Grand Committee

Wednesday 10th March 2021 Grand Committee

Wednesday 10 March 2021

Financial Services Bill

Committee stage
Wednesday 10th March 2021 Grand Committee

Committee (6th Day)

14:31

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (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 face coverings except when seated at their desks, to speak sitting down and to wipe down their desks, chairs 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 will invite Members, including Members in the Grand Committee Room, to email the clerk if they wish to speak after the Minister, using the Grand Committee address. 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” the 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 a group.

Amendment 99

Moved by

[Lord Stevenson of Balmacara]

99: After Clause 40, insert the following new Clause—
“Standard Variable Rates: cap on charges for mortgage prisoners
In section 137A of the Financial Services and Markets Act 2000 (the FCA’s general rules), at end insert—“(7) The FCA must make rules by virtue of subsection (1) in relation to introducing a cap on the interest rates charged to mortgage prisoners in relation to regulated mortgage contracts, with a view to securing an appropriate degree of protection for consumers.(8) In subsection (7) “mortgage prisoner” means a consumer who cannot switch to a different lender because of their characteristics and has a regulated mortgage contract with one of the following type of firms—(a) inactive lenders, or firms authorised for mortgage lending that are no longer lending; and(b) unregulated entities, or firms not authorised for mortgage lending.(9) The rules made by the FCA under subsection (7) must set the level of the cap on the Standard Variable Rate at a level no more than 2 percentage points above the Bank of England base rate. (10) In subsection (9) “Standard Variable Rate” means the variable rate of interest charged under the regulated mortgage contract after the end of any initial introductory deal.(11) The FCA must ensure any rules that it is required to make as a result of the amendment made by subsection (7) are made not later than 31 July 2021.””Member’s explanatory statement
This new Clause would require the FCA to introduce a cap on the Standard Variable Rates charged to consumers who cannot switch to a different lender because of their characteristics and who have a regulated mortgage contract with either an inactive lender or an unregulated entity.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, financial regulation has to ensure that consumers are well protected. It is with this principle in mind that I move the amendment in my name. I thank the noble Lords, Lord Sharkey and Lord Holmes of Richmond, for their support. We have also had an aperitif, in the sense that Amendment 127 in the name of the noble Lord has already been debated in an earlier group, although its main focus is aligned with the amendments in this group and I look forward to his comments.

The recent report of the UK Mortgage Prisoners group referred to by the noble Lord, Lord Holmes of Richmond, when he spoke on the earlier group of amendments, is graphic and shocking. It makes the case that the Government need to come forward promptly with a fair deal for the 250,000 or so mortgage prisoners who have been stuck for some 10 years paying higher interest rates than they needed to. The All-Party Parliamentary Group on Mortgage Prisoners has kept this issue alive, having been contacted by hundreds of mortgage prisoners who describe the worry and stress that comes from being trapped as they are. This is a shameful episode.

I am grateful to the Economic Secretary to the Treasury for meeting my noble friend Lord Tunnicliffe, myself and others last month. The Economic Secretary told us that he has a keen interest in settling this matter. He explained that there are difficulties including moral hazard, which means that it is not easy to sort. However, while the issue continues, considerable injustice is occurring. The Government may well be right to say that the SVRs currently paid by mortgage prisoners are only a little higher on average than the SVRs of other lenders but, particularly during the pandemic, small differences matter. In any case, the assertion that the Government make that the differences are rather minor does not ring true in the light of the report from the all-party group. Its case studies, which include nurses, teachers, members of the Armed Forces and small business people, suggest that, for all those who are trapped and struggling with the consequences of the Government’s decisions when money is tight and margins matter, these things need to be sorted.

Surely the true comparison is that if mortgage prisoners were with an active lender and of course up to date with their payments, they would have access to a range of products to transfer to, which would give them a lower fixed rate for their mortgages. In the other place when this issue was discussed, the savings available were said to be in the order of £5,000 a year. That is not an inconsiderable sum. Why are these people being singled out for this penalty?

The problem also seems to be the inability to access the best market-matching deals, compounded by the fact that the prison effect is reinforced by the inability to prevent mortgages being sold off to so-called vulture funds, which are often unregulated. This matter has been left unresolved for far too long. The inability to seek out new deals and to limit costs is causing stress, and in some cases has caused families to lose their homes. As the Government have been involved throughout this process, is it too much to ask them to explain what the plan is, and what the timetable for resolving the incarceration of these prisoners will be?

In its recent report, UK Mortgage Prisoners says that it has put the record straight on what it calls a “Government made scandal”. It is for the Government to defend themselves on that charge. UK Mortgage Prisoners complains that the Government have “effectively ignored the issue” and that, where the FCA has intervened, it has done so in a limited and ineffective manner. Its asks seem very simple: an immediate cap on SVRs for closed mortgages; introducing a tailored mortgage product for those affected; giving credit to prisoners who have for a decade or more made overpayments; stopping penalty charges for any excess arrears; and adjusting credit ratings going forward. Those are five simple steps for 250,000 people whose lives have quite simply been blighted.

[Lord Sharkey (LD) [V]]

My Lords, I declare an interest as co-chair of the APPG on Mortgage Prisoners. Mortgage prisoners exist almost entirely because the Treasury made a terrible mistake when it sold the first tranche of former Northern Rock and B&B mortgages to an unregulated American vulture fund called Cerberus. Cerberus is the name of the multi-headed dog that in Greek mythology sits at the entrance to the gates of hell. That is not an inappropriate name, in view of what happened next.

Three things are needed to rescue mortgage prisoners. The first is to reduce immediately to comparable market rates the SVRs that they pay. The second is to make sure that transfers to much less expensive fixed-rate deals are properly available to them. The third is to make sure that new classes of mortgage prisoners cannot be created in the future.

Amendment 99, moved by the noble Lord, Lord Stevenson, to which I have added my name, deals with the first of those things. My Amendments 116 and 117 deal with the second and third. Amendment 99, as he has so clearly and forcefully explained, would protect the thousands of mortgage prisoners stuck paying high standard variable rates. It would introduce a cap on the standard variable rates paid by customers of inactive lenders and unregulated entities. That would provide immediate relief for thousands of mortgage prisoners, and could give space for longer-term solutions to be found. It would help mortgage prisoners who took out loans with a fully FCA-regulated high-street bank which were then sold on to vulture funds.

Money-saving expert and consumer champion Martin Lewis supports this proposal, and on Monday he released a statement saying:

“While the government chose to bail out the banks in the financial crisis, it has never bailed out the banks’ customers who were victims of that collapse. Mortgage prisoners have been left paying obscene interest rates for over a decade through no fault of their own. They have been completely trapped in their mortgages and unable to escape the financial misery it causes … Coupled with the devastating impact of the pandemic on people’s finances, urgent action is needed to prevent the situation from becoming catastrophic. The independent LSE report I funded has a cogent argument as to why an SVR cap isn’t a balanced long-term solution. Yet in lieu of anything else, I believe for those on closed-book mortgages it is a good stopgap while other detailed solutions are worked up, and I’m very happy the All-Party Parliamentary Group on mortgage prisoners is pushing it. This would provide immediate emergency relief for those most at risk of financial ruin. No one should underestimate the threat to wellbeing and even lives if this doesn’t happen, and happen soon.”


The Government will no doubt say that some mortgage prisoners are already paying rates lower than 3.5%, so rates do not need to be capped. But those sold on by the Government to vulture funds like Cerberus are paying high rates. In the package sold by the Government containing more than 66,000 mortgage loans, 52% were paying rates between 4.5% and 5%, and 37% were paying rates of over 5%, when the mortgages were securitised.

The Government could have set strict conditions when selling the mortgages on the interest rates which could be charged. But when they sold £16 billion of mortgages to Tulip and Cerberus, they imposed only a 12-month restriction on increases to the standard variable rate. These have long since expired and the chief executive of Tulip Mortgages told the Treasury Select Committee that the firm now had

“complete discretion to set the interest rate policy.”

On the sale to Heliodor, the Government claimed that the organisation which bought the loans would be required to set their standard variable rates by reference to the SVR charged by a

“basket of 15 active lenders”.

But when you read the details of the securitisation agreements for the mortgage loans sold, you will find that, actually, the Government have required the SVR to be set only at the level of the third highest of the 15 active lenders. This is absolutely critical, as the third highest SVR is actually 4.49%. The lowest SVR among those 15 active lenders is 3.35%, and the average SVR weighted by market share is 3.72%.

The latest and final sale of the Treasury-held mortgages was announced in February. The book was sold to Davidson Kempner Partners and Citibank, with funding by PIMCO. The Government said that the SVR was going to be charged by reference, again, to a basket of 15 active lenders, but there are no details about how this will work in practice. If it reflects the practice in earlier sales, it will not actually provide any protection to customers. The Government will also say that the FCA has changed the affordability test to enable mortgage prisoners to switch to a different lender. But the progress has been very slow, with only a very small number of lenders willing to use these new flexibilities.

The cap on the SVR proposed by this amendment would provide immediate relief to mortgage prisoners who have been overpaying for the past 13 years. It would protect all mortgage prisoners, including those who are unable to switch. It would give time for other solutions to help mortgage prisoners to be developed. The SVR cap would apply only to mortgages owned by inactive lenders and unregulated entities. It would have no impact on active lenders competing to attract customers.

The cap is supported by the campaign group UK Mortgage Prisoners, as the noble Lord, Lord Stevenson, said. Members of the group have stated that this amendment is the difference between feeding their children and themselves or continuing to rely on food banks. The Government created the problem of mortgage prisoners and it is their moral responsibility to rescue them from the significant detriment that many still face. I urge the Government to accept the amendment in the name of the noble Lord, Lord Stevenson.

I now turn to Amendment 116, which would extend access to fixed interest rates to all mortgage prisoners, enabling them to gain control and certainty over their monthly mortgage payments. When the time came for the nationalised Northern Rock and B&B mortgages to be sold by the Government back to the private sector, they could have pursued an approach which ensured that these customers were in fact protected. They could have sold them to active lenders or secured a commitment from purchasers to offer these new customers new deals.

The risk to these customers was identified. In January 2016, the noble Lord, Lord McFall, wrote to the Treasury, UK Asset Resolution and the FCA to say that the customers affected by these sales should be protected, offered a fair deal and given access to fixed rates. UKAR responded that, by returning these mortgages to the private sector,

“the option to be offered new deals, extra lending and fixed rates should become available”.

But this requirement was not written into the contract when mortgages were sold to funds such as Cerberus, with the BBC reporting that UKAR is now claiming to have been “misled” by Cerberus.

A UKAR spokesman told BBC “Panorama” that Cerberus had the ability to lend to the former Northern Rock customers and that UKAR believed that it intended to do so. They said:

“The reply to Lord McFall sent on behalf of the UKAR board of directors was based on information presented to UKAR and the board had no reason to disbelieve this at that time.”


At the very best, this is evidence of catastrophic incompetence. At worst, it is evidence that UKAR heartlessly pursued profit over care for mortgage customers.

Consumer champion Martin Lewis lays responsibility for the treatment of mortgage prisoners squarely with the Government. He said that the Government

“have sold these loans to professional debt buyers who do not offer mortgages and left these people in these types of mortgages, which have been too expensive, crippled their finances and destroyed their wellbeing.”

14:45

The APPG has heard from hundreds of mortgage prisoners, including nurses, members of the Armed Forces and small business owners, all describing the frustration of taking out a mortgage with a high-street bank and being sold on to vulture funds which do not have to treat them fairly or offer them new deals. By contrast, in the wider mortgage market there have been recent improvements in the deals available to those with active lenders.

In 2018, lender trade bodies facilitated a voluntary agreement to offer these borrowers an alternative deal where they meet certain criteria. This means that any borrower in the active market can access a new fixed-rate deal if they are not in arrears and have a minimum of two years and £10,000 left on their mortgage. However, 250,000 mortgage prisoners with inactive lenders or unregulated firms were excluded from this, meaning that they are stuck on standard variable rates. There is nothing these customers can do to gain control over what, for many, is the largest part of their monthly expenditure.

Mortgage prisoners are worried about rates rising, and that this will come on top of recent increases in their monthly mortgage payments if they took a payment holiday. The FCA has claimed that mortgage prisoners who cannot switch are paying SVR interest rates that are only 0.4% a year higher than other customers with active lenders, but this comparison is completely misleading. It ignores the fact that those with active lenders can access new deals. Only around 10% of customers at active lenders are paying the SVR, and most that are typically switch to a new deal very quickly. More than three-quarters of consumers with active lenders switch to a new deal within six months of moving on to an SVR. If you take two customers, both paying an SVR of over 4% and both with a loan-to-value ratio of 75%, the one with the active lender could access a new deal at 1.8%. The mortgage prisoner is stuck on the SVR, costing them hundreds or thousands of pounds extra every year. These financial strains are having a massive effect on mortgage prisoners and their families.

Amendment 116 would extend the benefit of being able to access fixed rates to mortgage prisoners. It would not distort the market, but it would help ensure universal fair treatment and access to fixed rates for mortgage prisoners. Only inactive lenders exploiting their helpless and captive customer base would be affected. This amendment, and a cap on SVRs, would change the lives of thousands of mortgage prisoners and their families. Again, I urge the Government to acknowledge the moral responsibility for the continuing harm their careless and profit-driven mortgage sales have generated. I urge the Minister to accept Amendment 116.

Amendment 117 would set new conditions for the transfer of a regulated mortgage contract. The Government have now sold all the nationalised mortgage books from Northern Rock and Bradford and Bingley, but the underlying problems illustrated by these sales remain. A lender can choose to sell a mortgage book at any time, and the pandemic may cause more mortgage books to come up for sale. The lender can sell you on to anyone. It does not have to sell you on to an active lender or a high-street bank; it can sell you on to an unregulated entity or a vulture fund. This amendment would require a lender to obtain your consent if it was to sell your mortgage to an inactive lender or unregulated entity. When asking for your consent, it would have to give you clear information about the interest rates and policies which you would be offered. You would need to give your consent only if you were being sold on to an inactive lender or unregulated entity. If your mortgage was being transferred to an active lender which committed to offer you the same deals and interest rates as its existing customers, consent would not be required.

The Government have claimed in the past that this would have a negative impact on financial stability. This is simply not the case. Under this amendment, the Bank of England and the PRA would still be able to use their powers under the special resolution regime to enable the transfer of mortgages from failing banks. They would not need the consent of customers when they used their resolution powers.

The Government have now also shown, at the very end of their sales of these mortgages, that they support applying covenants when mortgages are sold on. The latest sale of £4.9 billion of mortgages announced last week by the Government contained a requirement that the legal title of the mortgages must not be sold on to an unregulated firm. The Government have stipulated that these protections must be replicated in any future sale of the £4.9 billion of loans—meaning that they will apply to these customers until they have repaid their mortgages, no matter where the mortgages end up.

We welcome the Government’s inclusion of these requirements, although it is much too little and much too late. The Government should have applied this provision in their earlier sales of mortgages to unregulated firms such as Cerberus or Tulip Mortgages. Everyone needs the same protection from mortgages being sold to unregulated entities. This amendment would put the customer back in control. It would require consumers to give their consent before their mortgage was sold on to an inactive lender or an unregulated firm. It would extend to the full market the protections the Government have shown that they support.

The Economic Secretary to the Treasury has said that he is committed to helping borrowers with inactive lenders and that he “remains open” to “considering practical solutions”. The Chancellor told Martin Lewis after the Budget that he would keep working on the issue and was committed to finding a workable solution. Amendments 99, 116 and 117 are three practical solutions which we hope that he will consider. We very much hope that the Chancellor and the Economic Secretary will recognise their continuing moral obligation. We hope that they will support these three proposals and take action now to ensure that all mortgage prisoners are finally set free.

[Baroness Noakes (Con)]

My Lords, Amendments 99 and 116 deal with the difficult area of mortgage prisoners. Both amendments seek to go beyond what has already been achieved for mortgage prisoners by the relaxation of affordability rules by the FCA.

I have much sympathy for mortgage prisoners, but we should not lose sight of the fact that these borrowers do not have sufficient financial credentials to qualify for new mortgage lending under current regulatory rules and hence cannot remortgage. They are a hangover from the period when lending criteria were much less strict than they are now and include interest-only borrowers who lack a credible way of repaying capital.

We should be wary of going beyond what the FCA has already done. In particular, making the FCA specify maximum interest rates is an unwarranted market intervention. The FCA is best placed to judge whether any further solutions can be found for these problem borrowers. We should not try to solve the problems of a relatively small number of people with blunderbuss legislation.

My main reason for speaking on this group is Amendment 117, which is fundamentally misconceived. My noble friend Lord True, when he spoke to the large group of amendments headed by Amendment 79 on our previous Committee day, talked about the importance of the securitisation market for mortgage providers. Securitisation ensures that lenders can carry on originating new debt by freeing up capital and liquidity. This is especially important in the mortgage market.

Amendment 117, which requires written consent for every mortgage sold, is not practical. It is likely to mean that lenders will be shut out of the securitisation market. Mortgages are not sold individually: they are parcelled up into books. Requiring consent will make this very much harder to do and will significantly add to the costs of the procedure. Anyone who has tried to get responses from individual account holders where there is no incentive for the account holder to respond will tell you that this is mission impossible.

Mortgage securitisation is a normal balance sheet financing strategy for both retail and commercial lenders. Making it more difficult or expensive for mortgages will have consequences for consumers, whether by restricting the availability of credit or increasing its cost, or both. I cannot support any of the amendments in this group.

[Lord Griffiths of Burry Port (Lab)]

My Lords, I will not detain the Committee long. I would not normally be seen near a finance Bill, largely because I do not have and do not ever expect to have any finance to bother me. Nor would I presume to discuss mortgage payments, since I do not have and never will have a mortgage to worry about. However, what I do have is some experience of people in all kinds of situations, good and bad, from the cradle to the grave.

It was a conversation with someone whom I knew well that made me aware of the truly dreadful situation that we are debating and that they found themselves in. Here was someone who was in a bad—a very bad —situation: they and 250,000 others. My noble friend Lord Stevenson of Balmacara and the noble Lord, Lord Sharkey, have done us a great service in highlighting the plight of these people and have worked out a reasonable way to help them. I am happy to leave the heavy lifting on the matter to them and, no doubt, other Members of the Committee who will chip in on the same side of the argument. They have made a compelling case in detail and with passion, all of which will help to disguise the extent of my own ignorance.

I simply must express my bewilderment at the way, when this subject was debated in the House of Commons, no less a person than the Economic Secretary to the Treasury gave voice to some rather misleading statements. He said, for example, that “mortgage prisoners” were paying a mere 0.4% higher than average mortgages. That figure has been mentioned more than once and is simply not true, according to the picture that I have seen painted in reliable reports from various quarters. He also suggested that when the mortgages in question were sold to “vulture funds” and other non-regulated bodies, the borrowers retained all the same conditions stipulated in their original agreements. From the conversation that I had and other cases that I have subsequently read about, that just is not the case.

The Government seem to have treated mortgage prisoners as cash cows, a means of paying down Treasury debt, after the decision to rescue the banks after the crisis of 2008. On the day that conversation arose, I thought that it would be a friendly interchange on the streets of my home town, with perhaps a mention of the unexpected good fortune of the Welsh rugby team—but it actually opened a can of worms. The person I was speaking to is considered to be a “problem borrower”, one of the people referred to by the noble Baroness, Lady Noakes. But my friend is a problem borrower largely because of the depredation of resources due to the fact that she has been paying mortgages over the odds for 10 years now. Even someone whose only qualification for speaking in this debate is an O-level in economics found himself smelling a rat as he spotted an egregious injustice being done to mortgage prisoners.

The amendments seek to correct this situation. They are balanced and sensible. Martin Lewis, who was quoted more than once by the noble Lord, Lord Sharkey, and is a true expert in this field, writes this:

“Mortgage prisoners are the forgotten victims of the 2008 financial crash. The Government at the time chose to bail out the banks, but unfairly—immorally—hundreds of thousands of their victims were left without adequate help, trapped in their mortgages and the financial misery caused by it.”


No wonder they are problem borrowers. He continued:

“And they have been forgotten ever since.”


The Bill and the amendments give us an opportunity to unforget them, to make good on past failures, and to bring justice to a situation yearning for it. The Minister is a decent and fair man but will of course be bound by the usual conventions in a debate of this kind. It would be good to hear him promise to go back to his department to try to find a way of bringing a little hope and cheer to those who suffer in this way.

[Lord Holmes of Richmond (Con) [V]]

My Lords, it is a pleasure to take part in the debate on this first group of amendments. In doing so, I declare my interests as set out in the register. I congratulate the noble Lord, Lord Stevenson, on the manner in which he introduced the amendment. I also thank him for giving a wave to my Amendment 127 on this subject, which found itself a prisoner in a different group of amendments but was very much to the purpose of this group. Simply put, it would prohibit any more individuals becoming mortgage prisoners in this way.

15:00

I support Amendment 99; I have put my name to it; I think it offers a solution to this problem. This entire debate could be summed up simply as: when Cerberus showed its teeth, where was our financial watchdog? We know that there was no role that the FCA could play on this issue; it is not within its powers or rules as currently set out. One wonders why, having rescued the Rock, which was the correct thing to do across all FS at the time of the crash, we would then imprison so many of those customers and betray them in a somewhat opaque fashion compared to the reality of how they have found themselves in their current position.

This seems eminently resolvable if the Government truly stand by, which I believe they do, a levelling-up agenda—an agenda of opportunity, possibility and enablement. A simple amendment to resolve the issue of mortgage prisoners would fit well within that. If my Amendment 127, Amendment 99 in the name of the noble Lord, Lord Stevenson, or the other amendments in this group do not do the trick, will the Government consider bringing forward an amendment of their own on Report to enable everybody who finds themselves in this situation to have the freedoms and the flexibilities enjoyed by so many others who simply have the financial product of a mortgage? If not, why not?

[Baroness Kramer (LD)]

My Lords, I have taken a vow to try to be brief in all my responses today, recognising the time pressures of the day. I also listened carefully to my noble friend Lord Sharkey and the noble Lord, Lord Stevenson, and I am not sure that the case could be better made.

However, I must follow the noble Lord, Lord Griffiths of Burry Port, in picking up an issue raised by the noble Baroness, Lady Noakes, who described mortgage prisoners essentially as problem debtors. These are people the overwhelming majority of whom would not have any problem with their debt if they had been allowed to take advantage of the changes in interest rates and mortgage terms that have been available much more widely. The case to act for their protection is simply overwhelming. If we had not had the financial crash and they had remained with regulated lenders, the vast majority of them would not be facing any issue. They would have had their mortgages restructured to lower rates and they would not be facing stresses and strains today.

I have been sent information from a significant number of people who find themselves to be mortgage prisoners and, frankly, the stories are often heart-breaking. I heard this morning from someone who is desperately ill in hospital, but the stress of the financial challenges that he faces makes every day far worse and far more difficult to deal with. To me, it is inhuman that action is not taken. The Government recognise that action must be taken, given the circumstances and the stress that so many people face and the corners that they have been pinned into. Surely such action should be taken now and not be kicked down the road yet again.

[Lord Tunnicliffe (Lab) [V]]

My Lords, the case for reform in this area has been overwhelmingly made by my noble friends Lord Stevenson and Lord Griffiths, the noble Lord, Lord Sharkey, and the noble Baroness, Lady Kramer. I wish not to delay the Committee any longer, but simply to advise that the Labour Front Bench supports my noble friend Lord Stevenson’s amendment and the generality of those proposed by the noble Lord, Lord Sharkey.

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

My Lords, I acknowledge that the Government have a great deal of sympathy for borrowers who are unable to switch their mortgage, and we are committed to finding practical ways to help them. That is why we have been working closely with the FCA, and I will set out the action that it has taken.

In 2019, the FCA introduced a modified affordability assessment, which allows active mortgage lenders to waive the normal affordability checks for borrowers with inactive lenders who meet certain criteria—for example, not being in arrears and not wishing to borrow more. As a result of this, inactive lenders have been contacting borrowers who have had difficulty with switching, setting out new options that may be available for them on the active market. I am pleased that a number of lenders, including Halifax, NatWest and Santander, have already come forward with options specifically for these borrowers.

More widely, we have taken steps to support those unable to make mortgage payments during the pandemic. Payment holidays have provided vital support for consumers, including those with inactive lenders, with over 2.75 million mortgage holidays granted since March 2020.

However, policy should be based on clear evidence. The FCA’s analysis found that customers with inactive lenders paid, on average, just 0.4% more than customers in the active market with similar characteristics. There has been comment in Committee on that figure. The FCA’s analysis also found that, of the 250,000 borrowers with inactive lenders, half were in a position to switch to a new mortgage even before any action from the Government. That illustrates one aspect of the diversity of this group.

On the 0.4%, I am aware that there are other estimates out there, including in a recent report, which has been referred to, published by the UK Mortgage Prisoners action group on 8 March, just a few days ago. Treasury officials have reviewed this analysis and noted that these figures seem to be based on surveys with small sample sizes. The comparisons are often inappropriate—for example, contrasting rates that many borrowers with active lenders would not even be offered. I hope that noble Lords will appreciate that this is a complex topic. We are, as I have said, committed to finding practical ways to help.

Amendment 99 seeks to cap standard variable rate mortgages for some customers. Data from the FCA suggest that the majority of borrowers with inactive lenders pay less than 3.5% interest. As I have already said, compared to those with similar lending characteristics, consumers with inactive lenders pay on average only 0.4% more than those with an active lender. This was also backed by the London School of Economics recent report on mortgage prisoners, noting that it does not recommend capping standard variable rates at a low rate. Capping mortgages with inactive lenders could have an impact on their financial stability, as it would restrict lenders’ ability to vary rates in line with market conditions. That would also be unfair to borrowers in the active lending sector, particularly those in arrears, who are paying a higher standard variable rate.

Amendment 116 seeks to provide new fixed interest rate deals for certain mortgage customers with inactive lenders. I have already set out the FCA’s work in introducing a modified affordability assessment and that a number of active lenders—household names—have come forward with offers. The FCA estimates that up to 55,000 borrowers could be eligible to benefit from the new modified affordability assessments. The Government will continue to monitor the situation and hope to see even more options available over the coming months. Enabling people to switch into the active market is the best way to help consumers secure new deals, and that is what we have been doing.

Amendment 117 would require active lenders to seek a borrower’s permission before transferring their regulated mortgage contract to an inactive lender. There are already a number of protections in place for borrowers, meaning that their mortgage cannot be sold on to an unregulated servicer and their terms and conditions cannot change as a result of the sale, so the benefit of explicitly seeking permission from the borrower is unlikely to help them any further.

It is required that all loans within the UK must be administered by a regulated entity, meaning that all customers will be able to benefit from consumer protections —for example, access to the FOS. The terms and conditions of a loan do not change upon sale, meaning that consumers will be treated in line with their original agreement even if their loan was sold to an unregulated entity.

As my noble friend Lady Noakes pointed out, the amendment would also risk disrupting the residential mortgage-backed securities market as it may prevent the effective securitisation of mortgages, where beneficial ownership of a portfolio of mortgages is transferred to a special purpose vehicle. Securitisation is a common way for active lenders to fund themselves, and disrupting the securitisation market would likely have a negative impact on the availability and cost of mortgage credit in the United Kingdom. For those reasons, I ask that the amendment be withdrawn.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, I thank those who have contributed to this debate for the various points they have raised. The noble Lord, Lord Griffiths, has it right: this is a complex and detailed issue and it delves down way beyond most people’s experience of how markets of this type operate. In those circumstances, we have a difficult choice as a Committee on how one might want to take this forward.

On the one hand, my noble friend Lord Griffiths is right that the end of the story is what is happening on the ground to people who have ended up in this situation through no fault of their own but as a result of government action. The Government therefore have to explain to the people of this country why, having created this problem, they do not feel that they have more than just a moral responsibility to see it resolved. On the other hand, I take absolutely the Minister’s point that, it being a complex issue and the Government having seen some action already happening, they remain committed to what he called finding a practical plan forward; I hold on to that. However, the complexity and the fact that this affects a relatively small number of people—although 250,000 people is not a small number in my terms—do not mean that we should simply allow the market to find the right balance between the commercial pressures of offering loans and the ability to service those loans and make a profit out of them from those who have limited resource. There is no doubt at all that, having said all that, there is obviously a pandemic issue as well.

