collect information on domestic homicide through reviews of such homicides has been heeded. Domestic homicide reviews will give the commissioner a hugely valuable picture of deaths occurring as a result of domestic violence. They bring together the statutory and non-statutory partners to learn lessons and, hopefully, prevent deaths in future.
However, as the commissioner-designate says, actions can drift over time, and there is little accountability for implementation. Although statutory guidance says that a copy of each domestic homicide report should be lodged with the Home Office, it is often omitted because there is no legislative backing to the guidance. Someone needs to grasp that issue firmly, put all this disparate information together and drive the changes that are needed from the lessons learned.
Thanks to government Amendment 14, all domestic homicide reports must now be sent to the commissioner. As well as domestic homicide reports, though, there are other valuable sources of information into homicides and suicides—other reviews that hold vital lessons. Amendment 16 would spread the information net wider to incorporate reviews or investigations into deaths where domestic abuse had been identified as a contributory factor. Such reviews could come from any number of sources: safeguarding adult reviews, serious case reviews, NHS serious investigations, misconduct where a death was involved and so on.
Prevention of future deaths reports, issued by the coroner’s office, are hugely important in building up a picture of how things have gone wrong and can be improved in the future. Although this information resides on the coroner’s website, there is no systematic way to interrogate it. While recommendations are made, reports to the commissioner would enable her to correlate them and guide future best practice. The commissioner is anxious to preserve the independence of the Chief Coroner, which has been removed from the list of proposed public authorities required to co-operate with the commissioner, so that judicial independence is not compromised in any way. This is why proposed new subsection (3) requires copies of the coroner’s prevention of future deaths reports to be lodged with the Secretary of State and commissioner. Any public authority specified in Clause 15(3) would be covered; this is the subject of my Amendment 12.
During Committee, we proposed in Amendment 51 that Her Majesty’s Prison Service and the National Probation Service be added to the list of organisations with a duty to co-operate with the commissioner. It was subsequently confirmed that they already fall under this duty, as part of the Ministry of Justice, but there are a couple of authorities that the commissioner would find particularly useful to have added to the list. The Independent Office for Police Conduct will occasionally look at allegations of misconduct in relation to a death where domestic abuse has been a factor, while the Prisons and Probation Ombudsman will deal with deaths in prison or after release, when a victim or perpetrator of domestic abuse has been involved. These are two poignant examples of where the death of a victim can point to how such a tragedy can be avoided and circumstances can be better handled in future.
It is important to note that there is no intention of creating a blame culture here, but instead to learn lessons by producing thematic reviews that inform policy and practice. Every amendment in the group will strengthen the arm of the Secretary of State and the commissioner to do their job and design better systems to prevent systematic failure in the future. I beg to move.
Lord Russell of Liverpool (CB)
My Lords, I rise briefly in support of Amendments 12 and 16, to which I have added my name. In Committee, the Minister was constructive and sympathetic, as she invariably is when considering improvements to the quality, accuracy and timeliness of data, so we are grateful for government Amendment 14. She has followed through, as she promised she would in Committee, and we thank her for it.
The noble Baroness, Lady Burt, has explained clearly what is behind Amendments 12 and 16, so I do not need to go into more detail. It is also clear that the commissioner herself has requested these additions and she is in the business of trying to pull together multiple strands of information, in a way that has not been done before. She is not learning on the job, but to some extent learning as she settles into the job, about the greater complexity that there is and the different strands of information that she will need to make informed decisions and give the Government good advice. It is a direct request from her to fill what she feels are some important gaps in the data that she requires.
The two key benefits are fairly self-evident. The first is to ensure that all these recommendations are recorded and assessed, in particular to see if the recommended follow-up actions are being taken. The second is to draw out the key themes and lessons being learned in order to have a proactive, preventive, joined-up approach, which we clearly do not have at the moment. That is a large part of the genesis of this Bill. The commissioner’s request is extremely simple: please support and accept these amendments, and act. She will then move swiftly to build a more informed, accurate and insightful understanding, which will enable her to do her job as well as we all want her to.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
The noble Lord, Lord Bhatia, has withdrawn, so I call the noble Baroness, Lady Newlove.
Baroness Newlove (Con) [V]
My Lords, on average, two women a week are killed in the UK by a current or former partner. While the figures have dropped slightly over the past decade, they remain unacceptably high. I am pleased that the Government have given their support to my amendment to create a standalone offence of non-fatal strangulation, as we will see later on on Report. This is truly a lifesaving change which I hope will prevent many victims losing their lives as a result of domestic abuse.
Each one of these deaths is an absolute tragedy, and perhaps even more tragic is the fact that we are failing to learn the vital lessons needed to prevent other victims losing their lives. We owe it to all the families who have lost a loved one to ensure that at the very least, their experience will help to prevent future deaths. That is why I support Amendments 12 and 16 to extend the powers of the independent domestic abuse commissioner to create a new oversight mechanism for domestic homicide and suicide, and I call on other Peers to do the same. The oversight mechanism will bring together all the reports and reviews that take place after someone has been murdered or takes their own life as a result of domestic abuse into one central place in a more systematic way. Right now, a huge number of reports are made, ranging from domestic homicide reviews, coroners’ prevention of future death reports and safeguarding adult reviews, but there is no means of bringing them all together in one place. It would also provide a much more robust accountability framework to ensure that individual recommendations are acted on. In too many instances, no processes are in place to ensure that once a report is produced, its recommendations are followed up. The new mechanism would enable the commissioner to identify key themes across investigations to help target the key policy changes needed to prevent future deaths.
I want to tell noble Lords about Anne-Marie Nield, whose death has helped to drive through the campaign for a standalone offence of non-fatal strangulation. What happened after her death makes a powerful case for why a stronger oversight mechanism that would bring together the lessons from a range of reports, not just the domestic homicide reviews, is needed to prevent future deaths. Anne-Marie died in 2016 during a sustained assault by her partner, who had previously subjected her to non-fatal strangulation. The officers who dealt with the previous incidents failed to appreciate the significance of strangulation as a risk factor. No support was offered to her and no referral was made to MARAC. The DHR carried out after her death identified a significant number of errors and omissions by the police. The recommendations then made were accepted in their entirety by Greater Manchester Police.
However, in 2019 the coroner noted in her prevention of future deaths report that not all of those recommendations had been implemented. That was more than two years later. The DHR did not address the issue of non-fatal strangulation, but the coroner did. An examination of this in detail, when it was raised by the family at the inquest, resulted in the officers who dealt with Anne-Marie being questioned about their understanding of the matter. The coroner noted that no reference was made to non-fatal strangulation in the GMP domestic abuse policy and that the police officers involved with Anne-Marie failed to appreciate its significance as a specific risk for domestic homicide. In 2019, the response to the coroner’s prevention of future deaths report stated that the force’s domestic abuse policy needed to be updated and would include non-fatal strangulation as a heightened risk factor. It is not known whether this has been done. Later that year, the Centre for Women’s Justice requested sight of the GMP domestic abuse policy under the Freedom of Information Act, but approximately 90% of it was redacted.
This clearly shows the huge gaps between different reviews and why it is important for us to go well beyond the lessons provided in DHRs and, crucially, arm the new domestic abuse commissioner, Nicole Jacobs, with the powers needed to create the new mechanism, to provide oversight to ensure that key recommendations and lessons are taken forward. For the sake of the families, it is so important that these amendments to give the duty to the domestic abuse commissioner are made to the Bill.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
The noble and learned Lord, Lord Morris of Aberavon, has withdrawn, so I now call the noble Baroness, Lady Wilcox of Newport.
Baroness Wilcox of Newport (Lab) [V]
My Lords, I have added my name to and speak in support of Amendment 12, which would extend the list of public authorities with a duty to co-operate with the domestic abuse commissioner. Amendment 14 would place a new duty on public authorities that carry out reviews and investigations into deaths in which domestic abuse has been identified as a contributory factor to notify the Secretary of State for the Home Office and the office of the domestic abuse commissioner upon completion and to provide them with a copy of their findings.
This oversight by the domestic abuse commissioner is intended to ensure a more systematic collection of investigations into suicides and homicides in which domestic abuse is identified as a contributory factor, together with a robust accountability framework to ensure that individual recommendations are acted upon and key themes across investigations are identified to help target the key policy changes needed to prevent future deaths.
The pandemic has created so many problems for our society, notwithstanding the area of domestic abuse. Coronavirus may exacerbate triggers and lockdown may restrict access to support or escape; it may even curtail measures some people take to keep their own violence under control.
In 2011 domestic homicide reviews were established on a statutory basis under Section 9 of the Domestic Violence, Crime and Victims Act. It was one of the most difficult and disturbing aspects of my role as a councillor when I had to take part in such a review following the death of one of my constituents. It was a devastating time for the community and left long-running consequences as we searched our souls to see what more anyone could have done to prevent such a tragedy. In hard terms, what can be done by agreeing these amendments is to establish a clear oversight and accountability mechanism, led by the independent domestic abuse commissioner, which would help to drive effective implementation and share lessons nationally in the long as well as the short term.
Baroness Williams of Trafford (Con)
My Lords, we return now to the debate we had in Committee about the role of the domestic abuse commissioner in helping all relevant agencies to learn the lessons from domestic abuse-related homicides and suicides so that we can avoid such deaths in future.
In Committee I undertook to consider further amendments tabled by the noble Baroness, Lady Burt. We agree that the commissioner has an important oversight role to play in this area, and government Amendment 14 will support it by placing a duty on those responsible for carrying out a domestic homicide review under Section 9 of the Domestic Violence, Crime and Victims Act 2004 to send a copy of the report of the review to the commissioner.
As I indicated in Committee, we are not persuaded that it is necessary to extend this requirement to the other homicide reviews listed in Amendment 16. Given that the bodies involved are required to engage and feed into domestic homicide reviews, we think the lessons will be captured through this process. Where necessary, the commissioner can also use her powers under Clause 15 to request relevant information from the public authorities subject to the duty to co-operate.
Amendment 12 seeks to add to the list of public authorities subject to the duty to co-operate. We agree in principle that the IOPC, the Independent Office for Police Conduct, should be added to the list. Clause 15(4) includes a power to add to the list of specified public authorities by regulations, and we propose to exercise this power in relation to the IOPC. The IOPC has come late to the party, as it were, so we consider it preferable to use the regulation-making route to allow time for the IOPC and the commissioner’s office to work through the implications for the IOPC of adding it to the list of specified public authorities.
As for the Prisons and Probation Ombudsman, I must point out that it is not a statutory agency, and therefore there are difficulties with referring to it in statute. On a more practical level, the ombudsman routinely publishes its fatal incident investigation reports, so they are accessible to the commissioner and others. That said, there is scope for discussions between the commissioner and the ombudsman about how the flow of relevant information might be improved.
As I indicated at the start of my remarks, we consider tackling domestic homicides a top priority and we intend to work closely with the commissioner on this issue. The changes being made through Amendment 14 and our commitment to add the IOPC to the list of relevant public authorities by regulations are only part of the wider programme of work taking place to tackle domestic homicides. I hope, therefore, that the noble Baroness, Lady Burt, would agree that these are important advances and that accordingly she would be content to withdraw her amendment.
Baroness Burt of Solihull (LD)
My Lords, I am very grateful to the noble Lord, Lord Russell, and to the noble Baronesses, Lady Newlove and Lady Wilcox, for their very knowledgeable contributions, particularly the poignant case of Anne-Marie Nield, provided by the noble Baroness, Lady Newlove, which just illustrates how important it is that we learn the lessons.
I am very grateful to the Minister—she is clearly a Minister who listens and works out what is logically possible and what is not. It perhaps would not have been realistic for her to say, “Oh yes, we’ll do all of that, that’s no problem at all”, but what she has said is extremely encouraging, particularly regarding the IOPC. I am very grateful to her particularly for the way that she has gone more than half way, and her actions, I am sure, will make a very big difference to the ability of the domestic abuse commissioner to do her job—and, indeed, to the Secretary of State. I have great hopes for what the commissioner is going to achieve with all of this. We have certainly loaded on her enough information, so I hope that it is not going to overwhelm her, but I really feel heartened that she is going to have the tools to do the job, and I am very grateful. I respectfully wish to withdraw the amendment.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
We now come to the group beginning with Amendment 13. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Amendment 13
Baroness Burt of Solihull
“Duty to co-operate: children awaiting NHS treatment
(1) The Commissioner must within 6 months after section 15 comes into force issue a request under that section to the NHS bodies in England mentioned in subsection (2) to co-operate with the Commissioner to secure that the objectives set out in subsection (3) are met within 12 months after that section comes into force and continue to be met.(2) The bodies are—(a) every clinical commissioning group established under section 14D of the National Health Service Act 2006, and(b) every other NHS body in England (as defined in section 15(7)) whose co-operation the Commissioner thinks is necessary to secure that the objective set out in subsection (3) is met. (3) The objectives are that—(a) where a child who has been referred for NHS care ortreatment in the area (“Area A”) of a clinical commissioning group moves, as a result of being affected by domestic abuse, to the area (“Area B”) of another clinical commissioning group, the child receives, so far as possible, that care or treatment no later than it would have been received in Area A, and(b) where a child who has been referred for NHS care or treatment in the area of a clinical commissioning group (“Area A”) moves, as a result of being affected by domestic abuse, to Scotland, Wales or Northern Ireland, the NHS bodies in question take the necessary steps (including co-operating with bodies exercising health functions for the area to which the child has moved) to secure, so far as possible, that the child receives that care or treatment no later than it would have been received in Area A.”
Baroness Burt of Solihull (LD)
My Lords, this small group brings together two amendments that I raised in Committee, both relating to the interests of children in circumstances where they flee domestic abuse with a parent or guardian to a new area. Amendment 13 tackles access to NHS treatment and Amendment 76 concerns access to school places.
On Amendment 13, the noble Lord, Lord Rooker, raised the issue of health being a devolved matter. What happens, he asked, when a child flees from England to Wales or vice versa? Hestia lawyers, who have been very helpful in this whole process, have redrafted this amendment to tackle this point, so I hope that this is now satisfactory in legal terms. I think the noble Baroness, Lady Meacher, will probably have more to say on this point.
As always seems to be the case in this place, extremely knowledgeable Members of your Lordships’ House enhanced the debate with their experience and knowledge in Committee. My noble friend Lady Brinton gave a harrowing real-life example of a family forced to flee, and persistent problems of the children with medical complaints going to the back of the queue each time they were forced to move again by the perpetrator. The noble Baroness, Lady Finlay, spoke about how medical and mental problems seemingly unrelated to the stress of living in a household where abuse was going on arose. The Minister talked about the duties and responsibilities of the NHS to treat people in priority need, but, frankly, that is no consolation if your need is not ostensibly a top priority and you never stay on a waiting list long enough to get seen—or even, as pointed out by the noble Lord, Lord Rosser, to get a diagnosis.
Another point raised by my noble friend Lady Brinton in Committee was to inform the House that the Armed Forces covenant already allowed for this prioritisation to happen for Armed Forces families required to move. I hope the noble Lord the Minister will have looked into this and can tell the House, if it is not practically possible to do the same thing for children fleeing abuse, why it is not. As your Lordships know, where there is a will, there is a way.