Where does that leave us? I take hope from the fact that the Minister said that there is work on the way to try to take this forward. I recognise that it is a complex issue—indeed, I said so in my opening remarks. However, he must accept that the arguments made by myself but made in much more detail and with a much wider range of evidence by the noble Lord, Lord Sharkey, supported by the noble Lord, Lord Holmes of Richmond, suggest that this is more than just a complicated problem which needs to be bottomed out by working with the market. We need convincing that there is work going on that will result in a workable solution of benefit to those affected by this within a reasonable timescale, otherwise we will come back on Report with a better-drafted amendment—perhaps covering some of the points made by the noble Baroness, Lady Noakes, but not all of them—in a way that makes it clear that the Government cannot continue to let this settle itself. It has to be taken forward in policy terms otherwise too much damage will be caused. In the meantime, I beg leave to withdraw the amendment.

Amendment 99 withdrawn.

Amendments 100 to 102 not moved.

Amendment 103

Moved by

[Baroness Neville-Rolfe]

103: After Clause 40, insert the following new Clause—
“Impact assessments
(1) Regulations made under this Act, and under any regulation-making powers inserted by this Act into any other Act, may not come into force until the Secretary of State has laid an impact assessment of each regulation before each House of Parliament.(2) Rules made by the FCA or the PRA under rule-making powers given to the FCA or the PRA by this Act, and under any rule-making powers inserted by this Act into any other Act, must be published on the website of the FCA or PRA (as appropriate) at least 30 days before they are due to take effect, together with an impact assessment of the rules.(3) In this section, “impact assessment” means an analysis of the costs and benefits of the proposed change, compared to the existing position and other options considered, including the expected impact on UK businesses and the UK economy.”

15:15

[Baroness Neville-Rolfe (Con)]

My Lords, I rise to speak to my Amendments 103 on impact assessments and 104 on reporting. I have been like a long-playing record on the importance of cost-benefit analysis of legislation, regulations and new rules in the form of an impact assessment. I return to the charge today with renewed vigour, as we are transferring very substantial powers from Brussels to Britain. I know that the process of preparing a cost benefit and the sunlight of transparency help enormously in avoiding difficulties and disasters. By the way, I thank my noble friend the Minister for producing an impact assessment on this Bill—always one of the most useful Bill documents, even if in this case it is shortish on numbers.

Amendment 103 is in two parts. First, it requires the Secretary of State—in this case, usually Treasury Ministers—to lay an impact assessment of each SI or regulation that they make before it comes into force. I know from my time as a Minister that having to put my own name to such an impact assessment made me look much more effectively at any instrument I was signing and thus avoid cock-ups—which do unfortunately happen from time to time, even in the Treasury! Secondly, as so much of EU power is being transferred to the FCA and PRA, it requires them to publish their proposed new rules on their respective websites for public scrutiny and to add an impact assessment of the rules. By impact assessment I mean an analysis of the costs and benefits of the proposed change, compared with the existing position and other policy options, including the expected impact on UK businesses and the economy. All I seek is a simple way of ensuring that the authors of new rules always consider the economic impact of their proposals in the interests of good government.

So far, so good. But—and I accept it is a big but —in part these provisions seem to be required already by the Financial Services and Markets Act 2000, as subsequently amended. I have been through the relevant explanations and websites and am still not completely sure whether that is the case. Perhaps the Minister can kindly explain the position and give us some encouraging words as to the present and future position on this important matter. If my proposed provision is genuinely unnecessary, I am of course happy to withdraw it.

Amendment 104 follows on from Amendment 103. However, it is distinct and could be adopted alone. It requires the Secretary of State to publish an annual report on the impact of measures taken by the FCA, the PRA or the Government to regulate financial services with a particular focus on small business, innovation and competitiveness. While there has been a great deal of excellent discussion in this Committee on holding financial service operators to account and improving enforcement, we can lose sight of the value of smaller operators, including those based outside London. Moreover, innovation can bring huge value to consumers—online banking, easy money transfer overseas and share trading on mobile phones are good examples—and our strained economy will benefit from the competitiveness and attractiveness of the UK’s financial sector.

I know from my experience in the intellectual property area, which I hope that the noble Lord, Lord Stevenson of Balmacara, will remember as well, how valuable an annual report of this type can be in focusing staff attention. Writing the report is a complement to the usual in-tray—the focus on risk and the avoidance of banana skins that exercises public servants, sometimes to the detriment of more strategic thinking. I look forward to hearing from my noble friend the Minister on how we might best take some of these matters forward. I believe that they could encourage the intelligent scrutiny of new rules and their early dissemination and publication, and that a strategic look once a year will help the sector to stay ahead in the new world. I beg to move.

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

My Lords, for the purposes of today’s debates I again remind Grand Committee of my financial services interests as in the register.

I have signed Amendments 103 and 104 and agree with the noble Baroness, Lady Neville-Rolfe, so I will not repeat what has already been said. It is a subject that the noble Baroness pursues with diligence, and it is right to do so, even if at times—at least as far as I am concerned—the scope and content of impact assessments are a little disappointing. The amendment relates to the final impact assessments as rules are coming into effect, although, of course, to be useful, impact assessments are needed at each stage. Indeed, if proportionality is to be properly taken into account, that is surely a prerequisite for the regulator.

But returning again to the FiSMA theme, where much of the proportionality, flexibility—call it what you will—will be done on an institution-by-institution basis, so the rules will enable that but not demonstrate how it is to be carried out, I am not sure how that will be properly assessed in an impact assessment based only on the rules. Therefore, it will also be important to be able to capture what actually happens after the rules have come into operation. That might be by way of a retrospective impact assessment after a period of time, and would seem to be another matter that Parliament will need to investigate.

Included in that, it should be relevant to capture the effects of frequency of rule change, which is presently greatly emphasised by regulators and the Government as part of the reasoning behind the Bill, yet somehow I doubt that rule churning was what industry felt it was signing up for by supporting FiSMA. It will be important to understand the scale and nature of that rule tweaking. Amendment 104 gets in part to that with the Government producing a report, but perhaps it should be part of the annual report or an annual impact assessment from the regulators, so that it can be further queried and those regulated can be interviewed by the relevant parliamentary committee. So perhaps the Minister can confirm how this frequency of tweaking will be tracked, what is the Government’s planned part in it and would they support Amendment 104 in particular as part of the way to do that?

[Viscount Trenchard (Con)]

My Lords, I declare again my interests as stated in the register in respect of financial services companies. I am delighted to support Amendments 103 and 104 in the name of my noble friend Lady Neville-Rolfe. My noble friend is a champion of impact assessments and she speaks from experience. The impact of many financial services regulations on smaller firms has been very damaging. I mention just two examples. The unbundling provisions contained within the MiFID II directive, requiring asset management companies to pay separately for research, have been disastrous in their effect on smaller companies with interesting strategies, which have either been forced out of business or forced into mergers where their innovative strategies have not been taken forward. The effects have been less choice for customers and less coverage as a result of the significant reduction in the number of securities analysts, particularly those covering smaller and growth companies.

The effects were predictable, but ESMA ploughed ahead and the FCA acquiesced. It is small comfort now that ESMA itself realises that the unbundling provisions were a mistake, and may move to make changes, but much damage has been done. An impact assessment, such as recommended by my noble friend, would have avoided this.

I also mention the alternative investment fund managers directive. When I worked in Brussels as director-general of the European Fund and Asset Management Association —EFAMA—my French and German colleagues said that they did not think that the EU should move to regulate alternative funds; that was London’s market, and largely London’s alone. Furthermore, it was of interest only to professional investors, who did not need protection from investment risks. They thought that it would be wrong for the EU to try to regulate it. However, three years later, Michel Barnier, as Commissioner for the Internal Market, moved to introduce the AIFMD. Again we were overruled and reluctantly went along with it. An impact assessment might have encouraged the FSA to fight harder against it than it did.

For the reasons so well explained by my noble friend, I support her amendments and look forward to hearing the Minister’s reply.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, I am pleased to be part of this debate, which is narrow in some senses but has the capacity to reach quite widely. It is narrow in the sense that it has been framed through Amendments 103 and 104, which I broadly support, about the need to try and get more of an impact assessment model into the way in which we review the changes that may come through as a result of the return to the UK of powers previously exercised at EU level. It also raises much wider issues, which I will come to before I end my short contribution to this debate.

I am sure that the case made by the noble Baroness, Lady Neville-Rolfe, is about good government. Better regulation was always part of the argument she used when she was a Minister. I well remember the discussions we had across the Dispatch Box about intellectual property, in both primary and subsequently secondary legislation. The material on this was much enhanced by the good work done by her civil servants in bringing forward some of the issues raised and trying to give them a quantitative—not just qualitative—feel when the debates were organised. A lot of the work that they do on better regulation does not get properly recognised, and this is a good opportunity to pay tribute to it. As an example, I particularly enjoyed the annual work that I was often asked to do in relation to the setting of the national minimum wage, now the national living wage. It was always accompanied by a formidable document, created mainly I think by the Low Pay Commission but endorsed by civil servants. It went into every conceivable aspect of the way in which the setting of a minimum threshold for wages would, or could, affect the labour market, with particular reference to women and other low-paid groups in society. It was always a red-letter day in my diary when I saw that coming up; I knew that I was going to be given a very meaty topic to research, read up on and debate. I enjoyed the debates that we had on that.

While I say yes to the thrust of what is being said here, and recognise the benefits that will come from good impact assessments, properly debated, particularly in relation to the regulatory framework in the Bill, I wonder whether there is a slight irony here. The substance of what the noble Baroness is saying in her amendment is that better scrutiny of proposals brought forward for legislation—and, of course, for secondary legislation —would happen if there were better impact assessments. I say in passing, and in reverse order, that a secondary instrument is very much a creature of the primary legislation that has preceded it. It is not uncommon to find in SI impact assessments binary choices, usually not very helpful in detailed essence. The proposition set up in the impact assessment is often, “What would happen if this legislation did not go through?” and then “What will happen when it does go through?” In other words, if there is a change in regulations, you impact; no change and you impact the change. You do not get a range of options.

15:30

That range probably ought to come in the primary legislation discussion, but very often, of course, there is the tyranny of the Bill—which is my term for the way in which Ministers often defend, beyond the point of any reasonable, rational position, the wording of the Bills they are presenting, simply because they have been told by their civil servants, “Ah, Minister, if you give way on this point, your credibility will be shredded, you’ll never be able to stand up in the House and defend any Bill, you can’t let even this comma be changed to a full stop; please don’t even go down that route.” I exaggerate slightly to make the point, but I see from the grins around the table from those who have been Ministers that this is not an uncommon experience. The tyranny of the Bill, and the inability to model it for what could happen if you flexed it slightly, is often a restriction on good debate and scrutiny.

In fact, the most likely option for further work in this area would probably come with pre-legislative scrutiny, which has gone out of fashion recently but I hope will come back. We know for certain that we will get the online standards Bill for pre-legislative scrutiny. I would like to play a part in that, and declare my interest. That would be the point at which some modelling of the impacts of what would happen on various ranges of options might be allowable, and would not be subject to the constraints that I have been talking about in how legislation gets nailed down too quickly and the chances for changing and discussing it are very limited. However, I am wittering on about a pet topic and I should not do that when we are short of time for the Bill and the Committee needs to progress.

I will also say in passing that it is easy to criticise the Government for the work they do, but I am absolutely at one with the noble Baroness, Lady Neville-Rolfe, in saying that we need good, intelligent impact assessments, and I welcome her idea in Amendment 104 of an annual report on the work done in relation to financial regulation, because, taken piece by piece, it is sometimes a bit difficult to get the hang of it. The requirement to do an annual report on all the changes that have gone through and to have to evaluate whether they have been successful or not would give value, and I support her in that.

This has been an interesting debate; I am glad the noble Baroness has raised the issue and I hope that the Minister will make a good response that will give hope for some movement in this area.

[Baroness Noakes (Con)]

My Lords, as many Members of the Committee have already noted, my noble friend Lady Neville-Rolfe is well known in your Lordships’ House for her pursuit of impact assessments and is a stern critic of government departments that hide behind the exact wording of Cabinet Office guidance. Recently, many of us have joined her in being appalled by the complete lack of impact statements published to support the Government’s coronavirus policies, involving—I remind the Committee—the greatest ever peacetime infringement of civil liberties. The Department of Health and Social Care used the flimsy excuse that the Cabinet Office does not require impact assessments for policies intended to have a temporary effect.

I am particularly interested in my noble friend’s Amendment 104, which requires an annual report to Parliament. I am not wholly in favour of annual reports, because they can degenerate into boiler plate and have a very short-term horizon; I prefer the concept of periodic reports that can look at impacts over a longer time span. However, whether such reviews are annual or less frequent, I suggest to my noble friend that the report could also usefully concentrate on the quality of consultation carried out by the regulators, and that would include the quality of impact statements.

Consultations by the PRA and the FCA often feel like not much more than going through the motions. They are not alone in the public sector in seeming to exaggerate the benefits and underestimate the costs. HMRC, for example, is a particular case in point, having been criticised more than once by the Economic Affairs Committee of your Lordships’ House for the use of cost assumptions that seem to bear little relationship to reality. Similarly, the PRA’s consultation on ring-fencing rules was widely regarded as a massive underestimate of the cost of compliance, as was borne out by subsequent cost experience. A superficial impact assessment, or one that overstates the benefits or systematically underestimates the costs, is worse than useless and can lead to poor policy-making. It would be wise to ensure that the regulator’s performance in this regard is kept under review.

[Baroness Kramer (LD)]

My Lords, in many of the groups of amendments to the Bill we have discussed the issue of accountability, and it has been a very important discussion. However, we have also discussed the necessity to have proper evidence and information to make that accountability worthwhile, valid and effective. These amendments follow exactly that direction.

One of the pleas that I will put in is that an impact assessment should be studied and then reviewed. The noble Lord, Lord Tunnicliffe, is not speaking in this group of amendments but I can think of numerous occasions when he has spoken on a financial services Bill and pointed out that the information in the assessment did not seem to answer any of the obvious questions that a sensible person would ask in order to understand the regulations involved. I would join him in that. We seem to have narrow definitions of what an impact assessment is, and it seems to me that it should do what it says on the tin. It ought actually to assess the impact in a way that is meaningful to the regulation or piece of legislation in front of us.

This push for evidence and information, and quality in both, is an important thrust of the conversations and debates that we have had around the Bill. I very much hope that Ministers take that on board, because this is starting a pressure that will not go away. In fact, for the Government, if they want to produce the highest-quality legislation possible, the discussion created by developing a high-quality impact assessment will lead in the end to far better legislation.

[Lord Eatwell (Lab)]

My Lords, my initial reaction to the amendment of the noble Baroness, Lady Neville-Rolfe, was to puzzle over exactly what sort of impact assessment she had in mind. Was she perhaps thinking of the famous remark by the noble Lord, Lord Turner, that the banking sector in the UK does much that is not socially useful? After all, the ultimate rationale for regulatory activity is the enhancement of the common good—the goal of good government.

However, this debate has clarified the issue before us, which is that an effective impact assessment requires not just thorough analysis but a definition of an objective or, perhaps, objectives. The lack of clear objectives is the key weakness of Amendment 103. Amendment 104, therefore, is much stronger in that it lays out a number of objectives against which an impact assessment might be calibrated. The key to resolving the dilemma—I apologise for sounding a bit like a broken record—is to take the parliamentary role referred to in Amendment 103 and combine it with the sense of Amendment 104. An effective parliamentary process and, dare I say, a parliamentary committee, could define the objectives to be addressed in any impact assessment of the type referred to in Amendment 103—“We want to know the impact of this regulation on problem x, y or z”—and then seek annual reviews focusing on matters that are deemed to be important at any given time, thereby avoiding the template issue referred to by the noble Baroness, Lady Noakes.

That is what is missing from the amendment—a means of making the impact assessment an effective means of acquiring information and an insight into the thinking of regulators, which can then be scrutinised in a coherent and consistent manner.

[Earl Howe (Con)]

My Lords, as my noble friend Lady Neville-Rolfe has explained, these amendments bring us to the question of how we report on the impact that regulation has on firms. Every noble Lord who has spoken today has referred to the value of impact assessments for Parliament and the Government in particular, and I do not dissent from that general proposition. My noble friend Lord Trenchard in particular spoke about the value of measuring the burden imposed by certain EU rules when we were an EU member. I hope that it is of comfort to him if I remind him that the Chancellor has said that decisions about financial services regulation after the end of the transition period—we have of course now passed through it—would be based on what was right for the UK, taking account of what is necessary to ensure financial stability, market integrity and consumer protection.

Amendment 103 would require the Government to lay impact assessments for each of the regulations made under the Bill. It would also require the PRA and the FCA to publish any rules made using the powers in the Bill in draft, alongside an impact assessment. I do not believe that the amendment is necessary, as the Government and the regulators are already committed to identifying and publishing the expected impacts of subsequent rules and regulations made under the Bill.

The Government have of course published an impact assessment alongside the Bill. In line with the guidance set out in the Government’s Better Regulation Framework, the impact assessment sets out HM Treasury’s current understanding of the costs and benefits of the measures. Where appropriate, further details will be set out in the impact assessments that will accompany the secondary legislation made under the Bill. I remind my noble friend Lady Neville-Rolfe that the regulators are required by FSMA 2000, with some very limited exceptions, to undertake a cost-benefit analysis for proposed new rules, and to publish those alongside their draft rules as part of their consultation. The PRA and FCA have already published their first consultations on the draft rules that they intend to make in relation to the prudential measures in the Bill, and they include comprehensive cost-benefit analyses.

Amendment 104 would require the Secretary of State to report on the impact on business that measures taken by the regulators and the Government to regulate financial services may have, and particularly to report on the impact on small businesses, innovation and competitiveness. We have spoken at length in this Committee about competitiveness, and I hope that I have demonstrated how importantly the Government take this issue. Additionally, my noble friend Lady Penn recently wrote to my noble friend Lady Neville-Rolfe about how the Government support smaller financial services firms.

I am sure that my noble friend Lady Neville-Rolfe does not need to hear me say that the Government are committed to ensuring that the financial services sector supports competition and innovation, allowing new firms to compete and grow. Of course, both the FCA and the PRA have a statutory objective to promote effective competition.

In earlier debates, we have talked about the new accountability frameworks that the Bill puts in place for the prudential measures. Those require the PRA and the FCA to have regard to UK competitiveness, among other things, when making rules to implement Basel or the investment firms prudential regime. They are required to report on how having regard to that has affected their proposed rules. The FCA and PRA are of course already required to prepare annual reports, which are laid before Parliament for scrutiny. These reports cover the extent to which the regulators’ objectives, which include promoting effective competition, have been advanced, and how they have considered existing regulatory principles in discharging their objectives.

On this basis, I hope that my noble friend Lady Neville-Rolfe agrees that I have said enough to make her feel comfortable in withdrawing her amendment.

15:45

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

I have received one request so far to speak after the Minister. I call the noble Baroness, Lady Bowles of Berkhamsted.

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

I am sorry to intervene again, but I feel I must correct what the noble Viscount, Lord Trenchard, said—or at least remind him that the unbundling of the analysts’ report was an invention of the FSA that the UK then sold to the EU, and now the EU is blamed for what the UK did through the EU. There are many other examples of that, although I can confirm that AIFMD was definitely not one of those. It would be nice if sometimes the Minister could intervene to at least have the record straight.

[Baroness Neville-Rolfe (Con)]

My Lords, I thank all noble Lords who have taken part in this debate, and I thank the noble Baroness, Lady Bowles of Berkhamsted, for her thoughts and for raising the ante to talk about a slightly more dynamic form of impact assessment.

I thank my noble friend Lord Trenchard for the very example that is now the subject of debate. I think the point that he was making, which I would support, is that impact assessments can reduce the perverse effects of such measures. We know—it is a matter of record, I think—that the number of analysts, especially small analysts, has gone down as a result of the MiFID legislation. An impact assessment on how it was enforced, whether its origin was in the brain of the UK or of the EU, could have been helpful. Of course, that is what my amendment is all about.

I was glad to have the support of the noble Lord, Lord Stevenson, for working up a decent impact assessment model. I share his tribute to public servants, having been one a long time ago, and the work of bodies that produce evidence for things, such as the Low Pay Commission and social trends, and the MPC in our own sector of financial services. Better scrutiny would take place with better impact assessment. It is why, regarding proposed new subsection (3) which Amendment 103 would insert, I talked about both the existing position and other options, because I agree with the noble Lord that it is much better if you can look at several options when developing difficult policies. I agree that pre-legislative scrutiny can sometimes be very useful.

My noble friend Lady Noakes reminded us, rightly, of the lack of impact assessment on the various Covid measures. I thank her particularly for the suggestion that the quality of consultation by the FCA, the PRA or the Government and of impact assessment should be added to any review.

I was glad to hear noble Lords build on what an impact assessment system should look like, including the noble Baroness, Lady Kramer—I echo her concerns about accountability—and the noble Lord, Lord Eatwell. There is a feeling that it is important to have a decent system.

My noble friend the Deputy Leader explained, as I had already anticipated in my own remarks, that a system does exist: both for government regulation and regulation by the two regulators, and for cost-benefit analysis to be produced. What I am not clear about is whether that is fit for purpose. It is very difficult to find out what the requirements are and to read all the various bits of paper. This is why I tabled the amendment, so that we could have an intelligent debate. Even if noble Lords do not want to go along with Amendment 103, we should make an effort, with the dissemination of the Bill, to ensure that the requirements are better understood.

That means that Amendment 104 is perhaps more important, because it asks that we review regularly what is being done in the way of cost-benefit and impact assessment, and how the objectives set out are achieved. I suggested some objectives in Amendment 104; others will no doubt be concerned about other objectives of the regulators. As we have said on earlier amendments, competition is not really the same as competitiveness. I was also keen to throw in small business—for reasons that my noble friend knows very well—and innovation, because of their value.

With this Bill, we need to satisfy ourselves that the new framework satisfactorily replaces, indeed, improves on, what went before. I take the point—the Chancellor is right—that we now have the chance to do the right thing in the UK, and to do it better than was done under the auspices of the EU. I may come back to this on Report, because a simple well-understood system of impact assessment, and of annual review in some form, would boost scrutiny and transparency, which has been a key theme of the Bill, as well as the governance of our largest and most important economic sector. I beg leave to withdraw the amendment.

Amendment 103 withdrawn.

Amendments 104 to 106 not moved.

Amendment 107

Moved by

[Lord Sikka]

107: After Clause 40, insert the following new Clause—
“FCA duty to make a statement about ministerial directions on investigations
(1) The Financial Services and Markets Act 2000 is amended as follows.(2) After section 1T (right to obtain documents and information) insert—“1U Duty to make a statement about ministerial directions on investigationsWhere a Minister directs, comments on, or intervenes with an FCA investigation into wrongdoing or malpractice by a company, the FCA must make a public statement about the nature of any such intervention.””

[Lord Sikka (Lab) [V]]

My Lords, Amendment 107 seeks transparency about ministerial interventions in regulatory investigations, by requiring the FCA to make a statement. I am grateful to the noble Baroness, Lady Bennett of Manor Castle, for her support. Currently, ministerial interventions are made in secret, and neither Parliament nor the people are able to call Ministers to account. Ministers intervene to stymie investigations, and the trail is often carefully concealed. Some years later, a few interventions do become visible.

Consider the case of HSBC, a bank supervised by UK regulators, implicated in global money laundering and protected by UK Ministers and regulators. In July 2012, the US Senate Permanent Subcommittee on Investigations published a report entitled U.S. Vulnerabilities to Money Laundering, Drugs, and Terrorist Financing: HSBC Case History, which documented the fact that, despite evidence, HSBC staff knowingly laundered money for criminals and engaged in sanctions-busting.

In December 2012, HSBC was fined $1.9 billion by the US authorities—the biggest fine at that time. The US Department of Justice said that HSBC permitted

“narcotics traffickers and others to launder hundreds of millions of dollars through HSBC subsidiaries, and to facilitate hundreds of millions more in transactions with sanctioned countries”.

It added that HSBC had

“accepted responsibility for its criminal conduct and that of its employees.”

However, HSBC was not prosecuted, and instead entered into a deferred prosecution agreement until 2017. The levying of the largest ever fine on a UK bank and admission of “criminal conduct” did not prompt an investigation of HSBC’s practices in the UK. Did the bank engage in similar practices here?

In March 2013, the US House of Representatives Committee on Financial Services began a review of the US Department of Justice’s decision not to prosecute HSBC or any of its employees or executives for criminal activities. The committee’s July 2016 report, Too Big to Jail, showed that the Governor of the Bank of England, the chief executive of the Financial Services Authority and Chancellor George Osborne intervened to protect HSBC. The report contained a two-page letter, dated 10 September 2012, from the Chancellor to Ben Bernanke, chairman of the US Federal Reserve. It urged the US to go easy on HSBC, as it was too big to fail. The US report reproduced some correspondence showing the determination of the UK Government and regulators to protect a bank that had, by its own admission, engaged in “criminal conduct”.

The FSA, Bank of England and Chancellor also urged the US to go easy on Standard Chartered Bank, which was fined $670 million for money laundering, sanctions busting and falsification of records. Its deception was aided by Deloitte. The US Treasury court documents referred to the bank as a “rogue institution”. No statement was made at that time to the UK Parliament to explain regulatory silence or the Chancellor’s interventions. How do we improve banking regulation or hold anyone to account for nefarious practices when Ministers and regulators collude to protect wrongdoers?

I shall return to some questions after my next illustration. It relates to the July 1991 closure of the Bank of Credit and Commerce International. It was the site of the biggest banking fraud of the 20th century. BCCI was supervised by the Bank of England and was closed only after investigations in the US. The UK closure was followed by a few prosecutions and some parliamentary committee hearings. However, unlike previous bank collapses in the 1970s and 1980s, or even subsequent ones such as Barings in the 1990s, there has been no independent forensic investigation and key documents continue to be suppressed to this day.

On 19 July 1991, the Government appointed Lord Justice Bingham to examine some aspects of the Bank of England’s supervision of BCCI. The Prime Minister John Major told Parliament:

“The conclusions of the inquiry will be made public.”—[Official Report, Commons, 22/7/1991; col. 755.]


The Bingham report was published on 22 October 1992 and was highly critical of the Bank of England’s failures. However, it was published without the supporting appendices containing extracts from a document codenamed the “Sandstorm report”, which provided information about some of the frauds and named some of the parties involved in them.

Meanwhile, the US Senate Foreign Affairs Committee investigated BCCI frauds and, in December 1992, published a report titled The BCCI Affair, which said that

“BCCI’s British auditors, Abu Dhabi owners, and British regulators, had now become BCCI’s partners, not in crime, but in cover-up.”

The US Senate committee secured a censored version of the Sandstorm report from the Federal Reserve, which had obtained it from the Bank of England. The committee also secured an uncensored version and said that it

“revealed criminality on an even wider scale than that set forth in the censored version.”

The committee also had access to CIA files on BCCI, which have been made public. Despite this, the Sandstorm report remains suppressed in the UK.

16:00

Some time later, a US academic and I began research into some puzzling aspects of the BCCI episode. My co-author visited the US Congress Library and found the censored version of the Sandstorm report. On 3 January 2006, I used freedom of information legislation to request a full copy of the Sandstorm report. The Treasury refused, and the Information Commissioner agreed with the Treasury. To cut a long story short, I pursued the matter. Five and a half years later, on 11 July 2011, three judges in the case of Professor Prem Sikka v Information Commissioner and HM Treasury unanimously ordered the Treasury to release the full version of the Sandstorm report to me. The judges said:

“In our view there is considerable public interest in the public seeing the whole of the Sandstorm Report so that it can be seen, not just what happened, but what role was played by the governments, institutions and individuals who were involved with an organisation guilty of what the authors of the Sandstorm Report … described as ‘an enormous and complex web of fictitious transactions in what is probably one of the most complex deceptions in banking history’”.

At paragraph 42 of the judgment, the judges rebuked the Treasury for shielding the identity of

“the architects of a group-wide programme of fraud and concealment”.

By comparing the version of the Sandstorm report given to me by the Government with the censored version found in the US Library of Congress, one can get some idea of the parties being protected by the UK Government and regulators. These include individuals thought to be linked to al-Qaeda, Saudi intelligence, the royal families of Abu Dhabi and other countries in the Middle East, as well as arms dealers, smugglers, fraudsters, convicted criminals, BCCI senior personnel and politicians. The Government even fought to shield the identity of some criminals who had died in the intervening years. Words such as “Grand Cayman”, “Bahrain”, “Turks and Caicos”, “North American Finance and Investment”, “Arab Livestock Company”, “Saudi National Commerce Bank” and “Royal Bank of Scotland” had also been concealed by the UK Government.

Since the 2011 court judgment, there have been a number of requests in Parliament to place the Sandstorm report in the parliamentary Libraries. The Government have refused. I asked a Written Question and on 2 November 2020 the Government replied:

“There are currently no plans to publish an unredacted version of the report by Lord Justice Bingham into the Supervision of the Bank of Credit and Commerce International.”

So, after nearly 30 years the Sandstorm report is sitting in nearly 1,300 US libraries but it is still a state secret here. Governments have gone to considerable lengths to protect the wrongdoers.

I have cited examples of ministerial interventions from different time periods to show that a culture of cover-up is deeply institutionalised. Ministerial cover-ups have only emboldened banks. Last September, we learned of the FinCEN files, which showed that HSBC allowed fraudsters to transfer millions of dollars around the world even after it had learned of their scams. In relation to the ongoing saga of the RBS and HBOS frauds, the Thames Valley police and crime commissioner publicly stated:

“I am convinced the cover-up goes right up to Cabinet level.”

Some no doubt will remind me that we have the best regulation in the world—but best for whom? There is a huge difference between regulation on the books and regulation in practice. A commonsensical understanding is that financial regulatory mechanisms exist to protect the interests of investors and depositors, but that cannot be done without investigation and a purge of corrupt practices. Anything less harms people, industry markets and possibilities of democracy. By shielding wrongdoers, Governments may appease some, but what of the people’s right to know? How can Ministers and regulators be called to account when Governments and regulators protect wrongdoers? How can a good system of regulation be developed under such circumstances?

Governments claim to adhere to seven principles of public life, which include accountability, openness, honesty and integrity. In the absence of disclosures about ministerial interventions, such claims will continue to have little substance. My amendment would strengthen democracy by requiring regulators to make disclosures about ministerial interventions. I beg to move, and I hope that this Committee will support this call for transparency.

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

My Lords, as the amendment suggests, I think it is necessary to know when there have been interventions and why. I do not say that from a wish to create political opportunity to complain—in fact, rather the opposite. When matters are transparent, there is generally less to complain about and more understanding. If there is a wish to keep everything private, that in itself is a problem. The amendment does not ask for chapter and verse on everything, just the nature of the intervention.

I recall the instances of HSBC and Standard Chartered. I was aware of them at the time, not from any information from the Government but because the size of US fines and the impact that it had on European banks were spoken about in Brussels. It is fair to say that there were concerns from other European countries. I do not think that the UK was the first to write. The financial stability point on fines for things that we also thought were pretty shocking was openly discussed in Brussels, including in my committee. Indeed, I recall having conversations around financial stability implications with the president of the ECB and with the Fed and US Treasury, although I do not think that one needs to advise people like Ben Bernanke about the relative sizes of UK banks and the UK economy and the problems that that will create; you would get pretty short shrift in return.

It is actually quite humiliating either to make or know about such interventions or to sit there while people say to you, “I’ve had a letter from your Minister.” I certainly felt humiliated about the need for such information by my country and humiliated by the behaviour of important financial institutions from my country. A normal response would be to try to make sure that it does not happen again, and I fear that progress has not been as good as it should have been. Maybe one reason for that, I now realise, was that there was no such discussion about these occurrences in the UK in the same way as there was in Brussels, which I find quite shocking. But too big to fail should not mean too big to jail. We have been around that debate already, in the sense of needing fairly to prevent offences, the construction of large companies, which create organised irresponsibility, and the FCA failing us at a critical moment in the SMCR, so it has been undermined.

To get back to the point about disclosure—yes, it should be shared, and any humiliation should be shared, so that those responsible at the time get more heat and there is greater resolve to make corrections. Everything is all so much more diluted and dismissible when it is looked at only as history.

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

My Lords, I thank the noble Lord, Lord Sikka, for tabling the amendment, to which I was delighted to attach my name. It is a great pleasure to follow the noble Baroness, Lady Bowles of Berkhamsted, and I welcome her support.

I do not think I need to add to the noble Lord’s detailed, forensic presentation of the clear, obvious and systemic problem: that Ministers intervene to end or direct investigations into fraud, corruption and malpractice. As he clearly documented, they do that on what appears to be a semi-regular basis. This amendment seeks to stop that, or at least make it illegal. Noble Lords might argue that it should not be; I certainly look forward to examining any contributions that seek to do that.

We have an institutional culture of cover-up, as the noble Lord said. We cannot be sure that every case has been exposed—indeed, it would be very surprising if they had been—despite the often extraordinary efforts of investigative journalists and academics such as the noble Lord. We are most likely seeing the tip of an iceberg. That what has been done emerges only later, dragged into the light of day despite considerable resistance, is of considerable detriment to public and international trust in both the financial sector and the British Government, as the noble Baroness, Lady Bowles, just highlighted.

The most useful contribution that I can make to this debate is to the politics and the sociology—and I mean politics with a small “p” for, as the noble Lord demonstrated, this behaviour is not contained to Governments of any particular political hue. He said that ministerial cover­ups had emboldened banks. Behaviour that tolerates, supports and enables dishonest and corrupt practices encourages the spread of those practices. If there are indeed only a few rotten apples, which I am sure many from the financial sector will claim, the rot will spread if they remain in the barrel. Those people will still be in place in institutions—in many cases, in very senior places within those institutions —and be sharing, passing down and directing others to continue their practices, approaches and morals. I have an agricultural sciences degree; I can promise you that the rot will spread through the barrel.

We are now without the protective umbrella of EU regulation and what was once seen as a force independent of one particular financial centre that enforced some degree of cleanliness among all of them—albeit that the UK had an inordinate, often baleful influence on attempts to tighten regulation and prevent fraud and corruption. With the UK making its own rules, the behaviour of both the UK Government and the UK financial sector will come under greater scrutiny.

The EU is—not coincidentally after the UK’s departure—looking in the coming years to significantly tighten regulations on tackling fraud and corruption, on stopping tax dodging, on preventing greenwashing and on reining in the inordinate economic power of the internet giants. What happens in the UK will be weighed against that, which is why tightening up this Bill with this measure and others is crucial. What we need is not a more “competitive” financial sector but an upgraded one, one that is honest, straightforward and trustworthy.

There is also the politics in the broadest sense: the issue of how the Government are regarded, which is a long-running, serious issue for the UK. The place of politicians at the bottom of trustworthiness rankings is a source of jokes and bitterness but a serious and significant problem for our body politic. It has to be tackled. This amendment, a legal commitment to honesty and transparency, would be a significant step.

We are seen, from many sides of politics, to have a Government of the few, a Government for the money, a Government for the City of London, to the detriment of the country. This has to change if we are as a country to go forward.

I shall finish with a quote. The

“trend toward globalized corruption has been enabled in crucial part by regulatory asymmetries among key international economic actors and a lack of resources and political will in law enforcement.”

That comes not from the Tax Justice Network or Transparency International. It comes from a foreword to a report from the Center for American Progress entitled Turning the Tide on Dirty Money, signed by Senator Robert Menendez, chairman of the US Senate Foreign Relations Committee, Tom Tugendhat MP, chairman of the UK Foreign Affairs Committee and David McAllister MEP, chairman of the EU Parliamentary Committee on Foreign Affairs. The authors say that corruption

“threatens the resilience and cohesion of democratic governments around the globe and undermines the relationship between the state and its citizens.”

16:15

That is not a source I am likely to be quoting often, but it reflects a growing global understanding across the political spectrum—a fact that the noble Lords who in this Committee keep assuring us that everything is fine, clean, transparent and honest in the financial sector might like to reflect on. It reflects what a few of us in this Committee—the noble Lord, Lord Sikka, the noble Baroness, Lady Bowles, the noble Lord, Lord Davies of Brixton, the right reverend Prelate the Bishop of St Albans, and occasional other contributors—have been saying: an upgraded financial sector with tighter controls and stronger enforcement are crucial to the security of all our futures.

The amendment would be a modest but important step forward. I do not necessarily expect acceptance from the Government today—although one can always live in hope—but I hope that they will at least go away and think seriously about this and other upgrading measures proposed in this Committee.

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

I call the next speaker, the Lord Bishop of St Albans, but I cannot hear anything. I wonder whether he might be on mute.

[The Lord Bishop of St Albans [V]]

My Lords, I apologise; I am so sorry.

I am glad to speak in support of Amendment 107 in the names of the noble Lord, Lord Sikka, and the noble Baroness, Lady Bennett of Manor Castle. Throughout the course of this debate, there have been a number of comments on the current functioning of the FCA, the scope of its remit and whether it is properly undertaking its duties.

As the noble Lord, Lord Sikka, pointed out, there have been occasions when financial misconduct has not been fully disclosed, and it is worrying that this may have been due to interventions from those within government. As we establish our new position in the world following Brexit and seek to build on our financial services sector, it is vital that we are known for our honesty and transparency throughout the world. Our future will depend on this. So surely the amendment is entirely uncontroversial. The FCA is meant to be an independent regulator, not a direct arm of the Government. Hence, if Ministers have sought to intervene in any sort of FCA work or investigation, it should be a matter of transparency and disclosed.

Recently, the FCA dropped its investigation into Lookers, arguing it had instead made its concerns clear relating to the

“historic culture, systems and controls”

of the group. Why the investigation was not carried out to the full remains unclear—certainly to me, despite trying to find out. I imagine that many, including me, find the FCA’s answer unsatisfactory. It does not give us the assurances that we would hope an independent regulator would give.

Some commentators have noted that the dropping of this investigation seemed to coincide rather conveniently with the FCA’s new rules relating to car finance, brought in at the end of January 2021. Yet even these changes fell short of a mis-sell, which would undoubtedly have cost the providers of finance billions—strongly hinted at by the FCA’s 2019 report into car finance.

How the FCA came to its decision was in-house, even if it was sometimes perplexing to those of us outside. Nevertheless, in this instance, for example—and in many others—what we do not know is whether there has been any direct ministerial intervention to steer the FCA into any specific course of action. Many people would like reassurances that any intervention should be made in the interests of all and for the common good, particularly in customers’ best interests.

The amendment, in shining a light on what happens behind the FCA’s closed doors, would be a valuable addition to the Financial Services Bill. It would help in a mission that I know many in this House share to create a more transparent, robust and, dare I even say, moral financial system that in the long run will benefit all of us. I hope that the Government will look closely at either the amendment or something similar as we return to the matter later during the passage of the Bill through your Lordships’ House.

[Baroness Kramer (LD)]

My Lords, I need to spend more time, frankly, trying to understand the amendment. I would be genuinely shocked if Ministers interfered with an investigation of any of the regulators—certainly the FCA, the body at the centre of the amendment. I am not sufficiently familiar, I confess, with the Ministerial Code, but if the code does not make that clear, it would seem absolutely necessary that it does.

I perfectly understand concerns about the effectiveness of the FCA as a regulator in dealing with wrongful behaviour. It needs to be much more aggressive and transparent. We have talked earlier in Grand Committee about the HBOS Reading fraud scandal. The FCA was finally pressured into commissioning a report from Promontory, then did not publish it—only a summary that did not reflect in any significant way the actual conclusions of the report. That was extremely disturbing. We have also talked about the FCA’s actions under the senior managers and certification regime against Jes Staley, chief executive of Barclays—

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

My Lords, there is a Division, so we shall adjourn for five minutes and reconvene thereafter.

16:22

Sitting suspended for a Division in the House.

16:28

[Baroness Kramer (LD)]

I was in the middle of saying that we need the FCA to be much more aggressive and transparent in its pursuit of wrongdoing within the financial services industry. I gave the example of what I considered to be real weakness in the way that it handled the HBOS Reading fraud and in its treatment of Jes Staley, chief executive of Barclays. As we discussed earlier, he was fined by the PRA and FCA, under the senior managers and certification regime, something in excess of £600,000 for, among other things, hiring private detectives to try to hunt down the identity of an internal whistleblower.

I note that it was the US authorities—one of the New York regulators, I think—that fined Barclays $15 million for the same behaviour, not the UK authorities. Some Members of your Lordships’ House may be aware that the US regulators visit the UK—I have certainly met with the CFTC when they have been doing this—in order to get the message over to bankers here that, if they come across any wrongdoing that potentially has an impact on the United States, as well as informing the UK regulators they should also make immediate contact with US regulators, who start from a position that they will be far more aggressive in hunting down wrongdoing.

I am afraid that the reputation of the UK for hunting down wrongdoers is not good. I wish we did not see ourselves in that position. That is one of the reasons why I am hopeful for an office of the whistle- blower. If there is any suspicion that a Minister had intervened inappropriately, it is through a whistleblower that that information would be exposed. We need an absolute safe haven for such a whistleblower to make contact, in order for that exposure to happen. Again, I look forward to hearing from the Minister how the Ministerial Code impacts on a situation such as this. If it does not, or is ineffective, the answer seems to me to be: strengthen the Ministerial Code.

[Lord Eatwell (Lab)]

My Lords, my noble friend Lord Sikka has made a powerful case for greater transparency in regulatory matters. I think it is clear to everybody that nothing undermines confidence in the regulatory system so much as the sort of cases to which my noble friend referred. What is often evident is that these matters eventually come out, and so the traditional rule that the cover-up is worse than the original transgression exerts itself once again.

The Government have made a virtue of transparency and openness in several aspects of the regulatory system. Not least, for example, we have discussed in this Committee the case of beneficial ownership, and we heard the noble Baroness, Lady Penn, make the argument for transparency of the beneficial ownership record of Companies House as a great virtue at an earlier stage of our considerations. Surely that commitment to transparency should be quite general, covering all regulatory matters, and not limited just to selected parts of the regulatory system.

[Earl Howe (Con)]

My Lords, Amendment 107 would require the FCA to make a public statement on the nature of any intervention a Minister may make into an FCA investigation into an individual firm.

The current legislative framework established the FCA as an independent, non-governmental body responsible for regulating and supervising the financial services industry. I listened with great care to the noble Lord, Lord Sikka but, with respect to him, and without belittling the value of lessons from history, the examples of investigations that he cited are ones that are unrelated to investigations carried out by the Financial Conduct Authority. That is a key point because, although the Treasury sets the legal framework for the regulation of financial services, it has strictly limited powers in relation to the FCA.

The Treasury is the FCA’s sponsor in government but, in view of the regulator’s independence, it is not appropriate for the Treasury or Ministers to seek to intervene in individual cases. In particular, the Treasury has no general power of direction over the FCA. I will write to the noble Baroness, Lady Kramer, on the content of the Ministerial Code, but I am not aware of any loopholes in the code that would permit the kind of conduct that has been talked about.

We are talking here about an independent organisation. The independence of the FCA is vital to its role. Its credibility, authority and value to consumers would be undermined if it were possible for the Government to intervene in its decision-making. I realise that the noble Baroness, Lady Bennett, has some mistrust of Government Ministers, but I hope that that fact is of at least some reassurance to her.

That is not to say that the FCA is not accountable for its actions when investigating potential wrongdoing or malpractice by firms because, equally, the noble Baroness, Lady Bennett, should be reassured that the FCA is governed by the framework of duties set out in legislation by Parliament. It would be unlawful for it to act outside this framework in order to further vested interests. The decisions of the FCA can be subject to judicial review and, under legislation, the FCA must maintain arrangements for the investigation of complaints.

In the event of a significant failure to secure an appropriate degree of protection for consumers, where those events might not have occurred but for a serious failure in the regulatory system, Section 73 of the Financial Services Act 2012 imposes a duty on the FCA to investigate. Situations can arise in which the Government determine that it is appropriate to intervene. In such situations, the relevant legislation—Section 77 of FSMA —provides a mechanism for the Treasury to direct the FCA to conduct an investigation where it suspects that there may have been regulatory failure.

Under Section 77, the Treasury can require the regulators to conduct an investigation into relevant events where the Treasury considers there to be a public interest. In addition, Section 77 investigations can consider aspects outside the regulatory system as established by FSMA, allowing a comprehensive review to be undertaken in the public interest. However, it is important to note that a Minister cannot use a Section 77 direction to do anything else at all, or to stop the FCA doing anything else.

The most recent example of Section 77 in action was in relation to the regulation of London Capital & Finance, when the Economic Secretary to the Treasury laid a direction before Parliament on 23 May 2019, and formally directed the FCA to launch an independent investigation. The direction was public and transparent, as we would always expect to be the case. The report was laid before Parliament on 17 December 2020.

I hope that this has clarified the legal underpinning of the FCA’s independence, and the very limited powers that Ministers and the Treasury have in this area. I hope that what I have said has reassured the noble Lord that appropriate legislation is in place, and that he is content to withdraw his amendment.

[Lord Sikka (Lab) [V]]

I am grateful to all noble Lords for their contributions, but somewhat disappointed by the Minister’s response. The examples I gave—if I had time, I could add another dozen—all inevitably relate to the past, when, despite government efforts, things have come to public attention. At no point have Ministers ever volunteered information or made statements that they have stymied investigations.

In the parliamentary debate on the Banking Act 1987, which formally made the Bank of England the supervisor of banks, Ministers claimed that the Bank would be an independent regulator. Then we discovered that there was a whole process of cover-up—the BCCI case, for example. When the Bank of England ceased to be an independent regulator, the next one, the Financial Services Authority, came in. Again, it was claimed that that was independent. Well, under ministerial pressure, it did not intervene. It did not investigate HSBC’s misdemeanours in the UK, and indeed it was a party to cover-up in the US. The US House of Representatives committee report contains some correspondence showing how the Bank of England, the FSA and the Chancellor were pressuring the officials there to go easy on HSBC. The idea that somehow the FCA is some brand new version of independence which we ought to believe simply neglects what has happened in the past, and that is not really very helpful. Of course, Ministers can allay all public fears by simply saying, “Yes, we will embrace independence.” What is wrong with that?

I have visited the US on many occasions. I have met many academics, regulators and businesspeople, and I always ask them two questions when I deliver a seminar or after a meeting. The first question I ask is, “If you could commit financial crime, where would you like to commit it?” The response is always, “The US, because there is a lot of money to be made.” The next question I ask is, “If you are caught, where would you like to be prosecuted?” At that point, laughter sets in and they all say, “The UK.” Indeed, this country has become kind of a standing joke in regulatory circles. If I were referring to any other country and explaining how Ministers and regulators have colluded to protect organisations which, by their own admission, engage in criminal conduct, many Members of the House would say, “Well, that country is corrupt” or “It is a banana republic”. But I find it surprising that the ministerial response is basically “Well, we are good, and we don’t really need to take account of any of these events.” That is really the tip of a corrosive iceberg, because this corruption goes very deep.

I have asked Ministers a number of times to comment on the public statement of Anthony Stansfeld—the Thames Valley police and crime commissioner—that there is a “cover-up” at Cabinet level of the HBOS and RBS frauds. It is interesting that no Minister has denied it, and no Minister has confirmed it. I have quoted a statement from a very senior law enforcement officer—what could be a greater indictment of the UK’s regulation?

Finally, could the Minister please tell us why the Sandstorm report, which is sitting in 1,300 US libraries, is still a state secret in this country after 30 years? I do not know if it is appropriate for him to reply but I would not be opposed to that.

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

Does the Minister wish to respond?

[Earl Howe (Con)]

My Lords, the noble Lord has the advantage over me, because I am not personally privy to the case history that he cited, which is now 30 years or so old. However, I will consult my officials and write to him with an answer to his question.

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

Can I confirm with the noble Lord, Lord Sikka, that he does not wish to press his amendment?

[Lord Sikka (Lab) [V]]

I will withdraw the amendment for the time being.

Amendment 107 withdrawn.

Amendment 108

Moved by

[Lord Hodgson of Astley Abbotts]

108: After Clause 40, insert the following new Clause—
“Duty to take account of impacts on sustainable good work
(1) When undertaking duties and using powers under the Financial Services and Markets Act 2000, the FCA must take into account—(a) the impacts or potential impacts on sustainable good work in the United Kingdom as a consequence of the provision of financial services with particular regard to the evaluation of—(i) net gains in total employment;(ii) quality of work available;(iii) terms and conditions of work available;(iv) opportunities for training and reskilling;(b) the desirability of providing financial services and investment supporting the creation of sustainable good work across the United Kingdom; and(c) the desirability of advancing the international reputation of the United Kingdom for promoting inclusive and sustainable economic growth and decent work for all pursuant to the United Nationals Sustainable Development Goals.(2) The FCA must publish guidance to organisations providing financial services about fulfilment of the requirements specified in subsection (1)(a)(i) to (iv).(3) In this Act, “good work” means work which provides and promotes—(a) fair pay;(b) fair conditions;(c) equality and freedom from discrimination;(d) dignity;(e) autonomy of workers;(f) physical and mental wellbeing; (g) access to institutions and people who can represent workers’ interests;(h) participation of workers in determining and improving working conditions;(i) access to facilities for career guidance and training.”

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

My Lords, I move Amendment 108 and speak to Amendments 109, 110 and 122, which, collectively, take us into a fresh policy area. I thank the noble Lord, Lord Knight of Weymouth, and the noble Baroness, Lady Bowles of Berkhamsted, for their support. Support is always welcome and cross-party support is doubly so when, as I say, we enter a new policy area.

I draw the attention of the Committee to my entry in the register of interests, which shows that I am the chairman of the Founder Circle of the Institute for the Future of Work. It is the research that I have seen undertaken by the IFOW that provides much of the background to and reasons for my tabling these amendments.

It is widely argued that there is a high and perhaps growing level of dissatisfaction with how our system of government operates—or perhaps some would say how it fails to deliver a fair distribution of economic and other advances. The result has been a series of what one might call “uprisings” against what is seen by many as the conventional establishment view; the Brexit vote in the UK and the election of President Trump in the US are but two examples. Although both those events are behind us, there will surely be aftershocks that will shape our society over the next decade or so.

16:45

Members of your Lordships’ House and this Committee will all have their individual views on the relative importance of the different causes of this general dissatisfaction, but it is becoming clear that the nature of modern employment, too often disembodied and with employees treated primarily as factors of production, is an important factor. The Government have rightly emphasised their success in job creation and are to be congratulated on their efforts, but it is important at the same time to remember that the definition of employment by the Office for National Statistics is one hour or more of paid employment a week—just one hour. So if you are a young person on a zero-hours contract or a member of a minority community locked into a low-pay, low-prospect job, or if you are aged over 50 and finding it difficult to get any job at all, it is perhaps not surprising that you do not have unbridled enthusiasm for the present system.

In addition, many argue that the world stands at an important juncture. It is not just a question of what permanent changes to our working lives will have been caused by the pandemic; it is, no less importantly, about the impact on employment of the fourth industrial revolution, artificial intelligence and robotics, leading to the phenomenal increase in computing power that brings previously unbelievable developments, such as driverless cars, within reach.

Industrial psychologists tell us that people go to work for three broad reasons. The first is money, and we should not be precious about that—but it is not just about money, although, disappointingly, many appear to think that that is all that matters. Indeed, the debate in the House of Commons in Committee on this Bill, at column 163 on 24 November last year, focused essentially only on this one aspect. But a second important strand is what is known as self-actualisation: “Am I in a job that enables me to develop to my full potential? Do I have access to career development and opportunities for training?” That theme is about “me” as a person. The third reason why we go to work is about “we”: “Do I work in a pleasant atmosphere with fellow human beings to whom I relate? Am I proud of where I work? Does the job I do perform a useful service for our society?” It is to move the discussion on from the important but too often narrow and rather predictable debate about remuneration levels to discuss the “me” and “we” factors of employment that I have tabled these amendments.

The pandemic has sharply reminded us of the value and impact of work on society—that many of the people in our society with the highest levels of insecurity, often suffering poor pay and with poor-quality work, are those most responsible for its functioning. They have kept society and the economy going during the pandemic. The pandemic has also reminded us of the role of companies as social institutions. Government support has changed the pact between corporation and society, which may call for a higher level of responsibility and scrutiny. Research, including The Good Work Monitor report from the Institute for the Future of Work, has made it clear that the availability of good work is an important determinant of health and social outcomes; it is even a determinant of diseases, depression and suicide. Further, good work builds resilience, prosperity and personal well-being.

Some Members of the Committee may be asking why these amendments, worthy though they may be in themselves, should form part of a Financial Services Bill. Where good work is not made available, it places an increased strain on government finances. The externalities of bad work include higher social security payments, a greater burden on the NHS, restrictions on social mobility, and the perpetuation of inequalities. The financial services sector is a strategically important part of the UK economy, responsible for the employment of up to 2.2 million people. It will, therefore, play a critical role in financing the country’s recovery from the Covid crisis.

As my noble friend the Minister has repeatedly reminded us, this Bill is the first part of a wholesale rethink of financial regulation, and an opportunity for the Government to employ strategic regulation to steer the sector towards greater consideration of the importance of good work. If regulators are required to consider good work, those offering financial services will also need to, and ultimately there will be a trickle-down effect to society as a whole. Put simply, it is in every investor’s interest to ensure that we address any underlying dissatisfactions about modern employment, since failure to do so will result in a society increasingly at unease with itself, with all the consequent impacts on economic performance, and so on our prosperity.

Broadly speaking, there are currently few legal instruments for encouraging or protecting good work through the investment process, beyond the provisions about the minimum wage and modern slavery. So, just as Mark Carney has suggested that the most effective way to tackle the challenges of climate change is through the investment process, I argue that the same is true of the creation of good work. By anchoring good work principles in our financial regulatory structure, the country has the opportunity, with our post-Brexit freedoms, to become a world leader in a policy area that will surely assume ever-increasing importance in the years ahead.

I turn briefly to my four amendments. Amendment 108 has three purposes: first to require the FCA to take into account the impact of sustainable work as a consequence of the provision of financial services, and to do so by reference not only to gains in employment but to the quality and conditions of the work, as well as opportunities for reskilling and retraining. Secondly, it requires the FCA to do this in a way that builds the international reputation of the UK for encouraging economic growth in line with the United Nations sustainable development goals. Thirdly, the FCA should provide guidance to the financial sector on how to fulfil these requirements.

Amendment 109 imposes a duty on regulated organisations to explain how they have complied with the guidance issued by the FCA, and to do so within 12 months of such guidance being published. Amendment 110 proposes that there should be a member of the governing body of the FCA with responsibility for promoting good work. Without such an appointment, there must be a danger that this policy area will be overlooked. Finally, Amendment 122 requires the regulator to take into account the impact of employee share schemes. This aspect is of a piece with the plan to foster good work generally. Indeed, the FCA’s chief executive himself has endorsed research which shows the link between share schemes and the fostering of a sense of ownership and involvement.

To conclude, this will be a long journey, but one which we need to set out on without delay, and all those who believe that our present system, for all its inadequacies and imperfections, provides the best hope for our society as a whole, should be joining in. I beg to move.

[Lord Knight of Weymouth (Lab) [V]]

My Lords, I am happy to put my name to and support Amendments 108 to 110. I pay tribute to the noble Lord, Lord Hodgson, for introducing the amendments.

From President Biden, to the OECD, to the UK Government, everyone around the world wants to “build back better”. The amendment is squarely in that vein. As we all start to see a path out of this pandemic, the economic consequences loom ever larger. The same people most likely to have lost their lives due to Covid are now losing their livelihoods. In this country, our challenge of rebuilding also must address our new life outside the European Union. We must account for the threats and opportunities of new trading arrangements and a new regulatory environment, and the Bill is a part of that. I see opportunities here to move to more intelligent regulation of the financial sector as we move into this new reality.

The financial sector is a strategically important part of the UK economy, as the Committee knows, employing up to 2.2 million people. The sector will play a critical role in financing the country’s recovery from the Covid-19 crisis. There is therefore an opportunity for the Government to deploy strategic regulation to steer the sector towards a greater consideration of the importance of good work.