Amendment 76 has not changed, and the need for priority admission for children forced to flee to a new area to get schooling has not changed either. Amendment 76 amends the schools’ admissions codes in England and Wales to ensure that children fleeing abuse get the same priority as looked-after children in getting a school place. The noble Lord, Lord Rosser, revealed that it takes on average six to eight months for a child to find a new school place on moving area. In his response, the Minister talked about a consultation on the schools’ admissions code to improve the in-year admissions process and fair access protocols for vulnerable children moving in-year. I appreciate that the Government want to get this right and to make it fair for all. Those of us with local government backgrounds or who have been MPs will know just what lengths some parents are prepared to go to secure a place for their child at what they perceive as a good school.
In his remarks in Committee, the noble Lord, Lord Rosser, talked also about food parcels and the double disadvantage faced by children without a registered school place. From this week, most children will be back at school, so I presume that food parcels will cease, though that does beg the question about children who test positive and are required to self-isolate. Will they get food parcels if they qualify for free school meals? I do not expect the Minister to know the answer to this off the cuff—though I would be impressed if he did—so perhaps he would be so kind as to write to me. But these vulnerable children with no school place will not qualify for free school meals or for anything else. I ask the Minister: how fast can this be sorted out? When will this new code be implemented, and what is the Secretary of State prepared to do as an interim measure to negate the extra disadvantages these children face on a daily basis? I beg to move.
Baroness Newlove (Con) [V]
My Lords, I appreciate the time, but I am passionate about Amendment 13, hence my name being on it alongside that of the noble Baronesses, Lady Burt, Lady Brinton and Lady Meacher.
The reason why I am so intrigued by how we treat children suffering from domestic abuse and the effects of having to move around in terms of getting healthcare goes back to when I lost my husband in 2007 and my three daughters were witnesses to that horrific crime. I remember trying to get my daughters some health support from my local commissioner and, failing that, to try to get my youngest daughter to see a therapist due to lack of sleep as a result of the trauma that she suffered. At that time, the response was that nobody could be fast-tracked and that everybody went through the same door. The knowledge of how difficult it is to cope with trauma has never left me—and I did not have to cope with domestic abuse. I was not living in a refuge. I was just trying to do my best to protect my three daughters, who still suffer to this day.
Baroness Meacher (CB) [V]
My Lords, I whole-heartedly support Amendments 13 and 76, to which I have added my name. I applaud the noble Baroness, Lady Burt, for tabling these amendments and speaking so powerfully to them.
The key point about Amendment 13 is that a child in need of NHS care really must have that treatment in a timely way, even if the family have had to move to a different NHS trust area. Having worked in mental health for many years, I refer to the point made so powerfully by the noble Baroness, Lady Newlove. If a child needs psychological help—in this case because of the domestic abuse which they have witnessed or experienced—then the timeliness of that therapy is absolutely vital if the child is not to develop serious mental health problems that are going to be very difficult to remediate later on. I am focusing on mental health issues, but long delays are incredibly serious for a child in need of help with their physical health.
Amendment 13 is not onerous for the Government. It simply places a responsibility on the commissioner, within six months of the implementation of the Bill, to work with clinical commissioning groups and other NHS bodies to resolve the problem of rapid access to NHS treatment for these children. That is all the amendment is asking for. I hope that the Minister can accept the aims of the amendment; I am sure that she will. Maybe she can indicate how the Government plan to meet those aims if not by this amendment, although I hope that they will do so by accepting it.
On Amendment 76, to which I have added my name, the noble Baroness, Lady Burt, has cogently argued the case for it, so I shall be brief. I hope that the Minister will take note of the support of the commissioner for the amendment or similar actions to provide
“equivalent priority access to education for children who are victims of domestic abuse.”
While Amendment 13 relates to health, this amendment relates to education. Our aim here is to ensure that these seriously disadvantaged children, having experienced domestic abuse, do not have their disadvantage exaggerated through enforced non-attendance at school. My goodness, we have heard so much about the importance of children attending school when it comes to Covid, but it is even more important, I suggest, for children who have been affected by domestic abuse.
This modest amendment could transform the lives of those children, yet it would surely not impose unreasonable demands on schools. No doubt the commissioner will want to look at the impact on schools to make sure that there was not a problem, but the amendment leaves it to the Secretary of State to decide how the school admissions code should be amended to ensure that those vulnerable children can attend school. I hope that the Minister can respond positively to Amendment 76.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
The noble Lord, Lord Rooker, has withdrawn, so I now call the noble Baroness, Lady Watkins of Tavistock.
Baroness Watkins of Tavistock (CB) [V]
My Lords, I draw attention to my interests as outlined in the register. I am pleased to follow other noble Lords who have made such cogent cases for both amendments in this group. They are designed to ensure that children who move home, away from their current school and health service area because of domestic abuse are not disadvantaged in access to relevant schooling close to their new residence and, as far as is practicable, receive NHS treatment no later than they would have done had they remained at their previous address. This is not about queue jumping, it is about staying at the same level in the queue when you move.
It is intended that there will be a new health and social care Act this year. Is it feasible not only to enshrine Amendment 13 in this Bill but to reflect the principle in the revised health and social care Act? This would enable the Secretary of State for Health to request that all NHS providers aim to meet standards of fair access for children who move home if they have suffered abuse.
With regard to schooling, it is very hard for children to move out of the area to a new school, losing their previous friends, as a result of abuse. If they then have to travel long distances from their new home to a new school, it makes it very difficult to attend after-school clubs and make local friends if their neighbours are attending more local schools. I have seen this happen all over the country.
For this reason, I support Amendment 76 unreservedly. It is essential that children make new friends and study locally to their home to promote social interaction with other local children and access to clubs and out-of-hours activities associated with schools. These networks are essential to promote children’s mental health, particularly those who have suffered abuse.
Baroness Brinton (LD) [V]
My Lords, I thank my noble friend Lady Burt and the noble Baronesses, Lady Newlove, Lady Meacher and Lady Watkins, for their careful and thoughtful introduction to, and support for, both the amendments. I also thank the Minister for his comments at the end of Committee on the Bill, but, as others have said, it is certainly easier for the Government to work with Amendment 13, because the responsibility falls on the commissioner to work with the NHS—whether it is CCGs or hospital trusts.
The key point for me is that there is already the ability to choose your hospital, which we do through NHS e-referral services. For these children, fleeing domestic abuse and probably being moved on at extremely short notice, the real crisis is that they will plummet to the bottom of a long waiting list at exactly the crisis moment when they will need support.
I urge the Minister to consider that particular problem. I appreciate all the arrangements that the Government have made. We shall see what is in the NHS Bill, as and when this is published, but this very small, particular group of children need very particular support. This is absolutely the case for children applying to child and adolescent mental health services, where we know that there is already an extreme shortage of access to these services. The one thing that is true about children fleeing domestic abuse is that they are likely to be traumatised. Delaying their treatment further will give them very serious problems.
On the schools issue, I think it is an excellent notion to use the same duties as for looked-after children. I also want to make the point that I made about NHS services in Committee. Military children should also be prioritised for school places when they move. This should apply also to children fleeing domestic abuse.
In certain areas where schools are full, a six to eight-month gap to find a school place is not uncommon. This exacerbates the problem of the children not getting any part of their lives back to normal. I appreciate that processes and protocols take time, but there must be some interim measures to help these children. There is no doubt that this Government understand the importance of getting children back into school. As the noble Baroness, Lady Meacher, has said, the impact of Covid and the pressure on schools to reopen as quickly as is safe is completely understandable. These children’s lives are being traumatised by the pandemic—although perhaps not as severely as those of elderly adults. They need a transformation. They need access to school and medical services.
So I urge the Minister to agree to these amendments and ensure that the processes which need to be set up behind the scenes between the commissioner, NHS services and the DfE can happen.