As has been said, these amendments would ensure that financial regulators understand and give due weight to the importance of creating sustainable good work across the United Kingdom. The amendments have been designed to build on the great work of the Institute for the Future of Work, which was established following the Future of Work Commission, of which I was a member. We found that good work builds resilience, prosperity and well-being. I commend the institute’s Good Work Charter and Good Work Monitor to the Committee; as the noble Lord, Lord Hodgson, said, it found that the availability of good work is an important determinant of health and social outcomes. This is reinforced by the findings of the Carnegie Trust. Conversely, when good work is not available it places a strain on government finances through the higher cost of health and welfare services, and depleted tax revenues.

On Budget day last week, those of us on the National Plan for Sport and Recreation Committee, whose meeting I am missing at the moment and to which I send my apologies, were lucky enough to hear from the Deputy Prime Minister of New Zealand, Grant Robertson. He is currently the Finance Minister and the Sports and Recreation Minister for his country. I was struck by what he said when he launched New Zealand’s first “well-being Budget” in 2019:

“In the election that led to the formation of this Government, New Zealanders were asking a core question: If we have declared success because we have a relatively high rate of GDP growth, why are the things that we value going backwards like child wellbeing, a warm, dry home for all, mental health services or rivers and lakes that we can swim in?”


He went on to say that the Treasury should be responsible for,

“measuring and focussing on what New Zealanders value—the health of our people and our environment, the strengths of our communities and the prosperity of our nation.”

I argue to the Committee that we need a similar mindset shift. We need to start by accepting that not all that we value can be measured by EBITDA, a balance sheet or shareholder value. Then we need to think about what we value and how to incentivise and regulate for that.

I have worked in the public, voluntary and private sectors. I run my own business, have started co-ops and charities, and worked at chief officer level for private equity-owned businesses. My current commercial clients include a US B corp, and one heavily financed by US venture capital. In my range of work, I too often see an increasing values imbalance the more that the enterprise is engaged with financial services businesses. Good business balances shareholder value with customer value, staff value and societal value. Too often, values are sacrificed for shareholder value. If one thinks only of the value of financial services in financial measures such as share price, one is missing the rounded value of the sector. This is like thinking that all the value of a school is in test scores, or all the value of a job candidate is in their qualifications. A growing number of investors do not see business in that way. Between 2016 and 2018, the proportion of UK investors integrating environmental, social and governance guidelines into their investment decisions grew by 76%. Up to $2 trillion of UK assets are now managed according to those ESG principles.

17:00

These amendments are clearly not anti-business or anti-growth; they go with the grain of where business is going. They are also with the grain of new approaches to government regulation. Traditionally, we have regulated to prevent bad practice by a minority—that might be in relation to the minimum wage, fraud or some environmental protections. These are hard-won in this House. I campaigned for years to give parents the right to bereavement leave if one of their children died. I was delighted we finally got there last year with Jack’s law.

However, this traditional approach to regulation is rigid, as the real world is moving and changing at a pace that legislation cannot keep up with. That is why the Government are now proposing in their online harms policy a “duty of care” to be imposed on technology companies. This flexible approach is to be applauded and is echoed in these amendments. This approach of going beyond minimum standards also allows us to calibrate what the good, positive criteria for the “S” look like in ESG investment—ESG standing for environmental, social and governance. So far, ESG matrices have been focused on the “E” and the “G”; the pandemic points to the “S”, to the social, and the dimensions of good work should help find materiality around that. It could also offer bite and focus in the basis for standardised reporting, addressing some criticisms increasingly pitched at that ESG investment.

I therefore commend these amendments. They are good for business and good for people, and they reflect the postcode realities that the job of building back better should not rely exclusively on government action. Good work builds prosperity, resilience and well-being, and it is one of the best and most effective ways to align human, social, economic and environmental interests. It should be embedded into the post-Budget recovery plan’s vision and the very architecture of decision-making across government and the regulators. Businesses want to play their part, and these amendments will help to move things in the right direction. I hope that the Minister will give them proper consideration between now and Report.

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

My Lords, I have signed these amendments from the noble Lord, Lord Hodgson, and I agree with what he and the noble Lord, Lord Knight, have said. I am aware that the noble Lord, Lord Hodgson, has a long record of engagement in these matters, because from time to time I discover that I am following in his footsteps. The “good work” amendments recognise that we need structural changes in how companies operate to ensure that they provide good work in the face of technological and societal changes. With the financial services sector both supporting all businesses and being our largest industry, it has a special, strategic leadership role to play, and ways that this can be brought about are contained in Amendments 108, 109 and 110. This would be in line with the principles of Section 3B(1)(c) of FSMA, which states that there is role for ensuring

“the desirability of sustainable growth in the economy of the United Kingdom in the medium or long term”.

In my book, sustainable growth must encompass technological and societal changes as well as the environment, but I fear there is a long way to go to live up to that.

In the interests of time, I shall concentrate on Amendment 122. There has been all-party support for employee share ownership in all its forms for a long time. Such schemes provide rewards and motivations in ways that wages cannot. At its best, an employee share plan will also give employees a say in how a business is run and can help to achieve many of the aims of the Good Work Charter, such as dignity, fair rewards, participation and learning.

Employee share ownership and employee ownership have many positive effects, and I want to highlight research on how well employee-owned companies deal with financial adversity.

Research published by the Cass Business School after the 2008 financial crisis established that employee-owned companies create jobs faster than non-employee-owned counterparts and withstood the recession better as it deepened. They recruited when non-employee-owned companies were laying off staff, and had motivation where others found it hard to motivate staff.

More recently, I chaired an inquiry into the effects of employee ownership and the report, entitled Ownership Dividend, found evidence that showed that employee-owned businesses performed better, were more resilient and more rooted in local economies—hence why the term “ownership dividend” was coined. Therefore, as has been said, such companies have a strong part to play in the UK’s plans to build back better and restart the economy.

Amendment 122 suggests an emphasis on analysing impact of sustainable growth provided by employees share schemes. As I mentioned previously, it should already be covered in the principles, but the urgency around “sustainable” in all its forms does not seem to be present. Therefore, I commend Amendment 122, as well as the good work amendment.

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

My Lords, I will speak briefly to Amendments 108, 109 and 110 in the names of the noble Lords, Lord Hodgson Ashley Abbotts and Lord Knight of Weymouth. I broadly agree with everything they said.

The noble Lord, Lord Hodgson, in his introduction, referred to the level of dissatisfaction in our society: the threats from poverty, inequality and insecurity. I would say that these amendments are digging here into some of the depth of the problems that I referred to in my speech on a previous group and seek to provide some remedies. As he was speaking, I thought of meeting an USDAW representative in Sheffield referring to one of her members who had just come to her to seek a voucher for a food bank. The member was not, as you would expect as an USDAW member, unemployed; in fact, that member had seven jobs, but they were all zero-hours contract jobs and that particular week they had not delivered enough money for that person to feed themselves and their family.

However, it is important that we do not just focus—the noble Lord, Lord Hodgson, did not—on those who are in desperate poverty and inequality, as awful as that is. As he was speaking, I could not help but think of what the late, great David Graeber called—here I may be about to use what is unparliamentary language here, but it is a direct quote—“bullshit jobs”. The noble Lord referred to people’s desire to get meaning, to feel that what they are doing, how they are using their time and talents, is worthwhile and contributing to society. Indeed, a failure to acknowledge and understand that—a focus purely on the pounds, shillings and pence—is at the root of a lot of our problems: the financialisation, to which the noble Lord, Lord Knight, referred, of our entire economy—not just the financial parts but the real economy, the care economy, the public service economy.

The noble Lord, Lord Knight, referred to managing things in a different way. I point again to New Zealand’s living standards framework, that guides its Treasury—based on a system not that dissimilar to our own—where they judge the quality of work, people’s security, the quality of the environment and the economy all together and seek to manage them to a stable, secure, decent whole.

These are important amendments and crucial principles, so I wanted to speak briefly in favour of them.

[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. I shall speak particularly to Amendment 122. It is evident that employee share ownership is a positive force within our economy, and speaks so much to the current Covid environment and what kind of economic sector, work and business basis we can have to our economy as we built out of Covid.

It is no surprise that Sir Nicholas Goodisson, after taking the London Stock Exchange through the big bang and seeing some of the early privatisations, then moved on to a role heading up the Wider Share Ownership Council. He saw the benefits and the positive impact that it had for people to have a stake in something, and there could be no better example of that than employees having a stake—a share—in the company for which they work on a daily basis.

I believe we will see more innovative models of employee ownership coming through. The EOT, for example, is still very much in its embryonic phase but it is a very positive concept and construct. There will be further developments in this area and I believe Amendment 122 sets out the case very well that when employees have a share, a stake and a say in the business for which they work, it benefits all concerned.

[Baroness Kramer (LD)]

My Lords, first, I have to correct an error I made in the last group of amendments. I referred to the HBOS Reading scandal when I was talking about the Promontory report, and of course I should have been talking about the RBS GRG scandal; I am afraid I got my scandals wrong. My apologies for that—there really are too many to choose from. I hope that one day I find there are no choices; that would be a very good situation to be in.

I find this group of amendments wonderfully refreshing and a very important change of direction. Amendments 108, 109 and 110 in the name of the noble Lord, Lord Hodgson, build on the concepts that we already have in the UK Stewardship Code but take that further. In many ways, one can see a relationship with the duty of care amendments that we talked about earlier in this debate. That duty of care was focused on customers but in many ways that is now extending that perspective to employees. I find that exciting and worthwhile.

I and my colleagues in the Liberal Democrats have long talked about the need for a very different social contract between employers and the workforce. Very often that workforce may not be an official workforce in the formal sense; it may be people who are self-employed and working freelance but who in effect are working very closely with an organisation. The whole of that workforce needs a very different social contract as we go forward into a different era.

I think we both have different standards about how we treat each other and different expectations. However, we are also about to go into a period of transition to the digital age. That will be disruptive. It creates real issues for a large swathe of people and we cannot passively step back and look at a group of people just as collateral damage as we make that transition. The obligations to the workforce have become far more significant than they might have been in a fairly steady and static era when everything was expected and was not changing very significantly.

I have long been a fan of what is loosely called triple bottom line accounting—and have probably talked about it too often in this House—whereby issues such as the environment and the social impact along with the financial impact are measured when we look at both individual accounts and when we look globally at a nation’s accounts. We had earlier amendments around the issue of well-being, which are well related to all that.

I was excited to hear the example of New Zealand that the noble Lord, Lord Knight, detailed to a fairly significant degree. Nearly 20 years ago I spoke to a conference in Auckland around these issues as New Zealand was making its decision to revisit the way in which it managed its national accounts and looked at corporate accounts. I notice that very often, when we look at an English-speaking country with close ties to the UK, we find it much easier to absorb the examples and to treat them in a sense as a pilot from which we can learn. I therefore hope very much that the principles in these amendments will be enhanced.

Like the noble Lord, Lord Hodgson, and my noble friend Lady Bowles, I am a great believer in employee share schemes. There is always a downside to be aware of. If something goes wrong in a company, you want to make sure that employees have also built other pension resources, have diversification and all those kinds of opportunities. A principle that is held as very important for senior management ought to be extended down throughout the employee base. Where you have ownership, you have a voice, and having a voice is important both in empowering people in their everyday life as a workforce and in making sure that they drive the direction of the company they are working for. We all know that the old-fashioned view that all that matters is the shareholder is essentially part of the past, and I very much welcome all these amendments as part of the future.

17:15

[Lord Tunnicliffe (Lab) [V]]

My Lords, the noble Lord, Lord Hodgson, has tabled a number of interesting amendments relating to the quality of work, as well as on the topic of employee share schemes. As I am sure the Minister will mention, the latter topic is the subject of a call for evidence issued alongside last week’s Budget. However, as that exercise only covers the operation of one specific scheme, I do hope that we will hear about the Government’s wider plans to promote employee ownership and employee share ownership. With an eye to the next group, I suspect that many fintech start-ups would be interested in taking up such options to help attract the talent they need.

In studying the first three amendments in this group, I was reminded of a remark I made at Second Reading, where I praised the financial services sector for the many well-paid and relatively secure jobs it provides, not just in the City of London but across the whole of the United Kingdom. While I stand by that generalisation, I must acknowledge that, as in any other sector, exceptions do exist. For example, as tranche after tranche of local bank branches reduce their opening hours or close their doors for good, we cannot possibly pretend that the job security of those workers is as high as it was, say, two decades ago. While working practices are rapidly changing across the financial services sector, certain strands of it retain a reputation for featuring long, unsociable hours or a cut-throat working environment that many would struggle with.

The proposals put forward by the noble Lord, Lord Hodgson, are intriguing. The amendments raise several questions about access to talent and the treatment of it. As we have said on a number of occasions, we very much hope that the sector will go from strength to strength, bringing a steady stream of quality new jobs. The noble Lord is right to probe the Government on how they will create the ecosystem that makes this hope a reality. However, these considerations are not unique to financial services. As the economy recovers from Covid-19, we will want to see gains in employment across the board. If we are to build back better, as the Government claim they want to do, we will need to ensure that workers have good terms and conditions, as well as opportunities to undertake training or reskilling.

Therefore, for me the real question raised by these amendments is when we can expect to see the long-awaited employment Bill. The 2019 Conservative manifesto made a range of commitments on employment rights, and the last Queen’s Speech promised legislation to enact them. Regrettably, despite a longer than normal parliamentary Session, we have yet to see any concrete proposals. So, while the Minister may not be responsible for the forthcoming legislation, I hope that, during his response to these amendments, we will get a firm commitment that the employment Bill will appear soon.

[Earl Howe (Con)]

My Lords, I am grateful to my noble friend Lord Hodgson for directing the Committee’s attention to a set of issues that lie at the heart of the agenda for workers’ rights and social justice in the workplace. Let me begin by saying to him that the Government are committed to making the UK the best place in the world to work, and I found myself in considerable sympathy with a great deal of what he said about the connection between employee well-being, high-quality work and national prosperity.

The Government certainly have a role in furthering those ends, and I hope that my noble friend will agree that we have already made good progress in bringing forward measures that support our flexible labour market, while also ensuring the protection of workers’ rights, such as: banning the use of exclusivity clauses in zero-hours contracts; extending the right to a written statement of core terms of employment to all workers; closing a loophole whereby agency workers are employed on cheaper rates than permanent workers; introducing a right for agency workers to receive a key facts page when signing to a company; and quadrupling the maximum fine for employers who treat their workers badly.

The Government are committed to bringing forward measures to establish an employment framework that is fit for purpose and keeps pace with the needs of modern work practices, in due course. We are also committed to building back better from Covid-19. Alongside the Budget, we published our wider economic plan for significant investment in skills, infrastructure and innovation, in Build Back Better: Our Plan for Growth.

During the pandemic we have taken unprecedented action to protect jobs, most notably through the coronavirus job retention scheme—one of the most generous such schemes in the world. And from April 2021, the national living wage will increase by 2.2%, from £8.72 to £8.91, and will be extended to 23 and 24 year-olds for the first time. Taken together, these increases are likely to benefit around 2 million workers.

I fully appreciate that if we are to build back better, progress should be measured by more than just dry economic trends. However, most people would agree that a large part of human and civic well-being lies in people’s livelihoods, and I remind the Committee that in last week’s Budget the Chancellor set out his plan to protect the jobs and livelihoods of the British people.

Amendments 108, 109, and 110 would essentially require the FCA to have regard to “sustainable good work” when conducting their functions, and to embed this principle in the financial system as a whole. Financial services firms would then be required to apply the principle in all their activities, including investment decisions.

The FCA is responsible for a large number of firms and has been given three operational objectives: to protect consumers; to protect and enhance the integrity of the UK financial system; and to promote competition. So I am afraid I do not believe that the FCA is the right body for this function, given its current role, particularly as the issues go far beyond the subject of financial services.

Amendment 122 would require the FCA and the PRA to consider the impact of employee share schemes on sustainable economic growth. The Government want to support hard-working people to share in the success of the businesses for which they work. To encourage this, we offer several tax-advantaged employee share schemes. These provide a range of tax benefits to participating employees and businesses. We keep all employee share schemes under review, to ensure that they remain effective in these ways.

However, once again I do not believe that the UK’s financial services regulators are best placed to carry any changes forward. It is important that they remain focused on their core objectives. Giving them a diffuse set of objectives could undermine focus on consumer protection, financial stability and the sound functioning of financial markets. The body best placed to keep employee share schemes under review is the Government, and we see no need to impose this additional condition on the FCA and the PRA. So, while I am the first to acknowledge the importance of the matters that my noble friend has raised in this debate, I hope he will understand why I do not think it appropriate to amend the Bill in the way that he proposes.

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

My Lords, I am exceptionally grateful to everybody who has taken part in this debate, including the noble Lord, Lord Knight of Weymouth, who was the first to raise the concept of building back better, which was later picked up by everybody, including my noble friend the Minister.

I am grateful to the noble Baroness, Lady Bowles, who always brings a degree of detailed and forensic expertise to these areas. Of course, I am well aware of her work with the employee share ownership association, as I am of the work of my noble friend Lord Holmes of Richmond on employee ownership trusts, which are critical. I share the interest of the noble Lord, Lord Tunnicliffe, in finding out the results of the consultation that is under way in this general area. It is not often that I find myself supported by the noble Baroness, Lady Bennett of Manor Castle, but I am glad to have her along for the ride. The noble Baroness, Lady Kramer, was certainly right to remind us all how fast everything is changing and that we need to make sure that we are not trying to tackle yesterday’s problems and failing to tackle tomorrow’s.

I am not surprised that my noble friend the Minister could not accept these amendments. He rightly emphasised the work that the Government have done both in employment generally and as a result of the pandemic. If he had accepted the amendments, I probably would have fainted with surprise and been unable to reply to the debate. However, this issue is not going to go away. The weakness of our present regulatory system is that it merely catches and tries to prosecute the bad. In this part of the century, given all the challenges we face, the system should be doing more than that; it should be encouraging the good. This is an area where good could be encouraged, and that would have a huge trickle- down effect on our society as a whole.

Perhaps I may leave noble Lords with a quote from Robert Kennedy, who said that GDP measures

“everything … except that which makes life worthwhile”.

I beg leave to withdraw the amendment.

Amendment 108 withdrawn.

Amendments 109 to 111 not moved.

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

We now come to the group beginning with Amendment 112.

Amendment 112

Moved by

[Lord Holmes of Richmond]

112: After Clause 40, insert the following new Clause—
“Designated artificial intelligence officer
(1) The Secretary of State must by regulations made by statutory instrument provide that companies operating in the financial services sector who use artificial intelligence (“AI”) must have a designated AI officer.(2) The AI officer under subsection (1) has responsibility for ensuring the—(a) safe,(b) fair,(c) unbiased, and(d) non-discriminatory,use of AI.(3) The AI officer under subsection (1) also has responsibility to ensure that data used in any AI technology is unbiased.”

[Lord Holmes of Richmond (Con) [V]]

My Lords, in moving Amendment 112 I shall speak also to the following 10 amendments in the group, through to Amendment 136E, which is also in my name. I declare my interests as set out in the register and thank other noble Lords who have signed up to speak.

There are 11 amendments in the group and I should like to begin by making some broad comments about the overall theme. The group’s headline is fintech, financial technology, which covers a number of areas in and around that subject and demonstrates the connectivity between all the elements of 4IR, the fourth industrial revolution, including new technologies, and how they interact with one another in the context of financial services. They include AI—artificial intelligence —DLT or distributed ledger technology and blockchain, just to mention some that I will be coming on to discuss as we reach the amendments.

The Government have had a good story to tell on fintech since 2010—and indeed before: the Blair Administration were very positive around the UK’s opportunity and the potential that we have in this area of fintech. Perhaps the best example to date is the FCA’s sandbox, the measure of its success being its replication in more than 50 jurisdictions around the world. It was ground-breaking in its time; certainly, we find ourselves now, if not at a crossroads, certainly at a point where we need to consider everything across the fintech landscape and truly reflect on whether we are doing enough, or anywhere near enough, to ensure that the benefits are maximised for individuals, companies, all corporate entities and the UK as a whole.

17:30

Fintech is pervasive; it cuts across all sectors. In previous debates in Committee we ran through several incredibly important groups around financial inclusion. To flip that coin, financial exclusion has dogged the UK for decades, blighting lives, ruining opportunities and putting potential down. Fintech has a new lens to offer on the whole question of financial inclusion, not least in giving us the ability to reimagine and reconsider credit scoring in real time. I would put it to the Committee that, if we had had fully understood and deeply deployed fintech and indeed allied regtech throughout our financial services sector, we might have had a different set of circumstances in 2008-09.

The questions around fintech go to the questions of competitiveness. Brexit and Covid have put the country in a particular situation, and there could be no better opportunity or more pressing time to consider all the underpins and accelerators that exist across the fintech landscape. Fintech is the future, but it is the future now. There is no greater example than the fintech strategic review, to which I will come in more detail.

Before I move to the amendments, I have one final point to really drive home. The start-ups, scale-ups and sales of fintechs are going to be not just an element of financial services—they will be our financial services sector, and it is a competition. China understands that and has a particular approach, and the EU understands it and has one; we also need to understand it. In many ways, the debate gets somewhat caricatured by people who potentially see our approach being “Singapore-on-Thames”. Personally, I think that is extraordinarily disingenuous and disrespectful to Singapore, which operates an incredibly impressive financial services market. If correctly deployed and understood, fintech will transform financial services in the UK and will have standards and rules shot right through, not holding back but enabling and drawing into investments international interests and companies.

On the crypto element of this, we see Facebook’s Libra, now Diem, and we see the activities of the People’s Bank of China. What is the Government’s view on these two approaches? Do we want to find ourselves as crypto takers or, potentially, collaborative crypto makers—makers of the standards and, through that, makers of the markets?

I shall take the amendments in logical rather than numeric order and begin with Amendment 112. In it, I seek to probe the potential utility of having an AI officer in financial services businesses that use and deploy AI. We have seen the well-established concept of the anti-money laundering officer, or AMLO, and quite right too. We similarly see chief data, digital and information officers coming on to the scene. Considering the pervasive nature of AI and the fact that it could be extraordinarily positive or, potentially, precarious, would the Government consider looking into the AIO role within FS organisations?

AI is already deeply embedded in FS. The whole of our financial selves could very soon be at the will of AI. We need to ensure that it is safe, unbiased and non-discriminatory. One example—not from FS, but to make the point—is an AI soap dispenser in the United States that was trained just using data from Caucasian hands. The soap dispenser then would dispense soap only to hands which fitted the data on which it had been trained: horrific, extraordinary, shocking—but it happened. That is dispensing soap; what about when we are talking about people’s livelihoods or the financial selves of all of us?

I move to Amendment 118, which builds on this and seeks to probe the whole nature of the deployment of ethical AI. I believe that in the UK we have a competitive advantage in such deployment which is tied to our underpinning standards and the rule of law. This is set out in greater detail in the report of the Lords AI Select Committee, which I was lucky enough to serve on. We set out five rules for the deployment and understanding of ethical AI. Again, this would not hold business back; it would actually be a competitive advantage. To this end, I ask my noble friend whether the Government would consider changing, extending or expanding the role of the Centre for Data Ethics and Innovation. It is an excellent creation, and the fact that it combines innovation and ethics in its title is quite right. But is there a potential role where the CDEI takes on some regulatory functions rather than just advisory ones? Similarly, I ask my noble friend the Minister what the Government’s view is on XAI—explainable AI—and the pros and cons of having that concept deployed throughout our financial services sector.

Moving to Amendment 115 on distributed digital ID, I have been in enough debates in your Lordships’ House to understand all of the issues around ID, how it soon falls into potentially being seen as ID cards on one side and all of the issues around freedom, trust and privacy. But the reality is, we need to really grapple with, deploy and deliver a distributed digital ID system, not just as individuals but as corporate entities and as a nation. There have been what can probably be best described as a number of false starts when it comes to digital ID, but this is such an underpin to so much of the potential which fintech can deliver, and it is vital that we start to move at pace on it. It is as important to corporate entities as individuals and is not just about security—important though that is—and privacy. It can and would be a driver of growth. It is critical that it is built on a distributed, not centralising, model. I ask my noble friend, in terms of the work I think is going on within DCMS right now, what approach is being considered around this distributed model.

I have an example of how digital ID—and, indeed, ID—right now is sub-optimal. The first question should always be, “What do you want? You asked for my date of birth, but do you want my date of birth, do you need my date of birth, or do you just need to know that I am over 18? Do you just need to know that I am over 18 in a certain circumstance for a certain period?” Similarly, asking for an address or a utility bill is almost quaint in its antiquity, as if somehow to gain a utility service you have gone through some sophisticated KYC process.

Just this morning, while I was preparing for this debate, I received an email saying that there had been a problem with the renewal of my driving licence, and I needed to give various credentials that were set out. Noble Lords who know me will know, for obvious reasons, that this was clearly a scam. They will be delighted to know that I do not have a driving licence, nor do I drive, but, in so many ways, this simple, single example demonstrates many of the shortcomings and difficulties that we currently face without having a distributed digital ID.

My amendment suggests that the digital ID needs to be scalable; it needs to be flexible so that it can evolve—when and if quantum computing comes in, there will be a need to rehash all the keys for identity through quantum rather than current means. Crucially, it needs to be inclusive, not just in respect of all the protected characteristics but inclusive in its broadest, brightest, brilliant sense.

Finally, the Government would be advised to undertake a large piece of public engagement around digital ID. For understandable reasons, there is extraordinary fear and uncertainty about the concept. That is not unfounded; if it is got wrong, it goes badly wrong. We need to get the public engagement right, as was the case with Lady Warnock’s commission on fertility treatment —at first blush, nothing could be seen as more alien than test-tube babies, but it became incredibly well understood and popular through that public engagement. If we get that engagement right with distributed ID, I believe that there will be similar support for it across the nation. Does my noble friend the Minister agree?

On Amendment 119, on digital operational resilience, does my noble friend believe that the Government and the regulators currently have the grip that they would want across the FS sector to understand what the consequences are without the level of digital operational resilience which is required? Will she also comment on potential standards that could be drawn out in this area of DOR?

On Amendment 128, on transaction reporting requirements under MiFID and EMIR, will my noble friend comment on the existing operational burdens currently evident as a result of these requirements and whether the Government would consider looking at transaction ledgers, potentially built on a blockchain, to ease such burdens? As I have said since writing my 2017 report, Distributed Ledger Technologies for Public Good, I would never claim that DLT is the silver bullet; I would not even say that is necessarily a silver bullet, but I would say that it is surely worth a shot.

On Amendment 130, mandating a regime for open finance, noble Lords will be aware of the large success that open banking has been. We need urgently to extend this into open finance. It could cover various areas, not least mortgages and insurance, across the whole FS sector. Currently, we have what I can best describe as PSD 2 suboptimalities. What is the plan to amend PSD 2, not least in relation to an open finance regime? If the plan is not to use this current Financial Services Bill, then which Bill? If we truly had an open finance regime, we as individuals could have our data in our hands—we decide, we choose. If we do it, it will be a boon for fintech, a boon for individuals and a boon for the UK.

17:45

Amendment 133 looks at financial market infrastructure and the potential use of distributed ledger technology—DLT. Again, would my noble friend the Minister agree that there is a real opportunity to experiment and to play, to see what can be achieved through having DLT-enabled FMI? Would she further agree that a potential sandbox at the Bank of England could be of use in this area, as well as potentially with the work on central bank digital currency and other elements which come under the Bank of England’s remit?

Amendment 136B is on the report on the fintech strategic review. Ron Kalifa’s review is a fine piece of work. It had excellent chapter heads, and hundreds across the sector helped. It is packed full of detail and realistic, achievable and doable recommendations. Many of the recommendations do not require primary legislation or regulation. Does my noble friend the Minister agree that the Government should crack on with delivering those that do not? For those that do, I ask her: what is the plan? In many ways, this goes to a number of issues that have been discussed in previous groups. An elephant has been wandering around our Grand Committee, and it is the question: if not this Financial Services Bill, then which financial services Bill? If not now, when?

On Amendment 136D, on a scale-up review, does my noble friend the Minister agree that this is an opportune moment to look at this area? It has been a problem in the UK for decades. It should have been addressed decades ago and now, with Covid and Brexit, the time must be right to bring a report to Parliament which sets out the barriers, looks at all the issues around patient capital, and identifies all the gaps and the issues to scale up. There are some good examples to look at from other jurisdictions, not least the approach in Germany, and to consider all the issues around place-based growth. Does my noble friend the Minister agree that the comments in the fintech strategic review on scale-up and the need for a scale box to build on the sandbox also make sense, also tied to the fintech clusters around the country? Would she further agree that this ties into what was mentioned in the previous group of amendments: building back better and the whole levelling-up agenda?

Amendment 136E is on the modernisation of UK law to allow FMI to process digital instruments. Again, it would seem opportune to look at how we can transform our markets and bring in all the powers, with many of which we have a competitive advantage within the UK. In the previous group I mentioned the big bang in the City in the mid-1980s. If we get all these fintech changes right, we truly could have big bang 2—I do not even need to mention that it will be 2.0—for the benefit of the entire UK, not just the square mile.

Will the Minister comment on the dematerialisation of securities? Does she agree that we need to move at least at the same pace as the EU? Similar to my earlier comments, whether we like it or not this is a race, and we have the opportunity to compete and be successful in that race. Similarly, will she comment on digital opportunities with the settlement finality directive and how we could transform our approach there, and indeed the trading of tokenised securities—again, looking at how blockchain could underpin that? Lastly, what could be done in terms of post-trade processes?

Finally—I put it in this order for a reason—I come to Amendment 125 on a UK centre for applied innovation in financial services. I propose a centre at the centre, to make all this whole. I have been pushing this idea since 2015 and it is great to see that the concept of a centre is also in Ron Kalifa’s fintech strategic review. I envisage that, in such a centre, public policy issues could meet private sector solutions and academia. In an environment away from other approaches, verticals and silos, we could come up with solutions. Will the Minister comment on whether a report to Parliament on such a centre would be a good idea at this time? I believe that we need such a centre to drive across government if we are to achieve not only all the elements in the FSR, but all the potential benefits from fintech and all the new technologies from the fourth industrial revolution.

I have been involved on two occasions when cross-Whitehall working has truly come to life, and the results were sensational. The first was the 2012 Olympic and Paralympic Games. We were able to get 18 government departments to work together on a horizontal to deliver a pretty sensational summer of sport and a legacy which still beats, not just in the heart of east London but right across the country, as a result of staging those Games. It happened because the departments wanted to be involved. Similarly, over the last year, we have seen a fabulous cross-Whitehall effort on the Covid crisis. We had to, but we absolutely did. We need to reimagine the whole timetable for policy and consultation and an approach—which the centre would lead on—which put much more data and insight into decisions.

If we do not look at such a centre, and if we do not use the Bill to put into practice many of the recommendations from the fintech strategic review, when will we bring them into play? At the beginning of the Covid crisis, fintechs—often at weekends and in a short number of hours—came up with potential solutions for the effective, efficient and largely fraud-free distribution of CLBILS, CBILS, BBLS and self-employment payments. HMRC was unable to engage with them or port them into their systems. We now have an extraordinary toxic tail of fraud which will run long into the years ahead. We still have fintechs which, right now, could look back over time and solve those issues. Will the Minister comment on what the Government’s approach will be, across all departments, to engage with fintechs better? This is really a larger question: how can the Government engage with firms of all shapes and sizes, with SMEs obviously being critical to that?

I have spoken at length; I hope I have brought a picture of how these individual amendments add up to a potential transformation that we could have if we truly embraced the opportunity that fintech presents. We have the talent; we have the technology. Does the Minister agree that the time is now, and that we must act? I beg to move Amendment 112.

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

My Lords, it is a pleasure to follow the noble Lord, Lord Holmes of Richmond. He is, without a doubt, the House’s expert, and indeed enthusiast, on all these issues. In this large group of amendments, he has covered a broad range of issues of what is a huge area of the future of finance. He and I might differ somewhat in our balance between enthusiasm and concern about the risks, but it is really important that we are able to debate this. It is disappointing, however, to see the very small number of participants on this group, which brings up an issue that I will raise later, about the capacity of this Committee of your Lordships’ House to fulfil the role laid on us to scrutinise such large, complex, new and fast-moving areas.

Given the pressure of time, I will restrict myself to commenting on three amendments in this group. I start with Amendment 112, to which the noble Baroness, Lady McIntosh of Pickering, has also added her name. It calls for an artificial intelligence officer in companies—someone such as, I should imagine, a chief financial officer. I did a master’s thesis partly on artificial intelligence 20 years ago; I was then and remain an AI sceptic. After 20 years, we seem to be at the same point that we were then, which is “We are about to get to AI really soon, now, yes, it’s going to work”. In those 20 years, however, there has been massive progress in what is known in shorthand as “big data”, or the ability to crunch truly astonishing quantities of data and to manipulate and use it. So I suggest to the noble Lord, Lord Holmes, that perhaps what is needed is some kind of title or combination of roles that takes in both data and AI together.

On Amendment 118, the ethical use of artificial intelligence, the noble Lord has already covered this quite well, but it is important to stress that, in recent years, we have seen huge exposure of the difficulties of a sector that is profoundly unrepresentative of people whose lives it increasingly impacts. The noble Lord gave the example of soap dispensers which, in these days of Covid-19, is a potential matter of life and death; but we also need to think about access to your finances and being able to manage your finances, and even simply being able to manage them without having to take vastly more time and effort than some other person just because the AI mechanisms are discriminatory. These are all issues that need to be engaged with. I note, for example, that some of the events that have been happening recently at Google do not fill one with confidence about the ways in which the culture of the entire artificial intelligence community is moving—certainly in some areas.

I will comment finally on Amendment 119, about digital resilience. This is one of the most important factors of all. We increasingly hear talk of the internet of things, and of tying together the internet of things and fintech. I think particularly of the recent opening of a store in which there are no checkout people and no scanning and where lots of cameras watch and monitor everything that happens in that store and then a bill appears in your email later. This relates to an earlier group and our discussion on the nature of work and good work, but it also relates very much to the issues of discrimination and resilience.

I was in Lancaster a few years ago, after it had suffered an enormous flood. For several days, the city was without power and it was clear that things very nearly fell apart, due in large part to our reliance already on technology and fintech—that was how people paid for things. We need to think hard about issues of resilience in our age of shocks and how we build systems that will not be at risk of profoundly falling apart—not just the cash machines falling apart, but an inability to even obtain food.

I also need to mention the issues around bitcoin and other digital currencies. There are huge and growing concerns about their environmental impacts and indeed the sustainability of those impacts. Bitcoin and other such currencies are extremely energy-hungry by design. A single bitcoin transaction uses 707 kilowatt hours of electricity, which is the equivalent of 24 days of use by a single average US household. On an annual basis, were bitcoin alone to be a country, it would be 39th in the world in its energy consumption. These are massive changes that need to be considered in the round—the kind of triple accounting that the noble Baroness, Lady Kramer, talked about before. They are issues that deserve far more time and focus than we can give them today, but they really do need to be tackled.

18:00

[Baroness McIntosh of Pickering (Con) [V]]

I am delighted to follow the noble Baroness, Lady Bennett, and find myself in agreement with much of what she said, especially on finding a balance between regulations and introducing more fintech into financial services. I am delighted to speak to this group of amendments and must apologise from dropping out of the previous group, which goes to the question that the noble Baroness raised about the number of participants. I was participating in the Domestic Abuse Bill in the Chamber; I am sure many will be in that position, because we cannot be in two places at once, unfortunately.

I say at the outset that I yield to no one in my admiration for my noble friend Lord Holmes’s knowledge, expertise, passion and commitment in the area of artificial intelligence and fintech. I pay tribute to the work he has done in bringing forward this wide-ranging group of amendments. I am delighted to have co-signed and to support Amendments 112 and 115 and, rather than go through all the points that my noble friend raised, I shall just put a question to the Minister, when she comes to wind up this small debate. If we accept that there is a role for fintech and artificial intelligence in financial services, and accepting the competitive market, the nature of which my noble friend Lord Holmes explained, will the Minister support the amendments, or will she be able to set out today in what regard she accepts that we would like to promote the wider use of technology and artificial intelligence in the financial services sector? Given that, as my noble friend said, we have a good story to tell and do not wish to fall behind, does the Minister accept that, given the increasing number of graduates in the field of artificial intelligence, we owe it to them and to the universities that set them on this path to ensure that they have opportunities in this country to put their academic knowledge to good use? Are we not missing a trick in this regard by not ensuring that we enhance those opportunities? With those few comments, I shall be delighted to hear the Minister’s response to the amendments when she sums up.

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

My Lords, the noble Baroness, Lady Neville-Rolfe, was inadvertently left off the list of speakers, and I call her now.

[Baroness Neville-Rolfe (Con)]

My Lords, I thank my noble friends Lord Holmes of Richmond and Lady McIntosh of Pickering for tabling these amendments and I very much agree with my noble friend Lord Holmes on the scale of the transformation that will be driven by fintech. It is more important to the sector, in my view, than Brexit, and my noble friend Lady McIntosh’s question is therefore a good one.

I rise to speak on Amendment 115 on digital identification. I have taken a substantial interest in facilitating the provision of digital ID for several years. It is the sort of thing where the UK, with its early digital adoption and its skill in matters of security, should be ahead of the curve. Some good systems exist and have been rolled out in other European countries, but not here. This is probably because we have been waiting for the banking sector to make a decisive move.

I tabled amendments on digital identification during the passage of the Covid legislation, with support from some noble Lords here today. I did not press the matter because I was promised progress, and I had good meetings with my noble friend Lady Williams and the Digital Minister, Matt Warman MP, who published proposals for the UK digital identity and attributes trust framework on 11 February, with comments on it due from us all by tomorrow.

I thought that I would get another chance to press my case when our Covid laws were renewed but there is no sign of any such opportunity. I noted, however, that on 4 March my noble friend Lord Bethell, the Health Minister, told us that digital certificates, not physical ones, are being used for vaccines to avoid fraud, underlining the need to make progress in the financial area. The fraudulent attempt to trick my noble friend Lord Holmes in relation to his driving licence underlines exactly the scale of fraud in everyday life, an issue that is calling for digital ID.

I am disappointed about the pace of change on digital ID and although I support Amendment 115, it needs to be stronger. Waiting yet another six months for a plan is too slow. Why can we not get a grip of this important area, as we have done in the much greater challenge of vaccines? Give the job to Matt Warman with a remit to bring in digital ID for those who need it by 1 September. That would be novel provision but we need to accelerate this change.

[Baroness Kramer (LD)]

My Lords, after all those excellent speeches, I shall try to be brief but I need to declare my interests in the register because they apply to this group of amendments.

Fintech is an extraordinary success story in the UK. In 2011, shortly after having the privilege of being appointed to this House, I sought out and invited the chief executive of every fintech in the UK that I could find to come to a meeting. We needed only a small conference room over in Millbank House. Today, the QEII Centre would not be adequate. That alone speaks to the extraordinary success of the industry, much helped by an enlightened view from the Financial Conduct Authority, which had to be dragged kicking and screaming into looking benevolently upon the industry and understanding that it required appropriate regulation to grow. However, once it got there, the FCA has been incredibly positive and powerful.

I want to plead against complacency, which is a rather British weakness. In the days before Brexit, many of our fintechs chose to expand into continental Europe, using passporting and the e-commerce directive. They also attempted to go into the United States but few have been successful, partly because of the competition there and the difference in structure. The European market is incredibly important for expansion. We also know that it has been important for recruitment, which raises many issues around visas. A single person is perhaps not so hard to attract but someone whose wife or husband is unable to work may not be so cheered in taking up a visa to come to the UK. That is an underlying problem that we face for entrepreneurs and skills.

Many issues have been raised in this debate, including AI and fintech: the two merge over some significant territory. The issues raised by the noble Lord, Lord Holmes, are important and will, I hope, be a prod to make sure that we continue to deal with them at pace and to understand that there is no easy time. Berlin has, frankly, become a centre for tech within Europe and it would not be so very difficult to swivel that around and begin to absorb fintech. We do not want to put ourselves into that situation.

I wanted quickly to make two other points, picking up on points raised by the noble Lord, Lord Holmes. Digital fiat currency is now the issue of the moment. We have a relatively small window in which to decide whether we want to play in that area in such a way as to make us a significant player. One could say that sterling is not a natural global currency and we therefore need to be first mover. Picking up on the noble Lord’s point, I hope that we will look more at that area.

AI obviously brings with it extraordinary complexities and question marks but they are issues that can all be worked through if we focus on them. They will not become easier over time; they are just as difficult now as in the future, so one might as well deal with them as is. The issues raised by the noble Lord, Lord Holmes, deserve a proper debate on the Floor of the House and I am sure will draw in many more people than those who focus on financial services issues alone. I very much look forward to that opportunity as well as listening to the Minister’s response.

[Lord Tunnicliffe (Lab) [V]]

My Lords, I am grateful to the noble Lord, Lord Holmes of Richmond, for tabling this group of amendments, which deal with various aspects of fintech. His contributions on this Bill have been thoughtful, and nobody should be surprised by him pushing this agenda today, given his role as co-chair of the relevant APPG. As other noble Lords have mentioned, this debate is a topical one, following the publication of the Kalifa review on fintech last month. We welcome that review and hope that the Government will support our world-leading fintech sector to continue innovating and do so in a way that spreads opportunity to all parts of the country.

When we refer to things being life changing, we often do so in a hyperbolic manner. However, it is no exaggeration to say that technological innovation in the financial services sector has fundamentally altered our understanding of and everyday experiences with money. The pace and scope of change has been incredible; the journey from cheques to mobile phone payments, for example, has been a swift one. Many young people conduct virtually all their banking activity online through the apps of high-street banks or using entirely digital services such as Monzo. Elsewhere, terms such as crowdfunding and crypto currency have become common parlance, with the emergence and increasing use of new technologies, including artificial intelligence and blockchain. The possibilities are almost beyond comprehension.

Taken collectively, the noble Lord’s amendments point to the crux of the issue: how can we maximise the opportunities that undoubtedly exist in the sector while guarding against the risk inherent in the use of new technologies and working practices? Artificial intelligence is an interesting case in point. AI tools, which are regularly deployed in a number of sectors, have the potential to assist with a variety of issues which we have covered in previous debates, such as identifying fraudulent or otherwise suspicious transactions. However, Amendments 112 and 118 refer to some of the ethical considerations that arise from automated decision-making.

In a recent piece for the House magazine, and again in his opening remarks, the noble Lord issued a challenge to the Government that they should take steps now to foster the potential for our fintech sector or risk losing talent to our competitors, falling behind in the global tech arms race and, ultimately, having to play catch-up. I am not necessarily convinced of the case for legislative requirements for reports and reviews on these issues. The noble Lord is right to seek more information on the Government’s intentions. If London is to be the world-leading financial centre that the Chancellor and many others would like it to be, how do the Government plan to strike the balance that I spoke of previously? In striking that balance, how do Ministers plan to ensure that consumers and citizens are placed at the heart of a digital finance package? With technology touching all our lives, it is only right that we should all reap the benefits of change. However, as I mentioned previously, we must also take steps to identify and mitigate the risks.

There is probably far more that could be said than time allows. I look forward to seeing how much ground the Minister is able to cover.

[Baroness Penn (Con)]

My Lords, I am grateful for this opportunity to discuss the important issue of the use of technology in financial services and how technological developments will continue to impact the sector. The UK has been independently ranked as one of the best places in the world to start and grow a financial technology, or fintech, firm. I reassure my noble friend Lady McIntosh of Pickering that, as the Chancellor set out in his November speech on the future of financial services, we are not complacent. We want to build on this strength and use technology to deliver better outcomes for consumers and businesses and make the most of the job opportunities that this sector presents.

Many of the questions raised by the adoption of cutting-edge technology apply across the whole economy, not just to financial services, so although I am sympathetic to the purpose behind a number of the amendments—ensuring that the UK embraces the opportunities that new technology can bring—I am not convinced that they are the best route forward at this time.

18:15

The Government and the financial services regulators are taking a number of actions in this area, including the ongoing development of open banking and open finance, and a significant piece of work on crypto assets and distributed ledger technologies. I shall speak about those when considering the amendments.

Amendment 112 seeks to require financial services firms that use AI technology to appoint a designated AI officer to have oversight of their use of that technology. As I said, this question goes far beyond financial services firms, which is why the Government have established an Office for Artificial Intelligence. We have also established the Centre for Data Ethics and Innovation, to provide independent expert advice on the measures needed to enable and ensure safe, ethical and innovative uses of AI and data-driven technologies.

Amendment 115 seeks to require the Government to publish their plans for digital identity in financial services. I reassure my noble friend Lady Neville-Rolfe that the Government recognise the value of making it quicker and easier for people to verify their identity using modern technology. That is why, following a call for evidence in 2019, the Government committed to developing a legal framework to enable the adoption of secure digital identities that can be used in the greatest number of circumstances.

As my noble friend has noted, as an important first step, DCMS recently published the prototype of a trust framework for UK digital identity, for organisations that want to provide or consume digital identity and attribute products and services. The Treasury will continue to work with industry and DCMS to ensure that the Government’s approach to digital identity reflects the needs of financial services businesses and customers.

Amendment 118 would introduce an obligation on the financial services sector to follow guidelines published by the Centre for Data Ethics and Innovation, a body that I have already mentioned. This is an independent body made up of industry experts in data and technology. It draws on evidence and insights from regulators, academia, the public and business. The CDEI does not, however, act as a regulatory body, but instead acts to provide independent expert advice on the measures needed to enable and ensure safe, ethical and innovative uses of AI and data-driven technologies. It is therefore not within its remit to mandate industry, including the financial services sector, to abide by any guidance it may publish. However, its future role is being consulted on as part of the Government’s national data strategy.

Amendment 119 calls for a review of the digital operational resilience of the financial sector. I reassure the Committee that there are already robust obligations on firms and regulators to ensure their digital operational resilience. This issue is at the forefront of the regulators’ minds in the Bank of England, the PRA and the FCA. For example, threat-led penetration testing—CBEST—is regularly used to identify vulnerabilities and strengthen finance firms’ cyber defences.

Amendment 125 seeks to require a detailed plan to establish a UK centre for applied innovation that would have responsibility for developing standards for data sharing. Amendment 130 would require the laying of draft regulations requiring financial services data providers to make data available to third-party providers. Data sharing in the financial services sector is a key priority for the Government, as is demonstrated by our progress in developing the use of open banking and open finance. The UK’s open banking standard has been widely recognised as world-leading in enabling consumers to share their data with third-party providers to increase access to products and services that better suit their needs. There is an active programme of work on open finance, which would extend the benefits of open banking to a wider range of financial products.

However, the Government recognise that increased data sharing must be balanced by the appropriate management of any associated risks. That is why the FCA recently published a call for input on open finance, to understand what role regulation should play. It will respond by the end of this month to address next steps for the delivery of open finance. On Amendment 130 in particular, BEIS has already announced plans to bring forward legislation that will give the Government powers to mandate data sharing across sectors.

Amendment 128 would require the Government to produce a report relating to the impact of transaction reporting requirements in the UK, and whether those impacts could be alleviated through the use of blockchain technology. Amendment 133 would require the Government to consider options for a pilot scheme for market infrastructures based on distributed ledger technology. Amendment 136E calls for the Government to report on legislative and regulatory changes required to enable the UK’s financial market infrastructure to process digital instruments.

The Government are keen to explore the application of distributed ledger technology in financial services. It is hugely important that the financial sector grasps the potential opportunities presented by new technologies. This technology could have a transformative effect on markets, fundamentally altering the current market ecosystem and delivering more efficiency, improved liquidity, enhanced transparency and greater security. However, this is also a new and quickly developing area and it is important that innovation does not come at the cost of financial stability.

That is why, in January, the Treasury published a consultation on crypto assets and stablecoins and, as part of this, included a call for evidence on the use of distributed ledger technology in financial market infrastructures. The call for evidence asks for industry views on what the Government should be doing, including whether initiatives could be taken forward for trialling or testing this proposal—for example, by making use of existing schemes such as the FCA sandbox. The consultation closes this month and the Government are committed to exploring how best to proceed on this important agenda.

Amendment 136B would require a report on the implications of the financial technology strategic review on financial services regulation. The Kalifa review was published last month. It set out key actions to ensure that the UK’s world-leading fintech sector continues to go from strength to strength, and makes recommendations across a number of priority areas, of which regulation is one. The UK has long been a global leader in fintech, thanks in no small part to our forward-leaning approach to regulation. For example, the FCA was the first regulator to globally implement a regulatory sandbox, which has been key to fostering innovation, by providing a safe space for firms to test new ideas. This approach has been emulated by many of our international competitors. As I have said, the Government are committed to maintaining our lead, so we strongly welcome the review and are carefully considering its recommendations before setting out our next steps in due course.

I conclude by considering Amendment 136D, which would require the Government to report on what action they intend to take to reduce scale-up gaps in the UK financial services sector. The Government already have an extensive programme of work to tackle the scale-up gap across all sectors of the economy, not just financial services. The Government have supported thousands of innovative businesses in their early stages to scale and grow, through tax incentives, grants and loans, as well as through support in accessing finance, notably though the British Business Bank’s lending and equity programmes.

I applaud my noble friend Lord Holmes for bringing this important topic to the attention of the Committee. It is an area within which the Government, as well as the financial regulators, are very active. We intend to remain a world leader in this area. This has been a wide-ranging debate and I am conscious that we are limited in time. If there are any questions that I have failed to address in detail I will write to noble Lords. In the meantime, I hope that the work I have described will mean that my noble friend feels able to withdraw his amendment.

[Lord Holmes of Richmond (Con) [V]]

My Lords, I thank all noble Lords who have taken part in this debate.

I say to the noble Baroness, Lady Bennett, that her point on bitcoin was well made but, for the record, it is probably worth clarifying that that is a construction only of that particular cryptocurrency rather than an inevitability of a blockchain-based system.

I thank my noble friend Lady McIntosh of Pickering for her comments and for signing two of the amendments in the group. Similarly, I thank my noble friend Lady Neville-Rolfe for her comments on digital ID. I very much take her putting some more lead in my pencil to underscore the urgency of the issue; I am in complete lockstep with her on that point. I also thank the noble Baroness, Lady Kramer, and the noble Lord, Lord Tunnicliffe, for their constructive and positive comments, and indeed the Minister for her response. With that, I beg leave to withdraw Amendment 112.

Amendment 112 withdrawn.

Amendments 113 to 119 not moved.

Amendment 120

Moved by

[Lord Sikka]

120: After Clause 40, insert the following new Clause—
“Supervisory Board
(1) There is to be a Supervisory Board to perform the function of monitoring the FCA and PRA.(2) The Supervisory Board must consist entirely of stakeholders.(3) Recruitment for the membership of the Supervisory Board is to be conducted through open competition and the appointments are to be confirmed by the House of Commons Treasury Committee, or another relevant House of Commons Select Committee. (4) The Chancellor of the Exchequer may nominate individuals to the Supervisory Board.(5) The following are ineligible for appointment to the Supervisory Board—(a) current and past employees of the FCA and the PRA, and(b) current employees of organisations supervised by the FCA and the PRA.(6) A member’s membership of the Supervisory Board cannot exceed a period of five years beginning with the day the member’s appointment is confirmed under subsection (3).(7) The Supervisory Board has no responsibility for—(a) the day-to-day operations of the FCA or the PRA, and(b) investigations and enforcement of the rules devised by the FCA and the PRA.(8) The Supervisory Board’s functions are to—(a) provide strategic oversight of the Executive Boards of the FCA and PRA responsible for day-to-day operations;(b) inquire into the adequacy of resources used and available to the FCA and the PRA;(c) seek explanations from the Executive Board for reasons for the delay in launching and completing investigations; and(d) seek explanations from the Executive Board in relation to the efficiency and effectiveness of the FCA and the PRA in discharging their statutory duties.(9) The Supervisory Board shall have powers to—(a) demand explanations from the Executive Board on any matter affecting the protection of consumers from harmful practices;(b) secure information from the Executive Board about their transparency and accountability to the public; and(c) liaise with whistle-blowers and examine FCA and PRA policies for protecting and rewarding whistle-blowers.(10) The Supervisory Board must hold open meetings with the Executive Boards of the FCA and the PRA at least once every three months.(11) The working and background papers of the Supervisory Board must be made publicly available.(12) The Supervisory Board must lay before each House of Parliament an annual report highlighting matters of concern relating to the operation of the FCA and PRA which it has discovered in exercising its powers and functions.(13) The Supervisory Board must be consulted on appointment and reappointment of the Chief Executives of the FCA and the PRA.”Member’s explanatory statement
This new Clause would create a Supervisory Board to monitor the Executive Boards of the FCA and PRA and provide a diversity of views on the conduct of the FCA and the PRA.

[Lord Sikka (Lab) [V]]

My Lords, Amendment 120 seeks to strengthen regulation by empowering stakeholders to watch over the conduct of the executive boards of the FCA and the PRA, so that stakeholder interests do not continue to be marginalised.

Throughout the passage of the Bill in this House and the other place, considerable concern has been expressed about regulatory failures. In particular, the noble Baronesses, Lady Bennett of Manor Castle and Lady Bowles of Berkhamsted, and the noble Lord, Lord Davies of Brixton, drew attention to the well-known problem of regulatory capture.

Regulatory bodies such as the FCA and the PRA are too close to the interests of the finance industry, often at the expense of broader social interests. The revolving doors swing both ways as regulators come from the industry and, after a stint, they return to the industry. The regulatory capture has inflicted misery on millions, as shown by numerous scandals. There is no resolution of the HBOS and RBS frauds, there is dithering on mini-bonds, the London Capital & Finance and Connaught scandals testify to regulatory failures, the FCA was absent in the Carillion scandal, puny sanctions for mis-selling numerous financial products have not really changed corporate culture, and there has been little success in curbing tax avoidance, money laundering, and interest rate and exchange rate rigging. Indeed, there is a long history of regulators doing the bidding of the industry; my earlier interventions referred to the regulatory sympathies for HSBC, Standard Chartered bank and BCCI even though they were involved in anti-social and criminal activities.

Regulatory capture is built into the system as individuals close to the industry occupy senior decision-making positions as executive and non-executive directors. Ministers and others often argue that individuals of particular experience are needed. The focus on technical expertise inevitably privileges industry insiders and marginalises the experience of the people who are actually practised upon, who remain relatively invisible. These experienced people rarely blow the whistle on corrupt practices or check the groupthink that has become all too prevalent in regulatory bodies.

In theory, non-executive directors are expected to provide some oversight of executives of regulatory bodies, but they, too, have little independence from the industry. The non-questioning of the regulatory practices inside the regulatory boards only deepens the crisis. Even when whistleblowers give executive and non-executive directors hard evidence, their concerns are often ignored. Who can forget the heroic efforts of the late Paul Moore, who alerted regulators of problems at HBOS before the financial crash? But he was ignored. Corporate grandees at regulatory bodies all too often see the issues through the industry’s lenses. Regulatory bodies have become echo chambers of the vested interests. We are talking here not just about simple regulatory capture but cognitive capture, which standardises subjectivities and has naturalised the interests of the finance industry within the regulatory bodies.

18:30

In previous speeches, Ministers explained that press releases and annual reports hold the regulators to account. These documents are all too often sanitised and are simply full of self-congratulatory statements. They rarely draw attention or refer to the dark side of their practices. They rarely tackle issues about capture and have not prevented the FCA, the PRA and their predecessors being subservient to the interests of the finance industry.

So far in your Lordships’ House, various proposals have been advanced for external scrutiny of the FCA, such as through parliamentary committees, special reviews, standing committees and a variety of other mechanisms. These can help, but regulators also need to be invigilated from within. After all, the Nelsonian practices are incubated by organisational culture, and it is that culture that needs to be disrupted.

About two years ago, I led a research team which conducted a study of the UK’s regulatory architecture. I had meetings with many regulators, including financial regulators. They were asked to explain what their main purpose was. Without fail, they all claimed to be serving the public interest but, when probed about how they constructed and enacted a particular meaning of the public interest, they had considerable difficulties. They were unable to provide evidence to show that the public was privileged in their organisational architecture. I also remember the words of a former non-executive director of a regulatory body, who said, “The organisational culture makes it very difficult to raise questions about the conduct of senior colleagues. After all, one has to face them again and again.” Again, that ensures that the regulatory bodies are not that effective in checking their capture.