Lord Rosser (Lab) [V]
My Lords, Amendment 13, moved by the noble Baroness, Lady Burt of Solihull, would require NHS bodies to co-operate to allow children who have had to move due to domestic abuse to receive any NHS treatment for which they had been referred no later than if they had not moved. Amendment 76 would extend the duty on local authorities to provide school places for looked-after children to children who are forced to change schools as a result of domestic abuse.
In Committee, the Government’s response to Amendment 13 was the same as it had been in the Commons: namely, that access to the NHS is based on clinical priority and that a child’s need to access and receive health services is assessed and services provided according to clinical need. The response overlooked the point that, in the case of children forced to relocate because of domestic abuse, if the forced move is from an area where the wait following referral could be 18 months to two years to another area where the wait is for a similar period, a clinician might not see that vulnerable child for a lengthy period—literally years—and that any decisions would not be being made by clinicians.
Nor was there any response to another point made in the debate in Committee: namely, that, since the Armed Forces covenant protects service people’s waiting list position if they are redeployed and the family moves home to a new area, why could a similar principle not be applied to children who have to move home to another area due to domestic abuse?
In Committee in this House the Government said:
“When patients move home and change hospitals, the NHS should take previous waiting time into account and ensure, wherever possible, that these patients are not put at a disadvantage as a result … Where the systems or processes of the NHS are an impediment to equitable treatment for this group, it will be important for the NHS to work to ensure that such impediments are removed, and we will support and encourage that.”—[Official Report, 27/1/21; cols. 1727-28.]
In Committee, the Government made no attempt to say whether they either agreed or disagreed that there was a problem of extended delays in waiting times, or whether vulnerable children who had to be relocated due to domestic abuse do or do not receive NHS treatment for which they have been referred no later than if they had not moved.
Could the Minister, in his response today, give us the figures setting out the extent to which children having to relocate due to domestic abuse do or do not receive NHS treatment for which they have been referred no later than if they had not moved? Presumably the Government would not have rejected this amendment in Committee without knowing what the figures were, and thus the extent of the problem and its consequences for the vulnerable children concerned.
Likewise, on the issue of the provision of school places for children who are forced to move location and change their school as a result of domestic abuse, can the Government, if they are not prepared to act on this amendment, provide figures showing the extent to which they consider that there is or is not a problem in respect of the provision of school place for these vulnerable children who need all the support they can get? Like other noble Lords who have spoken in this debate, I look forward to the Government’s response and hope that it will be a positive one.
Lord Parkinson of Whitley Bay (Con)
My Lords, I assure the noble Baroness, Lady Burt of Solihull, that we share her objective that children should not be put at a disadvantage if they are compelled to move home as a result of domestic abuse. It is, of course, right that they should be able to access the medical attention that they need and to secure a new school place quickly, and that any gaps in their education must be kept to an absolute minimum.
In relation to Amendment 11, as the noble Baroness acknowledged, it is a key principle of the National Health Service that access to healthcare is on the basis of clinical need. When patients move home and between hospitals, the NHS should take previous waiting time into account and ensure, wherever possible, that these patients are not disadvantaged as a result. Clinicians have the training and expertise to make decisions about clinical prioritisation so that patients who require urgent treatment can expect to be seen more quickly. Of course, waiting times may vary across the country and between services. Different services experience different challenges in local demand, which can affect waiting times, and it is important that there is local flexibility to manage this. However, regardless of circumstance, clinical commissioning groups and providers have a duty to provide services within the maximum waiting times set out in the NHS constitution, as I set out in Committee and as has been noted again today.
The noble Baronesses, Lady Burt and Lady Brinton, asked about the Armed Forces covenant. The framework of the Armed Forces covenant sets out society’s obligation to members of our Armed Forces and their families, with an aim to prevent disadvantages that they face due to the unique nature of service in our Armed Forces. As part of this promise, families of serving personnel
“should retain their relative position on any NHS waiting list, if moved around the UK due to the service person being posted.”
As I set out earlier, the decision still rests with the clinician to make decisions about their clinical priority in relation to the local population and services available. That is the core principle throughout NHS services.
Local healthcare services are commissioned based on an assessment of the needs of the population they serve, and tackling health inequalities is a core part of those considerations. It will be important for the NHS to learn from experience, including the concerning accounts that have been highlighted by noble Lords both in Committee and this evening, so that barriers to accessing services are removed. We will certainly support and encourage that.
I should say at this point that NHS England is developing an action plan to tackle domestic abuse that will raise awareness among NHS staff. I am sure that staff have the skills to identify and refer and, indeed, to address the issue of NHS staff who are themselves victims or perpetrators. One of the tenets of the action plan will be that any and all victims and survivors of domestic abuse and their children will not be unduly disadvantaged in accessing physical and mental health services when they are forced to move to new accommodation in a different area.
Moreover, at a national level, the NHS long-term plan sets out a number of measures to improve access to services, about which I spoke in Committee, such as extra GP appointments, and new waiting time standards for children and young people for eating disorders and for those experiencing a first episode of psychosis. On top to this, at least 345,000 additional children and young people aged up to 25 will be able to access support via NHS-funded mental health services and school or college-based mental health support teams by 2023-24.
Furthermore, at the spending review in December, the Government announced £1 billion of public money to address backlogs and tackle long waiting lists by facilitating up to a million extra checks, scans and operations. On Friday, the Government announced how millions more children and young people will have access to significantly expanded mental health services, backed by £79 million of public money. This announcement means that nearly 3 million children in England will be supported by mental health support teams in schools, around 22,500 more children and young people will be able to access community mental health services, and 2,000 more children and young people will have access to eating disorder services.
Unlike Amendment 11, Amendment 76 seeks to make provision for both England and Wales, and as education is a devolved matter in Wales, we should not be legislating in your Lordships’ House without the consent of the Senedd. My comments therefore address Amendment 76 as it applies to England only.
The noble Baroness, Lady Burt, has again eloquently explained how children fleeing with a parent from their abuser should not be put at a disadvantage and should not have to wait a long time for a new school place. We agree, which is why the Government are embarking on reform of the English School Admissions Code, which makes better provision for in-year applications and introduces new requirements, including mandatory deadlines for decision-making in relation to in-year admissions and in respect of local authorities’ fair access protocols, helping to ensure that vulnerable school children are allocated a school place as soon as possible. Under the revised code, children fleeing domestic abuse will be eligible to be placed in a school through the fair access protocol if they are struggling to find a school place via the in-year admissions system. These changes should make this process faster and more transparent, and provide a safety net for the most vulnerable children moving school in-year. The Department for Education also proposes to publish new guidance on fair access protocols in England.
The noble Baroness, Lady Burt, asked when the changes to the School Admissions Code will come into force. They are subject to a full public consultation and, of course, to parliamentary approval, but, subject to that approval, we expect the changes to come into force later this year.
The noble Baroness also asked about the numbers affected on free school meals, and I will take up her offer to write with that information.
The noble Baroness suggested the School Admissions Code should change to give children fleeing domestic abuse, or who have had to move home because of domestic abuse, the same priority as looked-after children when there is a waiting list for school places. This proposal and Amendment 76 focus on the application process for a school place in the normal admissions round—that is, at the start of reception or year 7—rather than in the in-year process, which is when children fleeing domestic abuse are more likely to apply. So this amendment would perhaps not help all the people the noble Baroness and all noble Lords, I am sure, have at the forefront of their minds. Although all mainstream state-funded schools in England must maintain a waiting list, they are required to maintain that list only until the end of the first term of the academic year of admission for the school.
We believe that the changes I have outlined to reform the English School Admissions Code to support in-year admissions will have the greatest impact in ensuring that all vulnerable children are able to access a school place as quickly as possible, including those who are affected by domestic abuse. I hope that the changes I have outlined, and the other positive steps to which I have referred, reassure the noble Baroness and, on that basis, she will be content to withdraw her amendment.