My amendment calls for a two-tier board structure for the FCA and the PRA. One tier, the executive board, is already in place and is responsible for the day-to-day operations of the regulatory bodies. The supervisory board will not interfere with that. The supervisory board will consist of stakeholders, and the amendment provides some information about its composition, appointment and role. Members of the supervisory board can come from civil society organisations, NGOs or trade unions or can be individuals seeking to improve the effectiveness of regulation to ensure that it serves the interests of the people. These outsiders will offer alternative views on environmental development, and thereby check the groupthink and temptation for the executive board to be subservient to the industry.

The independent stakeholders will exercise strategic oversight of the FCA and the PRA. They can offer their own evaluation of the effectiveness of the FCA and PRA executive boards in meeting their statutory objectives. These evaluations can have a bearing on whether executives will retain their jobs or be reappointed. This will act as a disciplining mechanism and as a bulwark against capture by the industry.

The amendment that I have proposed recommends complete sunshine, with meetings of the supervisory board and background papers being available to press and the people. If a supervisory board existed, it could have asked some very important questions. For example, it could have asked—

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

I am sorry to interrupt. A Division is taking place in the House. We will return in five minutes and the noble Lord, Lord Sikka, will be able to finish then. I do apologise to him.

18:35

Sitting suspended for a Division in the House.

18:38

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

My Lords, I think all of us who were going to vote have now done so, so I invite the noble Lord, Lord Sikka, to finish his speech and move his amendment.

[Lord Sikka (Lab) [V]]

My Lords, I wanted to provide some examples of the kind of questions which the supervisory board might raise. For example, it could ask the FCA/PRA executive board to explain the delay in securing compensation for the victims of the HBOS and RBS frauds—that could be one question; I shall give a few more examples. It could ask why no one at the board level of HBOS and RBS has so far been prosecuted or why HSBC took 20 hours to respond to calls on its fraud helpline—which is of concern to many people. It could ask whether it was appropriate for the FCA to commission Section 166 reports from organisations involved in antisocial practices, or what progress the FCA had made in dealing with the issues relating to banks forging customers’ signatures. It could ask what policies were being developed to deal with global warming—which, again, is of interest to many people. It could ask what the regulators were doing to protect people from predatory lending practices—payday lending problems have not gone away, as we all know—or to protect businesses, especially small businesses, from excessive charges by credit card companies. It could ask what the PRA was doing to address the shortcomings of the Basel III recommendations. Lastly, as we all know that a remit of the FCA is to promote competition in respect of financial services, the supervisory board could ask how the FCA would do that given that many towns now lack bank branches.

These kinds of probing questions do not interfere with the day-to-day running, but they provide oversight and they push back against regulatory silence and capture. A supervisory board will erode the space for regulators to sweep things under their dusty carpets. It can transform our country and ensure that regulators work to protect the people and address their concerns.

Ministers often say that regulators are there to serve the people, so what objections can there be to empowering people to sit on the supervisory boards and democratise the regulatory structures and our society? Empowering people has a much lower cost than that associated with scandals and financial crisis.

I beg to move the amendment.

[Viscount Trenchard (Con)]

My Lords, I understand that Amendment 120 in the name of the noble Lord, Lord Sikka, seeks to establish a supervisory board for the two regulators. My first thought was that the noble Lord intended that this board should function in the same way as a joint co-ordination committee, as proposed in Amendment 86 in the name of my noble friend Lord Blackwell, which we debated on Monday. The explanatory statement, however, does not suggest that the board would co-ordinate the activities of the two regulators; rather, it would simply monitor the executive boards of the regulators and provide a diversity of views on their conduct.

From his opening remarks, I understand that the noble Lord’s intention is very different. While there have inevitably been some mistakes, I do not recognise the picture that he paints. The regulators have always been willing to learn from what has not gone as well as it might have. As long as the PRA and FCA remain separate organisations with different functions and objectives, it seems to me that this supervisory board would, in effect, have two separate personae or incarnations. It would have to function separately as a supervisory board of the FCA and as one of the PRA. I think it cannot be a part of the legal structure of either regulator or of both regulators. It would seem to duplicate the arrangements for parliamentary oversight which we have discussed and on which I would ask my noble friend the Minister to tell the Committee how his thinking is developing.

The amendment refers to the executive board of the PRA, although the noble Lord, Lord Sikka, should be aware that the board of the PRA was replaced by the Prudential Regulation Committee of the Bank of England in 2017. I do not think that such a supervisory board would replace the need for parliamentary scrutiny of the regulators, which will in itself provide appropriate transparency and accountability, rather than the completely crushing, destructive oversight that I believe the noble Lord’s new board would cause. It would be a cumbersome, expensive and bureaucratic body that would have a negative effect on the future attractiveness and competitiveness of the City of London as a global financial centre, so I cannot support his amendment.

18:45

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

My Lords, I thank the noble Lord, Lord Sikka, for introducing this amendment. I will be brief, because it concerns accountability, which has already been much discussed; and, like the noble Viscount, Lord Trenchard, I have really only just found out the intentions of the noble Lord, Lord Sikka, regarding the amendment—I was a little blindsided about the formal structure. The accountability debate, as we have progressed through this Bill, has shown more appetite to enhance Parliament’s oversight than to create other bodies. My personal view is well known, that ultimately I think more than Parliament will be needed, but if the route of just Parliament is followed, at least to start, then it is true that some of the functions—or challenges—listed in this amendment for the supervisory board could be pursued that way.

However, the other intention of this amendment is to find a way to prevent regulatory capture from within, which I understand. The mechanism to ensure that the supervisory board itself is not captured includes having public meetings and public documents—bringing in the sunshine, as the noble Lord said. This has some merit as a way to reflect the public interest that supervisors seemingly could not define and to democratise in some way—although I am not sure whether it has been correctly formulated yet. I also share the noble Lord’s concern that press releases, annual reports and even appearances before Select Committees do not give penetration beyond the regulators making assertions. That has to be so, because there is a mismatch between reports and assertions and then what we discover further down the track about what was actually going on at the same time as we received those assertions. We have obtained penetration only through reports such as the Gloucester review.

Some stronger powers would be needed to compel better information than is currently provided by regulators and made public. That will apply to all the ideas about oversight that we have been probing. I am not sure that we have found a perfect solution or combination of solutions yet, and I suspect that we will need more than one stage to do that. However, having a mechanism to prevent regulatory capture and groupthink is necessary—never mind the revolving door between the regulators and industry and the representation of industries within the regulators’ structure. The obligation to consult the public about rules is predominantly served through responses from industry. One thing that we know about consultations is that, broadly, they run on the weighing of the responses. At least that is certainly the way when it comes to government. When you have the weight of responses from industry, the relatively few that go in from public interest bodies do not necessarily hold the weight that they should.

The noble Lord, Lord Sikka, has brought forward some issues that we have to recognise and address. We need to put them into the pot of the matters that we think about as we move forward on accountability. I maintain my view that we probably will not achieve what we want simply by saying “enhance Parliament”. We will find over time that we need something else as well.

[Baroness Kramer (LD)]

My Lords, I very much agree with the noble Lord, Lord Sikka, that regulatory capture is a real risk. We certainly saw that prior to the 2008-09 crash, and many people would say that the soft hand of the regulator has ever since reflected an ongoing degree of regulatory capture. I am less focused on the revolving door issue but am much more concerned that the regulator says, “Wait a minute. If we go hard after whichever institution has done wrong, particularly if it is a major one and would involve going after senior people, we will disrupt financial stability. For that greater good, we must go softly and gently”. That approach has not served the industry or the country well.

We have talked extensively about accountability. I see this matter as an extension of that conversation. We have talked about the importance of accountability being extremely well informed in a way in which it is not today, and about the importance of transparency. Numerous ideas have come forward during the process of this Grand Committee. This is another, different approach that essentially tries to get to the same place —a regulator that has to be transparent and which provides genuine, sufficient and high-quality information that can be assessed by people of a relevant skills base, and that is accountable to Parliament. It should not be a regulator that just meets with Parliament and gives it an explanation once or twice a year but one that is actually accountable.

[Lord Tunnicliffe (Lab) [V]]

My Lords, the interesting amendment tabled by my noble friend Lord Sikka is another demonstration of the considerable unease felt on all sides of the Grand Committee about the governance of the FCA and the PRA, and their relationship with one another. The amendments moved on Monday by the noble Lord, Lord Blackwell, addressed similar concerns. The question still to be answered is: what would be the composition and terms of reference of such a supervisory board? Is the Treasury not deemed to be performing that role? How can we be confident that the supervisory board would have the authority and expertise to perform a task that my noble friend Lord Sikka rightly identified as being necessary?

I am sorry to sound like a broken record. Are not my noble friend Lord Sikka’s concerns another example of the lack of an effective mechanism of parliamentary scrutiny? Whether an effective parliamentary mechanism can be created is a question that we do not hear or have the ability to address but it must be addressed. I am sure that the Minister will agree.

[Earl Howe (Con)]

My Lords, the Government agree that effective oversight of the FCA and PRA is a crucial component of our regulatory framework. Indeed, noble Lords will remember that in earlier debates we discussed the existing mechanisms to ensure effective independent oversight of the regulators by a diverse range of stakeholders. For example, both the FCA and PRA are required under the Financial Services and Markets Act 2000 to consult independent panels on the impact of their work.

I should say that in general I do not recognise the picture of regulatory capture that the noble Lord, Lord Sikka, painted in relation to our two financial regulators, although I shall of course read his comments in Hansard and make sure that I understand all that he said.

For the PRA, this involves consulting an independent practitioner panel of industry representatives, while the FCA must consult four different statutory panels, representing consumers as well as the financial services industry. Furthermore, the regulators are already under a statutory obligation to publish the results of their public consultations, including on proposed new rules.

The amendment proposes that the FCA and PRA should attend hearings in front of a supervisory board. I simply observe that both bodies must already attend such hearings before parliamentary committees, and those committees may also hear evidence from stakeholders about the performance of the regulators. The FCA, for example, must attend general accountability hearings before the Treasury Select Committee twice a year, while the PRA must appear before that committee after the publication of its annual report. Parliamentary committees of both Houses are also able to summon the regulators to give evidence whenever they may choose. For example, the CEO and chairman of the FCA appeared before the Treasury Select Committee on 1 March to answer questions on their regulation of London Capital & Finance.

The amendment proposes that a supervisory board should have the power to inquire into the adequacy of resources used and available to the FCA and the PRA. However, as we have discussed in previous debates, the Treasury already has the capacity to order independent reviews into the regulators’ economy, efficiency and effectiveness. Therefore, all told, the amendment would result in a duplication of existing opportunities for scrutiny and oversight of the regulators’ resourcing.

I realise that the noble Lord, Lord Sikka, has a close interest in the issue of supervision, but I hope I have convinced him that the PRA and FCA are already accountable in meaningful and tangible ways, and that a diverse range of stakeholders has opportunities to participate in scrutiny of their actions.

Finally, let me say that the Government are not closing down debate on these issues. As I have set out during other debates, the future regulatory framework review is already exploring how our framework needs to adapt to reflect our new position outside the EU. It would be premature to make changes to these arrangements before we consider stakeholder responses to the ongoing consultation. However, I have noted the contributions from the Committee on what form that may take. Against that background, I ask that the amendment be withdrawn.

[Lord Sikka (Lab) [V]]

I am grateful to all noble Lords for their contributions to the debate, and it would be helpful if I could respond to a few points. First, under my amendment both the FCA and the PRA would need a supervisory board. Indeed, if I were redesigning the entire regulatory architecture in the UK, every regulatory body would have a supervisory board, because that is the only way of putting ordinary people, who are practised upon, inside the organisation, to check the conduct of executive boards and reshape the organisational culture, which has given us such problems.

The amendment does not duplicate in any way whatever what any parliamentary committee or review board might do. The supervisory board would simply be engaged in day-to-day strategic oversight. Those people would be in the organisation on a permanent basis, observing, requiring reports, making recommendations and in many ways hoping to prevent the major scandals that we read about later—often some years later. It has been suggested that such regulatory architecture would be cumbersome and expensive. My response, as always, is, “What do you think the cost of the status quo is?” How many more banking crashes can we afford? How many more London Capital & Finances, how many more Connaughts, and other scandals, can we afford? We simply cannot afford them.

19:00

The Minister referred to how the FCA and the PRA are summoned to appear in front of parliamentary bodies—I am well aware of that. Of course, they are incredibly well coached by lawyers and PR people as to what words to say. Indeed, I have seen those things in action, even right down to what colour of suit and tie to wear. That does not amount to a scrutiny of their daily conduct. Of course, regular reports are produced, but we all know that reports are the outcome of a particular kind of politics. If we were to look at many financial enterprises’ accounts, we would not find much by way of admission about, for example, tax avoidance or money laundering, because those things are entirely filtered out. Many of those reports are ritualistic. I suggest that we need to penetrate those rituals to change the culture. That is the main point of the amendment.

Nevertheless, I am encouraged by the Minister’s comment that the Government will possibly think about the issues which have been raised today. My feeling is that these problems will not go away and that we need to insert ordinary people inside the organisations. I hope that will happen perhaps within my lifetime. For the time being, I beg leave to withdraw the amendment.

Amendment 120 withdrawn.

Amendment 121

Moved by

[Baroness Bowles of Berkhamsted]

121: After Clause 40, insert the following new Clause—
“Country-by-country reporting requirements
(1) The PRA must include country-by-country reporting requirements in reporting requirements for banks.(2) The FCA must include country-by-country reporting requirements in reporting requirements for investment firms.”

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

My Lords, this amendment was not intended newly to introduce country-by-country reporting but to maintain the country-by-country reporting requirements that exist through CRD IV and retained EU law. In retrospect, looking at my amendment now, perhaps that is not quite clear.

Once again, as the statutory instrument layer is removed, it is within the purview of our financial regulators to decide that some things are inconvenient or not part of their main remit and to dispense with them. Article 89 of CRD IV requires institutions to report annually, specifying by country in which they have an establishment, information on a consolidated basis including: name, nature of activity and geographical location; turnover; number of employees on a full-time basis; profit or loss before tax; tax on profit or loss; and public subsidies received. Since then, there has been a little more general progress in country-by-country reporting, but I wanted to ensure there were no backward steps as the PRA and FCA start to write the rules.

There was much coverage at the time about the late insertion by the European Parliament of country-by-country reporting that nobody expected, but I can tell the story—which can actually be seen if we look at whole article in the directive. As was the way in trialogues that I chaired in the European Parliament, we shared out speaking. I am sure that the noble Baroness, Lady Bennett, will be pleased to hear that the Greens were leading on country-by-country reporting, but all that had been conceded to the Parliament in the trialogue was an assessment, maybe followed by legislation if appropriate.

I got a note from the Greens’ adviser saying that they were out of arguments and asking whether I could help. Maybe I should have framed that, because a Green being out of arguments is quite an astonishing thing. They knew that at that stage we had nothing to trade in return to get country-by-country reporting in. So I asked the Council and Commission to confirm that the only reason why they objected was that industry was saying that economic damage would be caused by country-by-country reporting. They both swore that that was the only reason why they were objecting to the insertion of such a clause: that they were afraid of what might happen if these really rather mild provisions were introduced.

I then proposed that the information be submitted in confidence to the Commission and that, in consultation with the regulators, there be then a general assessment of potential negative economic consequences of public disclosure, including the impact on competitiveness, investment, credit availability and the stability of the financial system. It sounds incredible, but those were the scare stories that the other institutions had bought into.

In the event that the report, including analysis based on actual data, identified significant effects, then the provision of public disclosures could be deferred or removed, but otherwise the provision would come into force in 2015. Having sworn that the only nervousness was about all these effects, they then had to concede that proposal. All that explains the content that you can clearly see in article 89 and the report in its paragraph 3. Of course, no damage was found, and the article is in force and transposed into UK law. I quote from a 2014 PWC document on compliance:

“HMT sought to adopt a pragmatic approach to provide rules that are practical and which provide some options designed to ease the compliance burden faced by businesses. This optionality has allowed HMT to implement rules that comply with CRD IV, but which, in line with broader Government policy, do not mandate reporting beyond the requirements of CRD IV.”


There are some activities that would trigger investment firms falling within scope, so it therefore seems relevant to raise this matter in the Bill, as the investment firm provisions are about to be rewritten. Of course, small and UK-only investment firms may not fall within the definitions, because I am proposing carry-over of the existing ones, but where they are larger organisations then they should continue to comply. Against that background, I hope that the Government will not say that they want to allow closing down of transparency and that the Minister will understand why I do not believe any of the scare stories about damage. I beg to move.

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

My Lords, it is a great pleasure to follow the noble Baroness, Lady Bowles, not just because she highlighted the role of the Greens in pushing country-by-country reporting at the European level, and the value of having a Green in the room. A great way of bringing people on board and into the debate is to ask them for help. I will briefly quote the chair of European Parliament’s sub-committee on taxation, MEP Paul Tang:

“I think transparency is a powerful tool for change because many of the current tax policies can’t stand the light of day. Just shine the light on it.”


That was from an interview with Forbes, showing how so many of the defenders of the status quo are increasingly isolated and clearly out of touch, not just with the public but with much of the establishment who realise that things cannot go on as they are.

I have been asked at public meetings over many years how we get multinationals, rich individuals and the financial sector to pay their taxes. My first answer is simple: you need a Government who want to make them pay their taxes. My second, more detailed and technical, answer is, simply, country-by-country reporting. This is something that the UK can impose without needing international agreements. I back the noble Baroness’s amendment to the hilt.

[Baroness Kramer (LD)]

My Lords, I am going to be very brief again on this issue, because I cannot pretend that it is my area of expertise. I remember the period when George Osborne was very proud of saying that not only would he make country-by-country a requirement but that it would be published. My understanding is that that was reversed in 2016. Perhaps the Minister will correct me, but that information is no longer published at a national level and the UK has been fairly instrumental in blocking the OECD from publishing the data at an international level. I apologise if I have got that wrong: I am reading from a Tax Justice Network report. Its calculation is that, as a consequence of not publishing, and therefore not having the cleansing impact of transparency, the UK misses out on collecting something in the range of £2.5 billion in corporate taxes a year.

Again, this is not my area of expertise, but I shall wish to hear from the Minister. We as a country have always said the answer is transparency. We have insisted that publication is the mechanism for cleaning up abuse. I would be extremely troubled if the regulators felt they were now in a position to weaken in any way country-by-country reporting requirements.

[Lord Tunnicliffe (Lab) [V]]

My Lords, the provision of country-by-country data by banks and investment firms will be an important step forward both in combating financial crime and in addressing the vexed question of the fair taxation of international entities. These problems will be solved only by international negotiation and agreement. It is important that we are seen as an exemplar, and satisfactory country-by-country reporting is surely part of that.

[Earl Howe (Con)]

My Lords, Amendment 121 aims to ensure that banks and investment firms engage in country-by-country reporting related to the provision of tax information. I am happy to assure the noble Baroness that there is no need for this amendment, because such requirements already exist for these firms in legislation.

Banks and most investment firms are already subject to country-by-country reporting requirements as a result of the fourth capital requirements directive, or CRD IV, which we implemented in the UK while we were an EU member state. This was done through a statutory instrument in 2013, and it requires firms to report relevant information on tax and revenue in each country where they have operations. This statutory instrument remains in place today. In order to implement the investment firms prudential regime, this Bill removes investment firms from the prudential requirements for banks in the capital requirements regulation—in order to allow the FCA to implement the new regime. But Schedule 1 to the Bill ensures that country-by-country reporting requirements will continue to apply to FCA investment firms.

There is an exception for small and non-interconnected investment firms. This is because this new regime aims to ensure proportional requirements for investment firms consistent with their size and activities. These firms are, by definition, small and non-interconnected with the wider financial system, and it would be disproportionate for these requirements to apply to them. This is the same approach that the EU took in the investment firms directive.

Amendment 121 would have the effect of preventing small and non-interconnected firms from being carved out in this way. For the reasons just mentioned, I do not think that this is appropriate. Therefore, when it comes to banks and investment firms, I am confident that the existing country-by-country reporting requirements for these firms are appropriate, and I ask the noble Baroness, Lady Bowles, to withdraw the amendment.

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

I thank everybody who has spoken. The Minister has answered the question and I do not need to make any comments so, in the interests of time, I beg leave to withdraw my amendment.

Amendment 121 withdrawn.

Amendment 122 not moved.

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

We now come to the final group, beginning with Amendment 123.

Amendment 123

Moved by

[Baroness Bennett of Manor Castle]

123: After Clause 40, insert the following new Clause—
“Regular impact assessments on the UK financial services sector
(1) Within 12 months of the passing of this Act, and every subsequent five years, the responsible Treasury Minister, Chairs and Chief Executive Officers of the Prudential Regulation Authority and Financial Conduct Authority must each separately provide reports to relevant Committees of the House of Commons and House of Lords.(2) The reports under subsection (1) must include an assessment and critical analysis of the following—(a) the costs and benefits of the financial services sector in the United Kingdom;(b) the impact of the financial services sector on inequality and economic development;(c) the impact of capital allocation decisions on real economic activity;(d) net gains or losses to the real economy caused by mergers and acquisitions;(e) risks to the real economy of write downs in the value of financial assets;(f) risks inherent in “shadow banking”;(g) the impacts of money and financial activities being moved to offshore jurisdictions.(3) In preparing the reports under subsection (1), the responsible person must consult with, and publish any submissions from, the Financial Scrutiny and Oversight Network.(4) In this section—“shadow banking” means financial services which are not subject to regulatory oversight, including but not limited to unregulated activities by regulated entities;“real economy” means the production, distribution and consumption of goods and services.”

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

My Lords, I beg to move my Amendment 123 and speak also to Amendment 124. They are quite large amendments, and I would say significant proposals, and I have cut down what I shall say given the time. This is based in large part on the work of the Sheffield Political Economy Research Institute, known as SPERI, and particularly Professor Andrew Baker there, and the Tax Justice Network, particularly Nicholas Shaxson.

I begin with Amendment 123, as it flows on from an earlier exchange between the noble Earl and me, which he kindly continued by letter, confirming my assumption that the source of his claim for the annual tax revenue for the financial sector of £76 billion came from a PricewaterhouseCoopers report. That is, of course, a gross figure, one that reflects income but not costs. It is in no way an impact assessment. It is a pity that the noble Baroness, Lady Noakes, is not with us now.

This amendment proposes that within 12 months of the passing of this Bill and every subsequent five years the responsible bodies must separately provide reports to the relevant committee of the Commons and Lords and consult the financial scrutiny and oversight network, which I shall get to shortly. Behind this is the fact that there is now a large body of academic literature, known as the “too much finance” literature, which supports the idea that some countries, including most certainly the United Kingdom, suffer from the finance curse: too much finance makes us poorer. It seems that the City of London passed the point of optimal finance sometime in the 1980s and has grown massively since then, harming the UK economy. The only study of which I am aware that has attempted to quantify the damage, from SPERI, estimated in 2019 that excess finance reduced economic growth by a cumulative £4.5 trillion from 1995 to 2015. That is the finance curse.

19:15

One of the easiest ways in which to think about this is in terms of its consumption of human resources. The example I will use demonstrates the reasons for the inclusion of many elements of the suggested report. A bright young woman from Newcastle finishes a PhD in mathematics. She might go into academic research, advancing human knowledge; she might go into manufacturing, refining or advancing practices and approaches to improve productivity and create new products—or there is the lure of the City, of huge salaries and bonuses and glossy excitement. She may well go on to invent the next fancy financial instrument that brings down a bank or two, after it has made a lot of money for a few people along the way. She will be based in London of course, where all that money is sucked to, including money from privatised local services, care homes, PFI schools, hospitals and roads and outsourced contracts for security and social care, from up and down the country—for the concentration of money in a small part of the country is another part of the finance curse, a major contributor to the UK’s world-leading levels of regional inequality.

In contemplating how to approach the finance curse in legislation, I might have taken a Goldilocks approach, calling for the Government to work out what is a “just right” size of financial sector for the UK, and to develop policies to deliver it. But we have referred much to another impact of the financial sector—its lobbying power, and not just with the Conservative Party that forms our current Government. So the amendment takes a softer approach. All that it asks for is accurate, independent information and transparency, something which, as the noble Earl’s reliance on figures from PricewaterhouseCoopers demonstrates, is clearly lacking.

I referred to the financial scrutiny and oversight network—the acronym FSON perhaps needs some work. In essence, it is a UK equivalent to the EU’s Finance Watch. I am sure that expert noble Lords will be aware of Finance Watch, how it came into being and subsequently acted. With the mandate of making finance serve society, it was established in 2010 by a group of MEPs including Greens, with a grant, tasked with providing advice and counter-submissions to parliamentarians on financial regulatory legislation. In particular, it was given the job of identifying, amending and removing clauses that placed excessive costs and risks on the wider public. I have shared with many noble Lords an account of its successes.

I commented earlier on the sparseness of much of the debate on this Bill and, indeed, the speed at which we are operating now. The contrast with the Domestic Abuse Bill, on which the noble Baroness, Lady McIntosh of Pickering, and I are operating, is clear. We are struggling to manage to deal with this Bill. We have a tiny, sparse crew—and that is no insult to anyone here, particularly when contrasting it with the Domestic Abuse Bill. Everyone here is working very hard but, with the best will in the world, we cannot match the kind of scrutiny and outcomes that Finance Watch has regularly delivered for the EU and that we urgently need in the UK.

We have talked a lot about regulatory and policy capture; it has been well documented. Lawyers talk about the need for equality of arms in court cases. In oversight of the financial sector and its regulation, there is extreme inequality of arms. FSON would not be a magic wand, but it would be a start. I beg to move.

[Baroness Kramer (LD)]

My Lords, I think I understand where the noble Baroness, Lady Bennett, is coming from. I am not sure that I personally would want to let the Treasury get its hands on an assessment of the UK financial services sector, because it seems that so much depends on the lens through which you look. But what I would like to be sure of is that the relevant information and statistics—those kinds of metrics that would enable you to assess impacts on the real economy—would be available, because we have quite a number of institutions, including think tanks and academic institutions, that could do really good work on all these areas which would then inform Parliament. I would very much like that to happen.

Perhaps this all feeds back into the issue that we have looked at over and over again, which is that, absent some significant change, the necessary information is just not available, whether one is trying to look at the macro level or the micro level. That information has to be available, or else accountability in any proper sense just cannot exist.

[Lord Tunnicliffe (Lab) [V]]

My Lords, I think the whole subject of supervision and the presentation of information for decision-making is very important. I do not think that it could be shoehorned into this Bill. I hope that the Government will note the concerns about this and meet it where we can in parts of the Bill, but perhaps there has to be an ongoing debate, which will hopefully come to some consensus about how we improve the supervision and accountability of the financial services sector.

[Earl Howe (Con)]

My Lords, I listened carefully to the noble Baroness, Lady Bennett, in her clear introduction to these amendments, and I thank her for the background briefing papers that she kindly sent me this morning. Having said that, I hope she will forgive me if I do not turn the end of these Committee proceedings into an off-the-cuff economics seminar. Indeed, she will not be surprised if, on behalf of the Government, I adopt an orthodox stance on the role of our financial services sector.

It is the Government’s firm contention that the financial services sector is a vital part of our economy. It employs more than a million people, and two-thirds of the people employed in financial and professional services work outside London. It has been a critical source of tax revenue, whatever the exact figure, especially in these difficult times.

The IMF has described the UK’s financial system as a global public good, so the Treasury is not persuaded by the arguments of the Tax Justice Network around “too much finance” or that finance is inherently a bad thing for the real economy. The financial services sector supports British businesses to expand, manage cash flow, invest in themselves and create jobs. The sector is also one of our leading industries in its own right, driven by a concentration of international, and therefore internationally mobile, firms.

Amendment 123 would require regular reports on the impact of the financial services sector on a range of topics including growth, inequality and risk. Amendment 124 would establish a new oversight body which would consider the impact of this sector on the “real economy”.

I have already set out some of the positive impacts that the sector has in its own right on growth, jobs and tax revenue in the UK. But let us not forget that it is also a sector on which all other parts of our economy rely. This means that the sector is a vital source of funding and services for other sectors of the economy. But, of course, it can also mean that if there are problems in the financial services sector, they can affect other parts of our economy. That is why the sector is so vital, and it is why I am able to assure noble Lords that the Government are absolutely committed to transparency around financial risks and welcome independent scrutiny of risk exposure.

The Bank of England’s Financial Policy Committee also has a responsibility to identify, monitor and take action to remove or reduce systemic risks. The committee was established under the Financial Services Act 2012 and must publish and lay before Parliament a financial stability report twice a year. As part of its assessment of financial stability risks, the Financial Policy Committee already considers and reports on risks arising from shadow banking, also referred to as “non-banks”. Given the rapid growth of non-banks, the Treasury has asked the Financial Policy Committee to publish a detailed assessment of the risk oversight and mitigation systems in place for non-banks. That is expected in the first half of this year.

The Office for Budget Responsibility produces and presents a fiscal risks report to Parliament every two years, and it has previously explored risks posed by and to the financial sector. More generally, the FCA and PRA are required to prepare and lay annual reports before Parliament, assessing how effectively their objectives have been advanced. These objectives are set by Parliament, as noble Lords are well aware.

Of course, as I said, one key role of the financial services sector is to provide funding to the so-called real economy. The Government have recognised that, in this Bill, the provisions on the implementation of Basel require the PRA to have regard to the likely effect of its rules on the ability of the firms affected to continue to provide finance to businesses and consumers in the UK, on a sustainable basis in the medium and long term.

The amendment refers to inequality. On that issue, I can reassure the Committee that the Treasury, the FCA and the PRA are all bound by the public sector equality duty. As part of that duty, all three are required by the Equality Act 2010 to have due regard to the need to eliminate discrimination and to promote equality of opportunity in carrying out their policies, services and functions. The FCA publishes a diversity annual report to set specific measurable equality objectives and publish relevant, proportionate information demonstrating its compliance with the public sector equality duty.

Amendment 124 mentions the impact of the financial services sector on climate change and biodiversity. The Committee will I hope forgive me if I do not repeat what I said in earlier debates on that topic, as I have already set out the actions that the regulators are taking in that space.

I turn briefly to the composition of the oversight network that the noble Baroness proposes. I am completely with her in believing that the regulators should take on board a variety of different views; it is important that they do so. In fact, the FCA already has a statutory requirement to consult independent panels representing consumers and practitioners, and the Bank of England has strong links with many academics. Of course, all the groups mentioned are able to respond to consultations, which the regulators are required to undertake, and where their responses must be considered.

As a general comment, I just say that the topics raised by the noble Baroness are those which the Treasury and the regulators consider every day when making financial services policy. I assure her that the Government are committed to ensuring that the sector has a positive impact for consumers and for the economy as a whole. No Government could do otherwise.

Given all that I have said, which I hope has provided some useful perspectives on this topic, I hope that the noble Baroness will feel comfortable in withdrawing her amendment.

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

My Lords, I have had a request to speak after the Minister from the noble Lord, Lord Sikka. I point out to him that we are almost out of time for this Committee tonight, and I ask him please to be as brief as possible.

[Lord Sikka (Lab) [V]]

My Lords, as we are pressed for time, I withdraw my intervention. I hope that I will make it another day.

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

We are grateful to you, Lord Sikka.

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

My Lords, I thank the Minister for his answer. He focused on the positive impacts of the financial sector and, when he came to addressing negative impacts, he talked a lot about risk. There is of course a lot of focus on risk at the moment with what is happening with Greensill and the shadow banking sector, but I do not believe that he really addressed the other negative impacts such as the diversion of human resources and capital. Indeed, when he was talking about the tax revenue, I thought that my PhD graduate from Newcastle would surely be working in some sector contributing in different ways.

The Minister perhaps misunderstood the issue of equality, so maybe I need to look at redrafting that. I referred to regional inequality and looked at socioeconomic and other areas of inequality.

I will speak briefly on the responses from others. The noble Baroness, Lady Kramer, pretty well said that she thought we should have exactly what I was proposing. She said that there were a great deal of resources in think tanks, academics and NGOs and that we needed to bring them together. That is exactly what is proposed in FSON—a network, not reinventing the wheel, not creating a whole new institution, but just making sure that those things are joined up and have a structure to work together to identify the crucial points.

The noble Lord, Lord Tunnicliffe, said that there were consultations on the way so we would have to wait but, with the risks—as the Minister acknowledged—and the costs of the financial sector, we really cannot wait. We have to act now. I have cited some very traditional, mainstream sources expressing great concern about the problems that the financial sector presents. We cannot have business as usual. As the noble Lord, Lord Sikka, said earlier, the cost of doing nothing is enormous. However, given where we are and the time of the evening—I have cut short my planned remarks significantly—I beg leave to withdraw my amendment, though I suspect I will bring this back on Report.

Amendment 123 withdrawn.

Amendments 124 to 131 not moved.

Amendment 132 had been withdrawn from the Marshalled List.

Amendments 133 to 136F not moved.

Clause 41 agreed.

Clause 42: Regulations

Amendment 137 not moved.

Clause 42 agreed.

Clauses 43 to 46 agreed.

Bill reported without amendment.

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

My Lords, that concludes the Committee’s proceedings on the Bill. I remind Members to sanitise their desks and chairs before leaving the Room.

Committee adjourned at 7.32 pm.

House of Lords

Wednesday 10th March 2021 Lords Chamber

Wednesday 10 March 2021

The House met in a hybrid proceeding.

12:00

Prayers—read by the Lord Bishop of Worcester.

Arrangement of Business

Wednesday 10th March 2021 Lords Chamber

Announcement

12:07

[The Senior Deputy Speaker (Lord McFall of Alcluith)]

My Lords, the Hybrid Sitting of the House will now begin. Some Members are here in the Chamber, while others are participating remotely, but all Members will be treated equally. I ask all Members to respect social distancing. If the capacity of the Chamber is exceeded, I will immediately adjourn the House. Oral Questions will now commence. Please can those asking supplementary questions keep them no longer than 30 seconds and confined to two points. I ask that Ministers’ answers are also brief.

Modern Foreign Languages: Teachers

Wednesday 10th March 2021 Lords Chamber

Question

12:08

Asked by

[Baroness Coussins]

To ask Her Majesty’s Government what assessment they have made of the supply chain of teachers of modern foreign languages.

[Baroness Coussins (CB)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and declare an interest as co-chair of the All-Party Parliamentary Group on Modern Languages.

[The Parliamentary Under-Secretary of State, Department for Education and Department for International Trade (Baroness Berridge) (Con)]

My Lords, we continue to monitor closely the modern foreign language—MFL—teacher supply and offer bursaries worth up to £10,000 tax free to encourage talented trainees into MFL. In 2020-21, there were 1,687 postgraduate trainees in MFL, an increase of 300 on the previous year and accounting for 72% of the annual target that we set for recruiting postgraduate trainee teachers. In 2019-20, 93% of MFL trainees gained qualified teacher status and 74% of them started teaching in state schools.

[Baroness Coussins (CB)]

My Lords, against that backdrop of a 28% shortfall and a drop of more than one-third in students doing MFL degrees since 2011, I congratulate the Government on their change of heart in deciding last week to add all MFL teachers to the shortage occupations list. This year’s small increase of 300 is by all accounts going to be temporary, so will the Government now also quickly reverse the dramatic cut in MFL training bursaries from £26,000 to only £10,000, as mentioned by the Minister? MFL is the only shortage subject to suffer such a cut.

[Baroness Berridge (Con)]

My Lords, we hope that the increase in trainees will be permanent, but unfortunately we have had to make some difficult financial decisions in relation to the ITT bursary offer. As a result, we are offering the highest bursaries for those subjects where it is hardest to attract people, which are STEM subjects, because those graduates can command higher wages in jobs outside teaching.

[Lord Judd (Lab) [V]]

My Lords, does the Minister agree that if we are to have any hope of fulfilling the role that our Prime Minister sees for us as a leading nation in the world, we cannot give too much investment, support and encouragement to the teaching of foreign languages? For commerce and trade, they are vital. Also important—and, in my experience, indispensable—is the terrific record built up in international institutions by those from Great Britain participating as translators and interpreters. It is a wonderful way of having friendships—

[The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)]

I am sorry to interrupt the noble Lord, but will he please ask his question?

[Baroness Berridge (Con)]

We agree with the noble Lord. As part of global Britain, we are encouraging the take-up of modern foreign languages. That is why they are included in the EBacc. We want schools to offer this to all students.

[Lord Austin of Dudley (Non-Afl) [V]]

My Lords, instead of dealing with different subject areas or areas of the curriculum in isolation or piecemeal, do we not need a serious, in-depth, cross-party inquiry that includes the teaching profession, business, educational experts and so on to work out what young people need to be taught and how they should learn it, to equip them for the modern economy, to open up opportunity, to promote social mobility and to enable our country to compete internationally?

[Baroness Berridge (Con)]

My Lords, we have looked at the curriculum over the past 10 years and we responded to the 2015 Ofsted review into the teaching and learning of modern foreign languages with a £4.8 million pedagogy hub to try to increase the standard of teaching of modern foreign languages.

[Baroness Hooper (Con)]

My Lords, given that Spanish is a world language—as trade envoy to three countries in Latin America, I am aware of the focus on the education sector—does my noble friend agree that in developing institutional links with schools and universities in Latin America we should encourage the reciprocal exchange of teachers in order not only to teach English in Latin America but to boost the teaching of Spanish in our schools?

[Baroness Berridge (Con)]

My Lords, due to the recent changes in our immigration law, teachers from Latin America will apply on a points-based system with the short-of-supply criterion on the same basis as everybody else. Through the Turing scheme, institutions, including schools, will be able to apply for funds to do that, but there is currently no arrangement for reciprocal teaching exchanges.

[Lord Flight (Con)]

My Lords, the volume of foreign language graduates has been on a declining trend for some time, thus reducing the supply chain of foreign language teachers. I believe that this trend is likely to continue and, as a result, the provision of modern foreign language degree courses will end up being confined to a limited number of universities specialising in this territory. Does the Minister agree?

[Baroness Berridge (Con)]

My Lords, as I outlined in the figures, we are seeing increasing numbers of those applying to teach in our schools. That is important for the supply chain and to make sure that there is good-quality teaching, as it is a requirement of the EBacc to take a modern foreign language. In addition to initial teacher training, there is now the early career framework —professional development support—for two years, so that this is seen as comparable to professions such as law and accountancy in those terms.

[Lord Harries of Pentregarth (CB) [V]]

The Erasmus programme has been a major driver in sustaining the recruitment of MFL trainee teachers. Will the Turing scheme match Erasmus by facilitating incoming students from the EU, as well as funding outward mobility?

[Baroness Berridge (Con)]

My Lords, the Turing scheme is backed by £110 million and we hope to reach 35,000 students. The funding is for those at UK institutions to travel abroad and we expect other countries to fund their students to do the same.

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

My Lords, the British Council’s 2018 annual learning trends survey showed that more than two-thirds of schools in the state sector and over 75% of private schools employed foreign language teachers who were citizens of EU countries and that the schools were fearful for the future supply and retention of such teachers. Will the Minister comment on what has been done since then and what the Government plan to do going forward to retain and encourage foreign language teachers to teach in the UK?

[Baroness Berridge (Con)]

My Lords, in relation to retention, I have outlined the early career framework, but there are now national professional qualifications. On average, teachers were awarded a 2.7% pay rise last year. As I have outlined, teachers from across the world can now apply on a points-based system to come here. We recognise that there is considerable uncertainty due to current restrictions on international travel.

[Lord Watson of Invergowrie (Lab)]

My Lords, the Minister stated in answer to the noble Baroness, Lady Coussins, that the slashing of bursaries for language trainees from £26,000 to £10,000 was the result of what she called “difficult financial decisions”. That cut makes no sense. The bursaries should have been retained as the result of an educational decision. There is a pattern here: the latest figures for the recruitment of language teachers showed that only 72% of the target was met, yet the DfE is ending its system of early career payments of up to £3,000, which were aimed at aiding teacher retention. As our distance from the EU grows, how can the Government justify making a career as a language teacher less attractive?

[Baroness Berridge (Con)]

My Lords, in relation to the applicants we have seen this year, modern foreign language teaching is an attractive option in our country. We had to make some difficult choices. STEM graduates command higher salaries outside the teaching sector, which was the justification for retaining a similar level of bursary for STEM as opposed to MFL. Other initial financial incentives, such as student loan reimbursements, are retained for those who are already part of the scheme, but they were ended for all—including STEM—graduates. There were difficult decisions to be made across the board.

[Baroness Janke (LD) [V]]

My Lords, whole cohorts of children have been denied the rich cultural experience of learning another language since modern foreign languages were discontinued from the national curriculum. What opportunities are the Government offering in further and higher education for adults who lost out on the opportunity to learn another modern foreign language?

[Baroness Berridge (Con)]

My Lords, in relation to further and higher education, I believe—I will double-check this—that there will be entitlement to some courses to get a first level 3 qualification. In relation to employer-led standards, such as for apprenticeships, if employers view that, for instance, there is a need for having Polish in a particular sector, they can include that in their requirements for the qualifications, working with the FE colleges. That will then be part of that qualification.

[The Senior Deputy Speaker (Lord McFall of Alcluith)]

My Lords, the time allowed for this Question has elapsed. We now come to the second Oral Question.

Covid-19: Women

Wednesday 10th March 2021 Lords Chamber

Question

12:19

Asked by

[Baroness Wilcox of Newport]

To ask Her Majesty’s Government what steps they are taking to ensure that (1) women, and (2) groups which represent women, are included in the development of their policies responding to the Covid-19 pandemic.

[The Parliamentary Under-Secretary of State, Department for Education and Department for International Trade (Baroness Berridge) (Con)]

My Lords, we continue to listen to the experiences of women as we respond to the Covid-19 crisis. Ministers and their officials carefully consider evidence on how different people have been affected by the pandemic. That includes meeting many women and the groups representing them. I recently met with women from Leicester and Leeds at virtual round tables to discuss home-schooling, childcare, flexible working and parents’ and children’s mental health.

[Baroness Wilcox of Newport (Lab) [V]]

The Commons report, Unequal Impact? Coronavirus and the Gendered Economic Impact, found that

“the Government’s priorities for recovery are heavily gendered in nature.”

A report published just this morning by the ONS on the differential impact of the coronavirus pandemic on men and women said:

“While more men died from Covid-19, women’s well-being was more negatively affected than men’s during the first year of the pandemic.”


Does the Minister agree that the Government must work harder at addressing this imbalance and that women, and the views of women, must be included in current policy development?

[Baroness Berridge (Con)]

My Lords, the effects of the pandemic are indeed differential across a number of factors. We have invested half a billion pounds in mental health services and recognise that women have taken on more responsibility in the home in terms of childcare and home-schooling, but, thankfully, schools are back as of Monday. We are looking closely at the data, to then analyse it. That will inform our policy development, as will, as I have outlined, meeting with women’s groups.

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

My Lords, in one of the reports to which the noble Baroness, Lady Wilcox, referred, the Women and Equalities Committee in the other place recommends

“a Gender Beneficiary Assessment of investments from the industrial strategy”,

which are currently going into areas that are well known to be male-dominated, and

“an economic growth assessment of the Women’s Budget Group’s care-led recovery proposals.”

Surely the Government must take these steps to understand the impacts of their policies.

[Baroness Berridge (Con)]

My Lords, the Government are looking at the data and have now got an equality data assessment based in the Cabinet Office. We have brought together the GEO with the disability and race units so that we have all the data to look at. The massive economic package and support that has been in place has benefited millions of women, and women are slightly less likely to be made redundant and slightly more likely to be furloughed.

[Baroness Chisholm of Owlpen (Con)]

My Lords, there is a sharp segregation in subjects chosen by both boys and girls at secondary and university level, with girls shunning STEM and technical subjects. What policies might the Government put in place so that we can look forward to an equitable outcome in the workplace?

[Baroness Berridge (Con)]

My Lords, it is a key focus of the recovery from the pandemic that we see high-skilled, high-productivity, high-wage jobs. We recognise that girls are less likely to take STEM subjects, so there has been a focus that has driven up the number of girls taking STEM A-levels in particular. I am happy to say that the specialist sixth form maths schools, as part of that outreach, must reach out to girls to ensure that there are more girls taking maths at A-level, and further maths, leading to higher-paid jobs.

[Baroness Prashar (CB) [V]]

The Unequal Impact? report by the House of Commons Women and Equalities Committee, which has already been mentioned, highlights the disproportionate impact of the pandemic on women and states that the schemes which have been put in place in response to the pandemic did not take account of the specific needs of women. It recommends an equality impact assessment of schemes and active analysis of equality impact for every future policy. What steps are the Government taking to implement these recommendations and the other 20 recommendations of this report?

[Baroness Berridge (Con)]

My Lords, there was an equality impact assessment of the Coronavirus Act and each government department, in relation to its legislative action, conducts an equality impact assessment of what they propose to enact. The various schemes, such as the Self-employment Income Support Scheme, have benefited millions of women. Although fewer women have benefited from that scheme, it is not out of proportion with the number of women in that sector. We are watching the data carefully.

[Baroness Helic (Con) [V]]

My Lords, high-quality data is crucial for understanding the impact of the pandemic on women and to develop a robust, evidence-led response. What steps have the Government taken to collect data consistently, disaggregated by sex, race, disability and other characteristics protected under the Equality Act 2010?

[Baroness Berridge (Con)]

My Lords, my noble friend is correct. We look at this data in terms of those protected characteristics, but we are looking beyond those as well, to look at, for instance, geographical disparities of effect. This collection of data, now centrally in the Cabinet Office, has led to certain reports, such as the second update, just over a week ago, on the effect of Covid on the health of black and minority ethnic populations in the UK.

[Baroness Hussein-Ece (LD) [V]]

My Lords, the gender-blind Covid policy-making that we have seen from the Government has not considered the needs of women and has resulted in disproportionate numbers losing their jobs—particularly in the retail sector—suffering domestic abuse, and their mental health and well-being suffering. What plans are in place for when furlough ends, when it will more likely be women who lose their jobs? With reports that many nurseries will not reopen, it will be even harder to get those mothers back into the workplace. If this is being addressed, what plans are being put in place to mitigate this?

[Baroness Berridge (Con)]

My Lords, there has been a dynamic response, particularly to the childcare requirements, which is why early years settings were still open during the third national lockdown. We have supported various charities that offer support to women, with investment grants of up to £10 million, and regarding the end of furlough, at the moment men are slightly more likely to be made redundant and women more likely to be furloughed, but we do not know what will happen when that transition ends.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, what specific meetings has my noble friend the Minister had with women and women representatives to discuss the economic impact of the pandemic? Does she share my concern that the thousands of jobs lost in retail have affected largely women, particularly young women, and the fact that older women are having to work for longer, possibly in part-time positions which does not make them eligible for holiday pay, sick pay or auto-enrolment in a pension, greatly disadvantages them?

[Baroness Berridge (Con)]

My Lords, I outlined in my original Answer two of the round tables that I have held. Additionally, I held a wonderful virtual meeting for National Apprenticeship Week with some women apprentices who were mainly in STEM roles. I have also met with the women’s youth council. We are looking at the impact, and in those sectors that my noble friend outlines, there has been significant economic support.

[Lord Bird (CB)]

The received wisdom increasingly is that you must be nearer to the problem to come up with something that makes it work better. With the SAGE committee being only 22% women, while we know that women will be hit harder and harder because of Covid-19, that women were caring for the children during home-schooling, and that it will hit women in the years to come, is it not possible to move forward the whole argument about women being involved in the decision-making and not leave it almost exclusively to a male world?

[Baroness Berridge (Con)]

My Lords, the increasing need for women to be represented at all levels of decision-making is taken as read by the Government. It has been pleasing to see that at the forefront of fighting the pandemic it has often been women, when you look at the NHS workforce and the education workforce. I can only pay tribute to those now household names, Sarah Gilbert and Kate Bingham, who have been at the forefront of developing the vaccine that we are so grateful for.

[Baroness Hodgson of Abinger (Con) [V]]

My Lords, older women are among the groups that have suffered most from this pandemic. Many live alone and have had to endure months of isolation as well as receiving very negative messages from the media. Can my noble friend the Minister tell me whether the Government have communicated and consulted with this group of women, and if so, how have this group of women been helped, especially with mental health issues?

[Baroness Berridge (Con)]

My Lords, I have outlined the increased funding that we have given to the NHS in relation to those budgets. The Government are aware that if those women were shielding then they will have been particularly affected. That is why one of the first things introduced during the first national lockdown, as we will remember, were bubbles, so that people such as the ladies that the noble Baroness has outlined were able to get some support. Then there was the development of the childcare bubbles, because we recognise that that cohort of women provides a lot of informal childcare.

[The Senior Deputy Speaker (Lord McFall of Alcluith)]

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

Global Navigation Satellite System

Wednesday 10th March 2021 Lords Chamber

Question

12:31

Asked by

[Lord West of Spithead]

To ask Her Majesty’s Government whether the design and development research for the United Kingdom Global Navigation Satellite System has been completed; and if not, what is the timeline for (1) the development of the requirements, and (2) the procurement, of that system.

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

My Lords, the space-based positioning, navigation and timing programme is one of the key programmes in the Government’s major projects portfolio. This underscores the importance of strengthening resilience for critical national infrastructure, given the wide use of PNT services. The UK’s requirements for trusted services will be confirmed in March as part of a national PNT strategy. In response to the strategy, the programme will identify in November a preferred space-based solution to improve our PNT resilience as part of a mix of technologies.

[Lord West of Spithead (Lab)]

My Lords, the outrageous behaviour of our European friends over the use of the Galileo system necessitates our going our own way, or in league with the Five Eyes community, our real friends, over the provision of additional GPS. Such a system is critical, as the Minister says, not just for defence and security but for a broad swathe of things in this country. There are real concerns over resilience. There is a great deal of confusion, misinformation and fake news swirling around about OneWeb. It is time to get clarity and a sense of urgency. Have we decided on the use of low-earth-orbit capabilities for a sovereign-based PNT system, also providing secure satellite communications, not least 5G connectivity?

[Lord Callanan (Con)]

I thank the noble Lord for his question. We have always been clear that the possible provision of PNT services was not the rationale for our investment in OneWeb. The programme is analysing a number of ideas for concepts in low earth orbit, and OneWeb is of course one of the many companies that are contributing to that.

[Lord Forsyth of Drumlean (Con) [V]]

My Lords, could my noble friend help me and explain why an independent space-based positioning, navigation and timing system is necessary, whether it is affordable and whether the investment in OneWeb is a practical and cost-effective means of delivering it?

[Lord Callanan (Con)]

I answered the point about OneWeb in the previous answer. That is not the rationale for our purchase of OneWeb. PNT services from space underpin all 13 critical national infrastructure sectors, including national security, defence and transport. They are an important component of future technologies such as autonomous vehicles, smart cities and so on, so it is essential that we have our own autonomous capability.

[Lord Ravensdale (CB)]

My Lords, there is increasing concern from the scientific community about the impact of large satellite constellations upon astronomical observations. What work is being done to address this aspect of the OneWeb constellation? Specifically, what measures are being considered in the satellite design and operation to reduce its albedo?

[Lord Callanan (Con)]

The noble Lord makes an important point. OneWeb has met the Royal Astronomical Society to discuss the potential impact of its operations on astronomy. We will continue to support that dialogue and wider engagement with the scientific community.

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, the Minister said that he was clear that OneWeb was not going to play a significant part in the PNT strategy—while at the same time saying how important that was —but he did not say what exactly it would be doing. Could he elaborate a little more on where he sees the focus of that £1 billion investment?

[Lord Callanan (Con)]

As I said in answer to the noble Lord, Lord West, we have been clear that the possible provision of PNT services was not the rationale for our investment in OneWeb. OneWeb is primarily a telecommunications operation and that is what its primary focus will be. However, we are not ruling out that it may play a role in future services to come.

[Lord Fox (LD)]

My Lords, the cost of OneWeb does not stop with the Government’s share of $1 billion. In order to complete the array, the chairman of Bharti Enterprises says that a further $2.5 billion will be required, for which the Government are on the hook for $600 million. Given that that has to happen soon, where in the Budget is that line for the Government’s investment, and what value are UK taxpayers going to get from that huge amount of money?

[Lord Callanan (Con)]

We will be setting out a strategy for OneWeb in the future. We have made an investment in OneWeb and we are looking for alternative sources of finance to come.

[Lord Lennie (Lab) [V]]

Following on from the questions from my noble friends Lord West and Lord Stevenson, does OneWeb have a proven PNT capability? How is the Cabinet Office-led review progressing, who is being consulted and when will its findings be published?

[Lord Callanan (Con)]

That is the third time that this question has been asked. Government investment in OneWeb was for cutting-edge telecommunications capability based on market analysis. We have always been clear that PNT services were not the rationale for this particular investment.

[Lord Lancaster of Kimbolton (Con)]

My Lords, this is an ambitious project, but I cannot help but feel that, on a cost basis alone, it is one that is best pursued with our allies, perhaps the Five Eyes community. There is no doubt that we have an enormous amount to offer, not just the skills that we hold here in the United Kingdom, but does my noble friend agree that the strategic location of some of our overseas territories in the southern hemisphere will make us very attractive partners?

[Lord Callanan (Con)]

Indeed. I know that my noble friend has great experience in these matters. Collaboration with partners and industry will be vital for success in this field. A new UK capability could offer opportunities to deliver more on global Britain through strengthening our international relationships. We would most likely seek to use our overseas territories for ground-based stations.

[Baroness Wheatcroft (CB) [V]]

My Lords, it is highly regrettable that our Brexit negotiations failed to secure a deal over Galileo. Are there any plans to try to revisit that and negotiate a deal, rather than ploughing our own course? Could the Minister also tell us about the National Space Council, which was announced in June 2019? How often has it met? Was it consulted over the purchase, which others have mentioned, of OneWeb, which was done against the advice of the Civil Service?

[Lord Callanan (Con)]

The answer to the noble Baroness’s first question is no. The UK National Space Council, chaired by the Prime Minister, will continue to play an important role in future government affairs.

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

My Lords, I refer to my interests in the register. The Blackett review into critical dependency on the GNSS was published in January 2018. What progress has been made on the review’s first recommendation that operators of this critical national infrastructure should report on how vulnerable their systems are to a failure or interruption of the GNSS network? The Cabinet Office was tasked with assessing our overall dependency on these systems. When will this be published, along with an action plan to remedy any weaknesses and the proposals for back-up systems called for by Oliver Dowden, then the Cabinet Office Minister?

[Lord Callanan (Con)]

The UK PNT strategy group is developing the UK’s first national PNT strategy, which includes a review of critical dependencies and actions. Decisions on the publication of the strategy and leadership for implementation are subject to a wider review of PNT governance being led by the Cabinet Office.

[Lord Campbell of Pittenweem (LD)]

My Lords, the Government paid £400 million for a minority interest in a failing company whose satellites, as we have heard, are for communication, not navigation. What kind of investment was that?

[Lord Callanan (Con)]

I outlined in answer to three other questions the rationale for our investment in OneWeb.

[Lord Walney (Non-Afl)]

Further to what a number of speakers today have said, could the Minister clarify whether the Government are pursuing a formal partnership with our Five Eyes allies? Would that not be a good idea for our long-term security?

[Lord Callanan (Con)]

That is indeed one of the points that are being considered in the review, which will be reporting at the end of March. We will then outline a business case and, if there can be collaboration with our Five Eyes partners, I am sure we would want to go down that route.

[The Senior Deputy Speaker (Lord McFall of Alcluith)]

My Lords, all supplementary questions have been asked.

Myanmar: Protesters

Wednesday 10th March 2021 Lords Chamber

Question

12:39

Asked by

[Baroness Cox]

To ask Her Majesty’s Government what assessment they have made of the use of force by the Myanmar military against protesters in that country.

[The Minister of State, Foreign, Commonwealth and Development Office (Lord Ahmad of Wimbledon) (Con)]

My Lords, we are deeply concerned by the ongoing use of force against peaceful protesters. The situation in Myanmar has deteriorated significantly over the last few weeks and we have been clear, including through the G7 and the UN Security Council, that the violent crackdown must end. I am sure I speak for all in your Lordships’ House when I say that our thoughts go to all those families and people who have lost their lives—and their wives—protesting against this coup.