Baroness Burt of Solihull (LD)
My Lords, I am very grateful to all noble Lords who have spoken in this debate, and indeed to the Minister. The noble Baroness, Lady Newlove, gave us another real-life example, this time a personal one. It highlights so clearly the importance of the work that we are doing in this place.
The noble Baroness, Lady Meacher, talked about mental health issues and long delays. Think about the life of a child; 12 months in the life of a five year-old seems a lot longer and more important than 12 months to an adult. It is really helpful that the Minister has elaborated on the additional mental health help that is being planned for young people. Particularly with Covid, it will be greatly needed. I just worry whether we have got the resources and the clinicians to be able to populate the services that we are planning.
The noble Baroness, Lady Watkins, talked about the health and social care Bill this year and whether we might be able to incorporate some of the health amendments into that. This is something the Minister did not refer to. Perhaps he might write to the noble Baroness, Lady Watkins, and other noble Lords who have spoken in this debate. She also talked about the importance of school for all kinds of reasons, including building relationships and getting settled after being in a very disturbed and distressing situation.
My noble friend Lady Brinton talked about plummeting to the bottom of waiting lists at the precise moment that children are at their most vulnerable. The Minister gave soothing words that clinicians are required to take these problems into account. But I hope we can get some reassurance—a protocol—that even if you are not desperately ill, those with a mild condition can still get the treatment they need in a reasonable time, given the vulnerability of these young individuals.
The noble Lord, Lord Rosser, gets to the nitty-gritty, as he always does, and the extent of the problem whereby children lose places on NHS lists. I have started to think that maybe I have not been strong enough in these amendments, when I listen to all the valuable knowledge and the examples that we have had.
My noble friend Lady Brinton also talked about the Armed Forces covenant again. I was struck by the Minister saying that we have an obligation as a society to look after the families of the Armed Forces, but surely we have an obligation as a society to look after these very vulnerable and damaged children as well.
I am very grateful to the Minister for the elaboration and the explanations that he has given. It has been extremely helpful. With that, I beg leave to withdraw the amendment.
“Duty to send conclusions of domestic homicide review to Commissioner
(1) Section 9 of the Domestic Violence, Crime and Victims Act 2004 (establishment and conduct of domestic homicide reviews) is amended as follows.(2) After subsection (3A) insert—“(3B) A person or body within subsection (4)(a) that establishes a domestic homicide review (whether or not held pursuant to a direction under subsection (2)) must send a copy of any report setting out the conclusions of the review to the Domestic Abuse Commissioner.(3C) The copy must be sent as soon as reasonably practicable after the report is completed.””Member’s explanatory statement
This new Clause requires a person or body carrying out a domestic homicide review in England and Wales to send a copy of the report of the review to the Domestic Abuse Commissioner.
The Deputy Speaker (Baroness Garden of Frognal) (LD)
We now come to the group beginning with Amendment 15. Anyone wishing to press this or anything else in the group to a Division must make that clear in debate.
Amendment 15
“Duties of public authorities in relation to training
(1) Subject to subsection (3), all public authorities specified in section 15(3) must report to the Commissioner such statistics on enquiries or training as the Commissioner deems necessary.(2) If the Commissioner has published guidance on training or reporting under section 7(2)(d), the training or reporting provided by public authorities to their staff must meet standards specified in such guidance, so far as such standards apply to the public authority.(3) The Commissioner must produce an annual report, in accordance with section 14(2)(b).”
Baroness Armstrong of Hill Top (Lab) [V]
My Lords, it is my pleasure to move this amendment which relates to the training of all front-line workers. We took away the comments and ideas from the Minister in Committee and have brought back a much more modest amendment. It removes the public duty but does lay out a process whereby the commissioner is involved in assessing the training, according to the guidance the Government have published and will, I hope, improve. It also establishes that the commissioner should produce a report each year.
Baroness Helic (Con) [V]
My Lords, I thank the noble Lord, Lord Marks, for signing Amendment 44 and for his assistance in drafting it. It is an evolution of the one that I tabled in Committee, which received strong support from your Lordships’ House. It seeks to ensure that high-level training on domestic abuse, developed with experts, is mandatory for all judges and magistrates hearing family cases. I am grateful to my noble friend Lord Wolfson for meeting with me this morning, and for his acknowledgement that training is a crucial piece of the puzzle in tackling harm and improving family courts. This amendment will be a major contribution to improving the provision and quality of training. That will make our family courts work better and provide the protection, support and justice that victims and their children deserve.
It is a sorry fact that the courts are failing victims. Process and procedure can feel stacked against them. In the worst cases, the courts themselves can be subverted by abusers so that they serve not as a source of justice but as a tool of abuse. For example, one survivor has been taken to the family court by her abuser 27 times since 2015. The court has become the new venue for control.
To give another example, a woman who had been advised to leave her abusive partner by the police, a GP and the independent domestic violence adviser saw her case rushed through and extensive evidence of abuse overlooked by a judge who showed little evidence of awareness of domestic abuse. The words of that survivor should be in all our minds as we consider this Bill:
“We fled to be free from domestic abuse, yet now my ex-husband is allowed to continue his abuse legally through the family court.”
That is a terrible situation. Unfortunately, it is a common one that the Government are all too well aware of, given the harrowing evidence collected during their own harm panel review.
Many provisions in the Bill seek to address this problem. I particularly welcome the excellent progress on post-separation abuse, barring orders and the banning of cross-examination, but we need training to give those provisions practical, tangible value to ensure that they work on the ground to protect survivors and their children. It was a main recommendation of the harm panel, and it is critical to changing cultures and practices within the courts. Without those changes, these new measures will not be enough. They will provide false promises of hope to survivors, and new mechanisms are no help if domestic abuse continues to be overlooked, misunderstood and dismissed.
I know that my noble friend the Minister recognises the importance of training. The Government’s commitment to trialling improved guidance and training across the system is a welcome first step, but it is crucial that this amendment be accepted. Without the statutory imperative and government oversight, we are not providing survivors with any guarantee that work is under way to change the systemic cultural issues that have been identified.
By placing a statutory duty on the Lord Chancellor to publish a strategy and timetable for judicial training, we can ensure scrutiny, rigour and effectiveness, and we can guarantee that this is a commitment that outlasts individual Ministers and funding cycles. By specifying some of the material that the training must cover, we can ensure that it gives judges and magistrates a thorough grounding in all the different ways that domestic abuse can influence a court case or should be taken into account when considering child welfare. By involving the domestic abuse commissioner, we can ensure high-quality training, informed by up-to-date expert thinking that equips our judges and magistrates with the skill they need to wrestle with these difficult cases to provide protection and justice to survivors of abuse.
This amendment will strengthen the training provided; crucially, it will also make it mandatory. Over the course of this Bill, one of the things that we have heard is how insidious domestic abuse can be, how it can appear across all aspects of the family courts’ work and how it can be used to subvert them. This is why it is so important that any judge hearing a family case has a good knowledge of domestic abuse and how it can influence a case.
Domestic abuse must be taken into consideration in the course of a trial, when considering appropriate ways to proceed and when reaching a judgment. It is impossible to do that well without regular training that is consistent, comprehensive and created by true experts. If we do not embed these parameters in legislation, I am afraid that we will be here in a decade’s time, discussing the same ongoing issues in the courts. I dread to think how many people will have suffered during this time if we fail to act properly now.
Family cases are perhaps some of the most difficult and complex cases anywhere in our courts. In the great majority, judges act with wisdom, compassion and care. This amendment should not be seen as an attack on them; rather, it is about ensuring that they have the tools and skills that they need to do their job. Just as we expect judges to be versed in the law, so they should be versed in the facts and consequences of domestic abuse. We owe that to victims going through the courts and to the judges and magistrates themselves.
We have listened to the concerns raised by some noble Lords in Committee and adapted the amendment accordingly. It now guarantees a role in designing training for the Judicial College, the President of the Family Division and the chief executive of the Magistrates’ Association. They will play an important role in making sure that training is as effective as it can be. I hope that this more collaborative approach will attract even wider support than the original amendment.
This amendment is only a start; we should be thinking about training for all staff in the courts and all others, such as Cafcass employees and social workers. However, it is a crucial start: it is how we make the excellent provisions in the Bill a reality on the ground. It is how we will be able to tell survivors in full truth that we have taken real steps to protect them. I hope that my noble friend the Minister will think again and accept this amendment. However, I am prepared to test the opinion of the House.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, I am grateful to the noble Baroness, Lady Helic, for putting down and so persuasively opening this debate on Amendment 44, to which I will speak and have added my name. In Committee, we discussed judicial training at some length. It was interesting that there was general agreement that the amendment on judicial training was by far the most important of all the amendments in a raft of suggested measures seeking reform to procedure in the family courts.
I agree with the noble and learned Baroness, Lady Butler-Sloss, that the Judicial College provides first-class training for judges and magistrates, with its induction courses for those newly appointed or newly authorised to hear family cases and through continuing education, practical workshops and training materials, appraisal and mentoring. Nothing I say should be taken as a criticism of the quality of the work done by that college. However, one thread that ran through the debate in Committee was that, time and again, victims of domestic violence found their experiences of bringing cases in family courts to be somewhere between daunting and terrifying, They often found the courts and judges profoundly out of sympathy with the suffering of abuse victims.
Baroness Newlove (Con) [V]
My Lords, I speak in support of Amendment 44. This vital amendment was put forward by my noble friend Lady Helic—who was brilliant at speaking and introducing this amendment—along with the noble Lord, Lord Marks. Listening just now, I am in admiration of his speech.
As has been discussed, this amendment will introduce mandatory training on domestic abuse for judges and magistrates hearing family cases. I thank my noble friend Lady Helic for her work on this amendment and her commitment to improving the safety of family courts for survivors of domestic abuse.
The case for this amendment is very clear, as we have just heard from the noble Lord, Lord Marks, and my noble friend Lady Helic. The Government’s own harm panel report collected overwhelming evidence on the systemic failings of our family courts to properly account for and guard against domestic abuse. Government Ministers have stated that they support the aims of this amendment and the principles which sit behind it, so I am left wondering why they will not take this clear and decisive step to improve and modernise the culture in the family courts and place this on the face of the Bill.
Instead of repeating points that have been so eloquently made by others during the passage of the Bill, I want to use my time to share the story of a survivor I met a few months ago. I hope her experience will again serve as a reminder of why we are here and who we are fighting for.
This victim took the courage to leave a violent, abusive relationship shortly after her baby was born a number of years ago. However, she remained controlled, harassed, stalked and humiliated by her abuser, who has been enabled by the family courts. Despite an extensive non-molestation order being in place, this victim has been through four years of family court proceedings and has been to court 17 times, including during the Covid lockdown periods. The abuser in this case has significant financial resources and so has spent hundreds of thousands of pounds on his legal team, who rushed her to court multiple times knowing full well that she had no funds to access legal representation and no legal aid.
The court enabled further abuse by allowing him ongoing control and granting supervised contact. Risks to her safety should have been identified as the non-molestation order had been granted on the basis of his violence towards her. Nevertheless, the victim was ordered by the court that she could not take her phone with her during the supervised contact time. She was told that if he hit her or was otherwise violent towards her, she could wait until after the visitation was over to call the police.
The court has reputedly ignored evidence of the abuse against her and her son, who is now living with his violent father. She has lost all contact with her child because a judge declared that her decision to have another baby in a new relationship was a form of parental alienation.
The amendment we are now debating could have helped this survivor and many others I have heard about in a number of ways over a number of years. Mandatory training would have equipped our judges with the knowledge to understand the implications of a non-molestation order and the ongoing risks posed by a violent abuser. It would have supported judges to identify the pattern of aggressive litigation as another manifestation of the abuser’s controlling behaviour, and it would have helped judges to come to safer decisions around child contact arrangements or even to revoke the presumption of parental involvement in the context of a previously violent relationship.
The case I have outlined is particularly shocking because the abuse was easily evidenced and had been confirmed in other areas of the justice system, yet the family courts still failed to protect this survivor and her child. But as we know, other forms of abuse are less overt, more insidious and can be less clearly quantified. What hope do the courts have of identifying abuse when they are not being used legitimately but as a tool to continue control and abuse? Regular mandatory training by experts is required.
I am afraid that we too must consider our responsibilities in cases like this one. As a society and as a Government, we urge survivors to find the courage to leave abuse. We have promoted campaigns which tell survivors, “You are not alone.” But once they do leave, we abandon them at the gates of the family courts where we know that their safety and the safety of their children cannot be guaranteed and the risk of abuse is likely to be overlooked.
For too long, too many of us have turned a blind eye to what is happening in our family courts. We have gathered the evidence and have heard countless stories, so we can no longer claim not to know what is going on. The family courts are failing the survivors of domestic abuse and this landmark legislation will not live up to such a title if it leaves a gaping hole in protection and support by not introducing mandatory training on domestic abuse in family courts. Basically, it is not worth the paper it is written on.
As someone with a background of working in our courts, when I became the other side, the safety net is not as strong and supportive for victims and their families. I therefore urge my noble friend the Minister and the Government to take the necessary action and support this amendment.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, although I will speak to Amendment 15, I should say this on Amendment 44: who could not be moved by the remarks of the noble Baroness, Lady Newlove? In many ways the issues that she, the noble Baroness, Lady Helic, and the noble Lord, Lord Marks, have developed are consistent with those raised by my noble friend Lady Armstrong.
At Second Reading, my noble friend described the challenge of supporting women who are at risk of losing custody of their children, where the main need was identified as domestic abuse. Supporting women who are facing multiple disadvantages requires a workforce with the skills, knowledge, and awareness to understand the range of experiences women have faced. It requires funders, commissioners and policymakers to value the workforce and be prepared to support the development of their expertise. This is particularly so for those who have lived experience—an important point made by my noble friend. Unfortunately, that is not always forthcoming. Many practitioners have reported that the ongoing training and awareness raising needed to support this type of practice was often the first thing to be cut to save money. There are other challenges in the wider workforce; evidence shows that public services are failing to pick up domestic abuse and respond appropriately. This means that many survivors are passed from service to service before finally getting the support they need, causing years of preventable hurt and even putting lives at risk. The need for effective investment in training and support for staff is overwhelming.
Baroness Uddin (Non-Afl) [V]
My Lords, it is a great pleasure to follow my noble friend Lord Hunt of Kings Heath, and the very inspirational speech of the noble Baroness, Lady Newlove. I am in awe of her championing of these matters.
As a professional social worker for some years—although I am long in the tooth now—I cannot imagine dealing with child protection of any nature without having the confidence of knowing that I am well trained. I therefore welcome Amendment 15, and will also make some comments about Amendment 44. I am deeply indebted to my noble friend Lady Armstrong for her thoughtful contributions from Second Reading onward. Having heard the profoundly persuasive and detailed arguments of the noble Baroness, Lady Helic, and the noble Lord, Lord Marks, I speak in support of mandatory judicial training. I believe it to be essential to treat survivors’ experience with the required level of due care.
My noble friend Lady Armstrong highlighted the impact of a well-trained workforce, including police and children’s services, as well as the potential positive effect of well-trained jobcentre managers. We cannot hope to change societal attitudes to poor institutional practices unless government is committed to adequately funding and mandating training at all levels of service, including the highest level in the judiciary. If the noble Baroness, Lady Helic, moves her amendment I will definitely support her.
The amendment also asks that front-line public service staff are properly trained and competent and fully equipped to ensure that thorough assessments can be made of survivors’ needs. Although it is correct that individual public services may be best placed to understand the most effective ways to develop training for their staff, as is argued by the Government, it cannot be overstated that our public institutions may not be the first port of call for help for many women of minority heritage. Therefore, specialist organisations would also require support and training to effectively realise those ambitions. I was so moved by the way that the noble Lord, Lord Marks, argued on behalf of the needs of diverse communities that I need not say another word.
Does the Minister agree that we also need to influence our educational curriculum and provide age-appropriate information? We already do this with regard to sexual orientation and Prevent et cetera; we make sure that our children have information on a whole range of issues. Unless and until we take the matter of violence in the home seriously—violence experienced by parents, relatives or whoever—and we give some details of acknowledgement and equip children, they may not know where to go when they witness this.
I do not have the statistics to hand but is the Minister aware of the evidence which indicates that significant numbers of teenage children, as young as 11, 12 and 13, are accepting violence as a norm within their relationships? This is as well as the tragedy of sexual exploitation and abuse of children which continues to grow exponentially and has overwhelmed the NSPCC, Barnardo’s and other leading children’s organisations.
Training resulting in greater awareness may not be the panacea for stopping violence and preventing the murder of women and children in the immediate future, but combined with the force of law and a well-trained front-line workforce, including the judiciary, the financial support and measures proposed in the Bill will certainly go a long way to build in additional safeguards and improve the chances of survivors to survive violence and abuse.
Baroness Bertin (Con)
My Lords, I will speak briefly to Amendment 44. I thank my noble friend Lady Helic and Claire Waxman, the Victims’ Commissioner for London, and her team for bringing the issue of training to the forefront of this legislation. The evidence provided by my noble friend Lady Helic and others was harrowing, but hearing it is essential. As they said, too often it seems that our family courts are not the tools of justice they ought to be; instead, they can be used to continue that abuse.
Too often we fail to equip judges and magistrates with the knowledge they need to spot and prevent this reality. In doing so, we are denying many victims justice. We in this House can legislate all we like but if those on the front line are not adequately trained, as we have heard, it risks remaining just words, and, as my noble friend Lady Newlove said, not worth the paper they are written on. I believe we can and must do better than this. We should strive to ensure that our courts are at the cutting edge, and not repeatedly behind the curve.
The Bill introduces a number of excellent progressive measures that have the potential to help the family courts to deliver justice safely. They include recognising post-separation abuse and extending the grounds on which barring orders can be used. For those the Government certainly deserve credit, but the success of such measures and the guarantee that they will be translated into better practice on the ground hinges on this training amendment.
The amendment renders the need for training into clear language, creating an imperative to act. We need accountability and oversight in this area, as many others have said. If the Government resist putting the amendment into the Bill—and I do not really understand why they should—then at least we need to get to a place where the judiciary are being open and transparent about the level and quantity of training that they are receiving. Who is giving the training? Is it quality assured and rigorous enough? These are questions that need to be properly addressed.
We have heard a lot in previous debates about the need for data collection. In many areas across business and public life, it is transparency and good reporting that often create best practice, and it does not seem unreasonable for the public but also for the Government to be privy to such data. That would drive change from the bottom up.
We also need to be sure that training reflects the new provisions in the Bill immediately rather than them filtering into the system over a period of months or, worse still, years. Of course it cannot simply be a tick-box exercise that does not drill into the complexity of the reality on the ground with some of these cases. Post-separation coercive control, for example, is a multifaceted and insidious crime committed by devious and practised individuals. They need to meet their match in the courtroom, from magistrates upwards.
As my noble friend Lady Helic has rightly said, this is not an attack on the wisdom of our lawgivers. It is the opposite: providing them with training would deepen that wisdom and arm them with the means to deal with these complex cases. Doing so would give victims faith and confidence in our justice system and let them know that our courts were with them, not against them. It would also send a strong message to perpetrators that the courts were tools of justice, not another weapon to use against their victim.
I know that my noble friend the Minister is sensitive to these issues, and I am sure her answer will reflect that. As I have said before, I do not understand the resistance to putting this into the Bill, but I will listen carefully to her response. I hope she will come forward with some answers that move towards real progress and an understanding of what needs to be done.
Baroness Crawley (Lab) [V]
My Lords, I will be brief. It is a pleasure to follow the noble Baroness, Lady Bertin, on the important Amendment 44. I wish to speak in particular to Amendment 15 in this group, which would transform and regularise the very disparate current systems by which front-line staff of public authorities inquire into domestic violence and take action.
Since Committee, when we last debated this amendment, my noble friend Lady Armstrong has removed the statutory duty wording in order to see this important provision in the Bill. She and I have also had a helpful meeting with the Minister, whom we thank for her time. The new amendment makes clear that there should still be a transparency mechanism to hold public services to account. It is important to note that the domestic abuse commissioner remains supportive of this new adapted amendment and that, as my noble friends Lady Armstrong and Lord Hunt have said, adequate resources are needed to monitor and annually report on statistics on training in such inquiries.
In Committee, the Minister said she did not want sensitive and complex conversations turned into some sort of tick-box exercise. That is understandable, but our response is that the amendment would actually give public services and staff the space and independence to use their professional judgment as long as the context was transparent for monitoring purposes.
In her letter to my noble friend Lady Armstrong following our meeting, the noble Baroness, Lady Williams, makes the helpful observation that relevant public authorities, as listed in Clause 15, are subject to the duty to co-operate with the commissioner, and that this would include the provision of statistics and other information specified in subsection (1) of the new clause, as my noble friend said. She also makes it clear that it is open to the commissioner to address matters relating to training and reporting in her duty to produce an annual report. But, while I hear and to some extent understand the Government’s reluctance to give specific direction in primary legislation to the domestic abuse commissioner regarding the need for public authorities to undertake front-line training, the present situation, based as it is on guidance, cannot continue to let down victims as it does. I look forward to the Minister’s response, in which I hope we will hear clearly her agreement with the principle of the amendment and how it can be taken forward.
Baroness Butler-Sloss (CB) [V]
My Lords, I think I must be the only person who is opposing Amendment 44. I was president of the Family Division and was previously chairman of the family committee of the predecessor of the Judicial College. I do not accept all the criticisms of the noble Baroness, Lady Helic, and other noble Lords, but I realise that I have not sat as a judge for many years. I was sad to hear the criticisms of the noble Lord, Lord Marks of Henley-on-Thames, and what he has said needs to be raised with the president and the chairman of the Judicial College. I of course agree that we will need training in the new Act, but we also need consideration of how some judges have behaved. I have listened with increasing concern to what has been said about the way some people have been treated in the courts; I find that very sad to hear.
I have already said something briefly about the Judicial College on an earlier amendment and shall try not to repeat it, but it is important that it is recognised by the House that the college provides continuing specialist training. Sadly, we all know that domestic abuse has been a serious issue for many years. When I was a family judge, I tried far too many such cases. All family judges and magistrates in the family courts have mandatory, comprehensive, residential training on family issues, which of course includes domestic abuse, which is a core function of judicial family training and is taken extremely seriously. Rape, sexual abuse and domestic abuse are all part of the training. Judges without family training cannot try these cases. The judges and magistrates hear directly from victims, as well as from medical and social work experts. The training is rigorous and the trainers are themselves trained. The college is transparent in what it teaches, and what it trains can be seen.
I can assure noble Lords that the Domestic Abuse Act will be taught to judges and family magistrates and will become a focal point of judicial training. I am sure that judges and family magistrates will be given immediate training of some sort as soon as it becomes law, and the Act will become part of all residential courses. As we have been hearing this evening, judges and magistrates are not perfect and make mistakes from time to time. The Court of Appeal, where I sat for about 10 years, hears a lot of family appeals and does its best to put right what in the first instance has gone wrong.
The Bill is crucial, as we all know, and it is understandable and commendable that noble Lords want judges and magistrates to have the best possible training to implement it, but I really cannot believe it is necessary to have this in primary legislation. The president, the chairman, the director and members of the college who teach judges and magistrates know that the Domestic Abuse Act must be taught as a matter of great importance. I am sure the director of the Judicial College ought to be discussing the Act with the commissioner, and it would be helpful if that took place.
The criticisms from the noble Lord, Lord Marks, and other noble Lords need to be considered as a matter of urgency by the Judicial College, but I ask the sponsors of this amendment: what more would actually be done by putting into primary legislation that the Act must be taught to judges and magistrates when it will be taught without the introduction of this clause? The very serious criticisms that have been made this evening are also matters that, as I have already said, the president and chairman of the college need to take extremely seriously. I have no doubt that the President of the Family Division will keep a close eye on the content and the way in which the Act will be taught and will look very anxiously at what has already been said. As I have already said, in my view the amendment is not necessary. It unfairly calls into question the valuable work of the Judicial College and the conscientious teaching by the judges who carry out this training, together with many experts. The criticisms must be taken into account and looked at, but to put it into primary legislation will not take this matter any further.
Baroness Burt of Solihull (LD)
My Lords, I will speak to Amendment 15, in the name of the noble Baroness, Lady Armstrong, to which I have added my name. My noble friend Lord Marks has already given a very full and knowledgeable explanation of Amendment 44 and its importance. Amendment 15 is a slimmed-down version of Amendment 53, tabled in Committee, which I also supported. This amendment is also less prescriptive than the original: instead of a statutory requirement to train, it now requires only reports to the commissioner on what training is being done. I have seen the letter from the Minister to the noble Baroness, Lady Armstrong, and am pleased to hear about the lengths that are being gone to in order to produce the guidance, which has already been drafted, and the comprehensive framework, to be published later this year.
However, guidance frameworks are not a magic wand. They do not make departments implement them. The commissioner needs to know how far the guidance is actually being followed. She still needs the information so that she can analyse what training is being undertaken, build a picture of best, and less good, practice, and share that publicly in her annual report—not to shame, but to show.
In Committee, we discussed extensively the variability in the prevalence and effectiveness of training across different public authorities and different geographical areas. If we learned nothing else, we learned that the problem of domestic abuse is no respecter of circumstances, class, ethnicity or geographical area. We learned that the problem is pervasive, affecting an estimated 1.6 million people in 2019, and we know that it got worse during the pandemic. In her response, the Minister declared the Government to be fully in agreement with the aims of the then amendment, but she said that a statutory duty “risks undermining professional judgment” and that she did not want
“these sensitive and complex conversations to turn into some sort of tick-box exercise.”—[Official Report, 27/1/21; col. GC 1738.]
That is absolutely fair enough, but it is not the issue here. While some have had excellent professional training, others have not and do not have the confidence to even broach that “sensitive and complex” conversation to which the Minister referred. They may not even have a tick box. In Committee, we heard from the noble Baroness, Lady Armstrong, about reports from the campaigning group Agenda stating that, although 38% of women with mental health problems had been abused, one-third of mental health trusts did not even have a policy on domestic abuse.
If you look at Clause 15(3) of this Bill, you will see how many specific public authorities are involved with domestic abuse—in my Amendment 12, I have added a few more for good measure. Amendment 15 would enable the commissioner to form a picture of what training is, or is not, happening in all public authorities which have contact with victims. She could use this intelligence to form a picture of where opportunities are being utilised and where they are being missed. She could see where training is effective—and we have heard several examples of that—and where it is not. She could issue guidelines built on knowledge of what works in different circumstances. This modest amendment could have big consequences for the chances of victims—whoever they are and whichever public service they use—to be spotted and helped. Let us give our commissioner the tools she needs to do the job.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I am conscious of the time, so the House does not need 15 minutes from me on why we should support these amendments. I will make a few quick points to enable the Minister to respond fully to the debate.
I support both amendments. We have heard some excellent speeches this evening. I hope the Minister can give a detailed response to my noble friend Lady Armstrong. She has amended her amendment to take on board the comments made by the Minister in Committee.
I hear that the noble Baroness, Lady Helic, may divide the House on Amendment 44 when we reach it. I can offer the support of these Benches if she decides to do so. This may focus the minds of some noble Lords in this debate. I shall leave it there and look forward to the Minister’s response.
Baroness Williams of Trafford (Con)
My Lords, I thank the noble Lord, Lord Kennedy, for the parting shot. I thank the noble Baroness, Lady Armstrong, and my noble friend Lady Helic for raising the issue of training for front-line professionals in relation to domestic abuse. Quality training is important to equip practitioners with the knowledge and skills they need to protect and support victims of domestic abuse, including children, in an appropriate manner.
We can also agree on another aspect of the amendment from the noble Baroness, Lady Armstrong. As the noble Lord, Lord Hunt articulated, professionals need to have the skills and confidence to ask the right questions about domestic abuse, and then take the right course of action. If the pandemic has taught us anything, it has served to further highlight the importance of professionals across a wide range of disciplines recognising the signs of domestic abuse and responding accordingly.
The noble Baroness, Lady Uddin, talked about relationship and sex education in schools. Healthy relationships in this area are more important than ever.
In January, we launched “Ask for ANI”, the code word scheme that is now in operation across thousands of pharmacies. The scheme provides a clear process to follow. Working closely with the sector, we have developed bespoke training and guidance to support it to deliver this additional assistance. We have ensured that victims have a means to access potentially life-changing support, and have seen more than 45 uses of the scheme already. This is excellent news.
Those working in vaccination centres are also being provided with bespoke training to ensure that they pick up any signs of domestic abuse and can respond to disclosures should they be made in such safe spaces. I am sure we can all agree that the response and approach to identifying domestic abuse in a pharmacy and in a vaccination centre is very different from how one might respond in a school or a job centre. That is why reporting protocols and training are best developed and delivered by the appropriate responsible agency in each sector. Therein lies the expertise, so we should not adopt a one-size-fits-all approach. The training needs to be tailored to the circumstances of each professional group and will, therefore, take many different forms.
While the domestic abuse commissioner and her office may support organisations in the development of their training, and may deliver some training itself—as Clause 7(2)(d) envisages—it is not appropriate, or indeed realistic, to expect the commissioner to be specifying training or reporting standards for the diverse range of public authorities specified in Clause 15.
Baroness Armstrong of Hill Top (Lab) [V]
My Lords, I am grateful to everyone who has taken part and, given the hour, I will be very brief indeed. Therefore, I will not go through each speech.
I thank the Minister for the work that she has done and her recognition of the importance of training and supporting front-line staff. Of course, I would have liked to have seen this more prominently on the face of the Bill, but I accept that she is committed to this, and I will hold her to continuing to pursue the issue through guidance and through support for the commissioner. My noble friend Lord Hunt and I both emphasised the issue of resource for the commissioner to do that effectively.
The only other issue was that raised by my noble friend Lord Hunt: the basic importance of supporting and training staff. That is one of the most important aspects of how we deal with domestic abuse. As Members across the House and, indeed, the Minister said, our knowledge and understanding of this, given the pandemic and what we have learned from that, should be even greater now. We know that those staff themselves need support and training to deal with the real trauma that they go through when dealing with people who are exhibiting these sorts of problems in front of them.
I will not push the amendment further tonight, but I will keep an eye on it once the Bill is through. I will continue to discuss it with the commissioner and continue to bring it back to the House to make sure that the House and the Government have delivered on the commitments that have been given to train and support front-line workers to ask the right questions, so that they then know the right way to guide and direct people who really need that support.