[Baroness Cox (CB) [V]]

My Lords, I greatly appreciate the Minister’s condemnation of the military’s reign of terror, which includes the imprisonment of democratically elected political leaders and the shooting of civilian protesters. Does he agree with Burma’s newly appointed special envoy to the United Nations, Dr Sasa, that the crisis is now so severe that it requires a much more robust response from the UK? Will Her Majesty’s Government therefore urge the UN Secretary-General to initiate an immediate Security Council visit to Burma, and to galvanise international pressure on the military leaders to reinstate the democratically elected Government?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I assure the noble Baroness that at the UN, during both our presidency and the current US presidency, we have already convened meetings. A statement has yet to be agreed, but the focus of the Security Council is very much on the situation on the ground. The noble Baroness mentioned Dr Sasa, who is well known in this country; he will always be an important voice. A mission to Myanmar would be a decision for the SG, but of course we are working closely with his office.

[Baroness Nye (Lab) [V]]

My Lords, the Burma Campaign UK, in which I declare an interest as a board member, is receiving increasingly desperate calls from the brave activists in Burma who do not understand why there is not more concerted international action. Does the Minister agree that if the UK Government formally supported the Gambia in its ICJ case against Myanmar, it would be a strong signal that we are not ignoring the awful events unfolding in Burma and that there is no impunity for the crimes of the Tatmadaw?

[Lord Ahmad of Wimbledon (Con)]

My Lords, on the noble Baroness’s substantive point about the ICJ, we are reviewing the situation. We are supportive of the action of the Gambia and looking at interventions where they will best serve the purpose of the people of Myanmar. On international action, we have secured two G7 statements and are working through the UN Security Council and with partners such as the US and Canada, as well as those in the region, to ensure that there is international condemnation and that the focus continues.

[Baroness Northover (LD)]

My Lords, what action are the Government taking with our allies, especially the EU and the Five Eyes, to place effective sanctions on those running military companies that are still doing business with the military in Myanmar?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I assure the noble Baroness that we are working closely with our allies. She will have noticed the nine individuals who have been sanctioned recently, in addition to the 16 who already were. She makes a very valid point about the companies, particularly those linked to the military. We are focused on that and future sanctions policy will be part of that consideration.

[Lord Sarfraz (Con)]

My Lords, several diplomats from Myanmar are now making the brave choice to speak out against the violence. Can my noble friend the Minister tell the House what status and protection is awarded to these diplomats, and what the Government’s position is on CDC’s investments in the country?

[Lord Ahmad of Wimbledon (Con)]

My Lords, on my noble friend’s second point, we are currently reviewing all our trade because of the situation on the ground in Myanmar, and certainly not continuing it until such time as we see democracy restored. On the point about the ambassadors and others, at the UN and here in the UK, I stand for their courage and bravery—I am sure I speak for everyone in your Lordships’ House in that. They continue to represent the people of Myanmar in this country and elsewhere.

[Lord Alton of Liverpool (CB)]

My Lords, I declare an interest as vice-chair of the All-Party Parliamentary Group on Democracy in Burma. Can I return the Minister for a moment to the question from my noble friend Lady Cox, specifically calling for a high-level United Nations Secretary-General-led visit to the region and ask whether he will press that? On the question by the noble Lord, Lord Sarfraz, will the Minister look particularly at the nonrecognition of the credentials of the junta’s appointees to the United Nations and to the Court of St James in the United Kingdom?

[Lord Ahmad of Wimbledon (Con)]

My Lords, on the noble Lord’s second point, I have already said that the current ambassador to the UN and the ambassador to the Court of St James continue to be the representatives of Myanmar in this country and at the UN. On the high-level visit, as I have said before, we are working through the Security Council and I will update noble Lords accordingly.

[Lord Collins of Highbury (Lab)]

My Lords, I was pleased that the United Kingdom promoted a draft Security Council resolution this week, but disappointed that no consensus has yet been reached. What steps will the United Kingdom now take, within the Security Council and with allies, and will they include building a coalition of countries to impose a global arms embargo? Can the Minister provide an assurance that United Kingdom businesses are no longer trading with military-owned companies?

[Lord Ahmad of Wimbledon (Con)]

My Lords, on the noble Lord’s second point, I have already spoken of the sanctions that we have taken against military individuals. We are looking at companies specifically to target those with military links within Myanmar itself, and advising British business appropriately. On building international coalitions, I believe I have already answered that question, but we are also strengthening our alliances, including at the Human Rights Council.

[Lord Hussain (LD)]

My Lords, while the whole world’s attention is drawn to the clashes between the military junta and the pro-democracy protesters in Myanmar, what is our Government’s latest assessment of the safety and security of the ethnic Rohingya community, which has suffered genocide and forced migration during the previous military rule in Myanmar?

[Lord Ahmad of Wimbledon (Con)]

The noble Lord is quite right to draw the House’s attention to the situation and the continuing challenges, including the discrimination towards and persecution of the Rohingya community within Myanmar and the suffering that continues, including for those who have managed to escape to Bangladesh. The support we offer them is a key priority for us and we continue to work with international authorities for their safe and voluntary return. However, the situation in Myanmar is dire at the moment, not just for them but for everyone.

[The Lord Bishop of St Albans [V]]

Is the Minister aware that in addition to the military’s crackdown on protesters, military offensives are taking place in northern Shan, Kachin and Karen states, causing the mass displacement of civilians? What are Her Majesty’s Government doing to ensure the protection of these civilians and to allow for urgent humanitarian assistance to reach them?

[Lord Ahmad of Wimbledon (Con)]

My Lords, the right reverend Prelate again brings the focus on to the humanitarian assistance. I assure your Lordships’ House that we are working—not through government agencies but through international NGOs—to ensure that those corridors of humanitarian assistance can be kept open. But we have seen an uptick in violence being perpetrated against protesters in Myanmar. Particularly worrying are the recent actions taken by the military and security forces during the night.

[Lord Marlesford (Con) [V]]

My Lords, did HMG note the piece in the 13 November issue of China Daily, welcoming the renewed mandate of Aung San Suu Kyi and her success in the election, and quoting President Xi Jinping as having said:

“China supports Myanmar following the development path of its own choice and is ready to consolidate and deepen the friendship between the two countries”?


Do my noble friend and Her Majesty’s Government believe that China could have a role in the ending of military rule and restoring Aung San Suu Kyi’s National League for Democracy to government?

[Lord Ahmad of Wimbledon (Con)]

My Lords, I totally agree with my noble friend: China has an important role. The statement that he quoted is of course welcome. Equally, referring to the question raised by the noble Lord, Lord Hussain, China’s intervention in resolving the situation for the Rohingya is also an important part of finding a lasting solution for all in Myanmar and in the region.

[Lord Berkeley of Knighton (CB) [V]]

My Lords, does the Minister consider that recent events in Myanmar go some way to explaining the otherwise rather inexplicable behaviour of Aung San Suu Kyi in terms of the persecution of the Rohingya Muslims?

[Lord Ahmad of Wimbledon (Con)]

My Lords, during Aung San Suu Kyi’s leadership of Myanmar, we continued to raise the issue of the Rohingya community and will continue to do so. It is important that lessons are learned from the past, and we hope that democracy will return so that we can look specifically at the plight of the Rohingya community as well as others.

[Lord Dubs (Lab) [V]]

My Lords, will the Government say clearly that the real difficulty is the attitude of China, notwithstanding the quotation from the China Daily that we just heard, and that if the Chinese Government were adamant that they were going to shift the military dictatorship, then it would happen? Is not the truth that they are holding up progress at the UN Security Council?

[Lord Ahmad of Wimbledon (Con)]

My Lords, the role of China in the context of the region and, as the noble Lord rightly points out, on the UN Security Council, is an important one. I assure the noble Lord, as well as your Lordships’ House, that we will continue to engage with China to find a resolution to the restoration of democracy in Myanmar and a long-term solution for the safe, voluntary and dignified return of the Rohingya community.

[The Senior Deputy Speaker (Lord McFall of Alcluith)]

My Lords, all supplementary questions have been asked.

12:50

Sitting suspended.

Arrangement of Business

Wednesday 10th March 2021 Lords Chamber

Announcement

13:00

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

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

Northern Ireland Protocol: Grace Period

Wednesday 10th March 2021 Lords Chamber

Private Notice Question

13:00

Asked by

[Lord Caine]

To ask Her Majesty’s Government what assessment they have made of the response of the European Union to the United Kingdom’s decision to extend until October the grace period for checks on certain goods moving from Great Britain to Northern Ireland.

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

My Lords, we have noted the position set out by Vice-President Šefčovič in his statement on 3 March about the limited and temporary operational measures the Government announced last week. These measures are lawful and consistent with the progressive and good faith interpretation of the Northern Ireland protocol. We will carefully consider any further steps the Commission decides it needs to take.

[Lord Caine (Con)]

My Lords, I warmly welcome my noble friend to the Front Bench and congratulate him on his appointment. I strongly support the actions taken by the Government in recent days as a necessary, proportionate and lawful response to the situation in which we currently find ourselves. Does my noble friend agree that the somewhat hysterical reaction of the EU yet again demonstrates its one-sided inability to recognise legitimate unionist concerns and to see the Belfast agreement through all of its strands—an agreement that its intransigence now threatens to undermine? In addition, can my noble friend assure me that this unionist Government will robustly defend any legal actions brought by the EU and that they will take whatever measures are necessary to guarantee Northern Ireland’s place as an integral part of the UK internal market?

[Lord Frost (Con)]

I thank my noble friend for his words of support for the decisions taken by the Government last week. Our overriding aim is to protect the Belfast/Good Friday agreement in all its dimensions—all the strands, north-south and east-west. The protocol was designed to achieve this. All sides need to be sensitive to the social and political realities, and the fact that the operation of the protocol rests on the confidence of both communities in Northern Ireland. I reassure my noble friend that we will consider any legal process launched by the EU very carefully; we will defend our position vigorously. The protocol is explicit in respecting the territorial integrity of the UK and we will ensure that is sustained.

[Lord Adonis (Lab)]

My Lords, I join in very warmly welcoming the noble Lord to the House. Does he accept that behind this trade crisis in Northern Ireland is his own hostility to the European Union? He has taken Britain out of the customs union and single market and therefore necessitated these trade controls. Is he aware that Margaret Thatcher, who largely created the single market, said:

“How we meet the challenge of the Single Market will be a major factor, possibly the major factor, in our competitive position in European and world markets into the twenty-first century. Getting it right needs a partnership between government and business”?


Does the noble Lord agree with Lady Thatcher?

[Lord Frost (Con)]

I thank the noble Lord for his question. We developed a model of Brexit and implemented it on the back of the election victory in December 2019, which is about leaving the customs union and single market. We believe that the United Kingdom will benefit from control of its own laws, trade policy and money. That situation will give us benefits. We would like a constructive relationship with the European Union and I will be working to ensure that happens.

[Lord Purvis of Tweed (LD)]

My Lords, I also welcome the noble Lord to the Dispatch Box. We knew that businesses which export out of the UK to the EU required an HMRC EORI number, but now businesses need a Northern Ireland EORI number to trade internally in the UK with Northern Ireland. The noble Lord, Lord Grimstone, stated in a letter to me on 11 February that, of the 770,000 trading businesses in the UK, only 58,000 have a Northern Ireland XI EORI number. Why would businesses in the UK require export registrations to trade with other parts of the UK? If there is unfettered trade within the UK, why do only 12% of UK businesses currently have the capability to trade with Northern Ireland?

[Lord Frost (Con)]

This Government are working extremely hard to ensure the fair and free flow of trade between Great Britain and Northern Ireland. We have provided more than £200 million to support businesses through the trader support service and processed declarations for over 200,000 consignments. Some 34,000 businesses are registered and 98% of declarations are handled within 15 minutes. An EORI number is part of the requirement to trade now that we have left the customs union, but we are doing our utmost to ensure the free flow of trade between Great Britain and Northern Ireland as the protocol requires.

[Lord Birt (CB) [V]]

My Lords, I was heavily exposed to the Troubles across the whole span of my broadcasting career, so I am particularly alert to the delicacy of the current situation in Northern Ireland. The Governments of John Major and Tony Blair invested enormous political capital in resolving the tensions there. Will this Government?

[Lord Frost (Con)]

I thank the noble Lord for his question. Our overriding aim is to protect the peace process in Northern Ireland and the Belfast/Good Friday agreement. That is an avowed and primary purpose of the Northern Ireland protocol. As we implement the protocol in a pragmatic and proportionate way, we do so very mindful of the considerations he has in mind and protecting all aspects of the peace process.

[Lord Hannan of Kingsclere (Con)]

My Lords, temporary derogations, waivers or exemptions are by definition not a long-term solution to the problems intrinsic in the protocol. Will my noble friend the Minister address the asymmetry—the absurdity—at the heart of the protocol: its contention that checks on goods between Northern Ireland and the Republic of Ireland undermine the Good Friday agreement and may even jeopardise peace, but checks between Northern Ireland and Great Britain have no such consequences?

[Lord Frost (Con)]

My noble friend makes a very good point. The protocol was designed to deal with the very complex reality to which he alludes. It needs to be implemented in a way that takes account of all the strands of the Good Friday agreement—east-west as well as north-south—and enables cross-community consent for those arrangements to be sustained. That means that the smooth flow of trade between Great Britain and Northern Ireland needs to be preserved, as well as an open border between Northern Ireland and Ireland.

[The Earl of Kinnoull (Non-Afl)]

I also congratulate the Minister on his new appointment and thank him for engaging afresh with the EU Committee in his new capacity. How was the joint committee apparatus, including the joint consultative working group on the withdrawal agreement, used to discuss and disseminate the Government’s decision on grace periods before its announcement? Further, given the furore, if they had their time again, would they have played things differently?

[Lord Frost (Con)]

I thank the noble Earl for his question, and I look forward to appearing before his committee again in the near future. We have been working through the joint committee mechanisms since the beginning of the year and before. The measures taken last week were operational, technical and temporary. We informed the Commission of those through the appropriate channels and at the appropriate level before the decision was made public.

[Baroness Smith of Basildon (Lab)]

My Lords, I think we all welcome that the noble Lord, Lord Frost, is now able to answer Questions from the Dispatch Box and we look forward to an ongoing dialogue with him about his Cabinet responsibilities. His role in the negotiations has been credited with getting the agreement and the Northern Ireland protocol over the line. He would have been aware then of all the implications. Given that he supported the creation of, and now co-chairs, the Joint Committees he has referred to, which are designed to resolve such disputes, would not the most mature and pragmatic way to deal with this issue be to continue with that process? Does he understand that the unilateral action he is championing is a double threat? It jeopardises the European Parliament’s ratification of his own agreement and damages our international reputation if we cannot be trusted to keep our word.

[Lord Frost (Con)]

I thank the Baroness and I look forward to answering many more Questions from this Dispatch Box about our approach to the relationship with the European Union. We would like to see a constructive relationship with the European Union in future. The difficulty we are faced with this year is that the EU’s decision to invoke Article 16 in Northern Ireland has created a new and very difficult situation that has undermined cross-community confidence and we have been trying to deal with that. We would like to do so in a constructive and consensual way but we also have to have to regard to the situation and the need to maintain confidence and consent across both communities in Northern Ireland.

[Baroness Suttie (LD) [V]]

My Lords, I also welcome the Minister to the Dispatch Box. Can he confirm exactly how and when the Irish Government were informed about the decision unilaterally to extend the grace period?

[Lord Frost (Con)]

My Lords, I thank the noble Baroness for her question. We do not go into the detail of diplomatic communications at the highest level but I can confirm that the Irish Government were informed of this decision before it was made public by my right honourable friend the Secretary of State for Northern Ireland on 3 March.

[Lord Kilclooney (CB)]

My Lords, likewise, I welcome the noble Lord to his position at the Dispatch Box. As one living near the border between the Republic of Ireland and the United Kingdom, and as a former MEP, I am very conscious that border issues can destabilise Northern Ireland. I am disappointed that the European Union does not recognise that. I am even more disappointed that the House of Lords European Union Committee did not recognise the tensions and trading problems that the protocol would create. Today the Vice-President of the European Commission, Šefčovič, is addressing the friends of the Republic of Ireland in the Congress in Washington. I hope he will ensure that he gets a report from our embassy in America on what is said. In so far as the future is concerned—

[A noble Lord]

Question!

[Lord Kilclooney (CB)]

My question is this. In so far as the future is concerned, there must be agreement between the United Kingdom and the European Union. Will the Government ensure that the common travel area will be secured, that all three strands of the Belfast agreement will be supported and that the sovereignty of the United Kingdom will extend throughout Northern Ireland?

[Lord Frost (Con)]

My Lords, I thank the noble Lord for his question. I agree very much that all sides must be sensitive to the social and political realities in Northern Ireland and to the need for the consent of both communities if it is to work effectively. Our actions have been aimed at restoring that confidence. Indeed, I can reassure the noble Lord that we will protect the common travel area—which is specifically protected in the protocol—but our overriding aim is to protect the Belfast/Good Friday agreement and the territorial integrity of the UK. Northern Ireland’s place in the customs union and single market will be protected.

[Lord Dobbs (Con) [V]]

My Lords, I add my congratulations to my noble friend and wish him well in the task that lies ahead. Following on from the questions of my noble friends Lord Caine and Lord Hannan of Kingsclere, can he tell me—I fear I may be a little simple and he will have to be patient with me —what evidence has been put forward by those who insist that checks on goods crossing the land mass of Ireland undermine the prospects of peace while, by contrast, checks on goods crossing the Irish Sea do not? Can he explain why Brussels can simply stop trade in vital goods such as vaccines to Northern Ireland, but threatens us for doing business with our own people? Am I simple or is it all a rotten case of double standards?

[Lord Frost (Con)]

My Lords, my noble friend makes a very acute observation about the situation. As I have noted, the protocol must be implemented in a way that takes account of all strands of the Good Friday agreement—that is, east-west as well as north-south. The EU’s decision to activate Article 16 in January, however briefly, has compounded the difficulties and severely shaken confidence. We would obviously prefer it if the EU would reckon with the situation it has created and work with us to ensure that trade can flow in all directions, including to Northern Ireland, in a free and fair manner.

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

My Lords, further to the question from my noble friend Lady Smith, does the Minister not now regret taking unilateral action against an agreement which he was party to? Does he not worry that no one will accept or trust his word ever again?

[Lord Frost (Con)]

My Lords, there were already challenges in the operation of the protocol in early January this year and they were already having a direct and disproportionate impact on citizens in Northern Ireland. The EU’s decision to invoke Article 16 compounded the difficulties and undermined cross-community confidence. Our actions have been aimed at restoring confidence and minimising disruption to the everyday life of people in Northern Ireland. That is what this Government will work to ensure.

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

My Lords, I am afraid that the time allowed for this Question has now elapsed. My apologies to the noble Lord, Lord Kerr, and the noble Baroness, Lady Altmann.

I am going to take a moment or two to allow the Chamber to clear a bit before we move on to the next business. There is a moment or two for you to shuffle out.

I think everyone has now shuffled. We now come to the Motion in the name of the Senior Deputy Speaker.

House of Lords Commission

Wednesday 10th March 2021 Lords Chamber

Motion to Agree

13:18

Moved by

[The Senior Deputy Speaker]

That the Report from the House of Lords Commission Access and use of facilities by retired members be agreed to (2nd Report, HL Paper 233).

[The Senior Deputy Speaker (Lord McFall of Alcluith)]

My Lords, this report addresses an anomaly in the treatment of Members who retire before they are suspended or expelled from the House. The issue is simple. When a Member retires from the House, the House has agreed that they should enjoy certain privileges. These include a parliamentary pass, access to the Chamber and the ability to use, and bring guests to, certain catering facilities. When a Member is suspended or expelled their pass is revoked and they cannot access the estate or the services of the House.

In recent times, some Members facing suspension or expulsion have retired before the House approved such a sanction. The default position is that Members in this position enjoy all the usual privileges of a retired Member. The House of Lords Commission has, on a case-by-case basis, agreed to remove these rights. However, this ad-hoc approach can lead to delay and uncertainty for the House and its staff about the rights available for such Members.

To address this, it is proposed that the removal of retired Members’ rights in these circumstances should be automatic upon the House agreeing the Conduct Committee’s report. In the case of a recommendation to suspend, the removal of rights would last for the duration of the proposed suspension but the commission may agree a longer period in exceptional circumstances. If the recommendation was to expel the Member, the removal of rights would be permanent. This would ensure a consistent approach and provide certainty to Members, staff and others on the estate. I beg to move.

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

One individual has requested to speak: the noble Lord, Lord Balfe, whom I now call.

[Lord Balfe (Con)]

I will put one or two questions to the Senior Deputy Speaker. I realise that it would be foolish to try to divide the House because it is a unanimous report by everyone who counts in the place. However, paragraph 5, on Members who are “suspended or expelled”, begins:

“Members who lose their membership as a result of non-attendance”.


Non-attendance is being neither suspended nor expelled. What attempts, if any, are made to discover why people are not attending? In particular, I have in mind a situation where someone is ill and it falls off the horizon. For instance, if someone had a stroke and was in hospital, does anyone try to check why non-attendance happens, and is the Member given any warning that his or her non- attendance is about to lead to the suspension of rights?

Even if they are, if you lose your seat as result of non-attendance, surely it is a little different from “a sentence of imprisonment” or being “expelled or suspended”, as paragraph 5 continues. I see no reason, other than an exceptional one, why people who lose their seat because of non-attendance should be effectively banished from the estate.

Secondly, on the “practical consequences” of expulsion or suspension, paragraph 6(b) says that

“the Member may not enter the House of Lords Estate as the guest of another Member or otherwise”.

This is surely a bit over the top. We recently suspended the membership of the noble Lord, Lord Maginnis. He and I agree on virtually nothing, in our social views of the world, but I respect his work in Northern Cyprus, particularly in standing up for the many soldiers in British uniform killed during the troubles in Cyprus. As such, I regard him as a friend whom I totally disagree with on a lot of things, but I am really quite shocked that I cannot even bring him into the place for a cup of tea; this seems over the top and an infringement on individual Members’ rights.

However, it is not only that. Has it been legally checked that we can stop a member of the public—that is what they are—coming to the Gallery to watch a debate? Do we have the right to single out citizens of the United Kingdom to be barred from Parliament? I would like an assurance that legal efforts will be put into dealing with that.

I repeat my concern that the way in which this disciplinary procedure is working is unsatisfactory. There is no opportunity for any sort of public input: things are just put to the vote, and, of course, the vote is carried. I would like a review of the whole process to see whether natural justice is fulfilled. I suspect that, if anyone ever went to judicial review, they would probably win, due to the way in which this is structured. I look again at the case of the noble Lord, Lord Maginnis: the parliamentary commissioner suggested a sanction that the committee, without giving any reasons, promptly doubled. This is not transparent and not the way to run the place, in my view.

As such, I ask the Senior Deputy Speaker to look at these things. I will not press this to a vote because, apart from anything else, I would lose—but it needs looking at. We need to consider very carefully how we deal with these issues. In particular, mixing up non-attendance with a term of imprisonment shows that whoever wrote the report is not filled with kindness, whatever else they may have.

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

I have received a request to speak from the noble Baroness, Lady Smith of Basildon, whom I now call.

[Baroness Smith of Basildon (Lab)]

I have a question. I am sure the noble Lord, Lord McFall, will be able to deal with the issues raised by the noble Lord, Lord Balfe, but I wonder whether the latter was slightly confused in his comments. What is before us today, as I understand it—perhaps the noble Lord, Lord McFall, could confirm this—is not the issues raised around Members who have been suspended or expelled in the past but whether it is appropriate that those Members who seek to retire early should be treated in the same way as other Members who have been expelled or suspended from your Lordships’ House.

As such, it is not that the points he raised were wrong, but they are not relevant to the decision before us today, which looks only at whether Members who retire because they are facing investigation or sanction from the Conduct Committee should not be treated differently but should be subject to the same sanctions.

I will raise one point about those Members who lose their membership as a result of non-attendance. Obviously, this has been a difficult Session for some Members, but my understanding is that the Clerk of the Parliaments and all the individual groups have contacted several times any Members who may have been affected by that—and that they have co-operated with them in terms of their membership of the House. No one wants to see someone leave, or be automatically suspended from, the House just because of the current Covid situation. My understanding, which the Senior Deputy Speaker can confirm, is that this has been addressed by both the Clerk of the Parliaments and individual group leaders and Whips.

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

There being no one else present in the Chamber who wishes to speak, I now call the Senior Deputy Speaker.

[The Senior Deputy Speaker (Lord McFall of Alcluith)]

I thank the noble Lord, Lord Balfe, and the noble Baroness, Lady Smith, for their questions. On the issue of the commission removing rights from Members, we had two cases when I chaired the Procedure and Privileges Committee: first, that of Lord Lester of Herne Hill and, secondly, that of Lord Ahmed in December 2020. The cases were recorded in the public minutes of the commission, but there was a sanction pending and the Members retired, and it was with that in mind that we addressed that particular position. As such, the noble Baroness is correct on that point.

On the first point made by the noble Lord, Lord Balfe, about the House authorities notifying Members who may be at risk of losing their membership through non-attendance, yes, the House authorities work with the usual channels to do this. Information is given at that time, so he need not worry that an arbitrary decision may be made with no one knowing about it. Indeed, this would come to my office at some stage, and I engage regularly—at least every month—with all the usual channels, be it the Leader’s Office or the Chief Whips. This issue would come up if that was pending.

The answer to his second point—whether Members covered by the provisions in the report can still attend the Palace as guests of another Member—is no: the House Committee decided that Members who are suspended or expelled should not attend the House as the guest of another Member. I am sure that the legality of that has been checked but, just to reassure the noble Lord, I will take that back and write to him on that point.

Lastly, on the point about whether the provisions in the report capture those Members whose membership is ended by virtue of non-attendance over the full course of a Session, my answer is no: this applies only to Members sanctioned by the Conduct Committee. However, the noble Lord will be aware that Members who cease to be so because they do not attend the House during the Session do not have the privileges of a retired Member.

I hope that answers the questions, but if any issues have been left hanging, I will certainly respond in writing to the noble Lords.

Motion agreed.

Domestic Abuse Bill

Report stage
Wednesday 10th March 2021 Lords Chamber

Report (2nd Day)

13:30

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

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

My Lords, 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. Participants who might wish to press an amendment other than the lead amendment in the group to a Division must give notice in the debate or by emailing the clerk. Leave should be given to withdraw amendments. When putting the Question, I will collect voices in the Chamber only. If a Member taking part remotely wants their voice accounted for, if the Question is put, they must make this clear when speaking to the group.

Amendment 17

Moved by

[Baroness Williams of Trafford]

17: After Clause 18, insert the following new Clause—
“Duty to report on domestic abuse services in England
(1) The Commissioner must, before the end of the relevant period, prepare and publish a report under section 8 on—(a) the need for domestic abuse services in England, and(b) the provision of such services. (2) But subsection (1) does not require the Commissioner to report on the need for, or provision of, services provided to people who reside in relevant accommodation (within the meaning of section 55(2)).(3) In subsection (1)—“domestic abuse services” means any advice, advocacy or counselling services provided, in relation to domestic abuse, to victims of domestic abuse or their children;“the relevant period” means the period of 12 months beginning with the day on which this section comes into force (but see subsection (4)).(4) The Secretary of State, with the agreement of the Commissioner, may by regulations extend the relevant period for a further period of up to 6 months.(5) The power conferred by subsection (4) may be exercised only once.”Member’s explanatory statement
This new Clause requires the Domestic Abuse Commissioner to prepare and publish a report on the need for certain domestic abuse services in England and the provision of such services. The report must be published no later than 12 months after this new Clause comes into force.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, this group of amendments brings us back to the provision of community-based support for victims of domestic abuse and their children. I share the ambition of my noble friend Lord Polak, the noble Lords, Lord Hunt and Lord Rosser, and all noble Lords to ensure that domestic abuse victims receive the support that they need, regardless of where they reside. The provisions in Part 4 of the Bill, which relate to the provision of support within safe accommodation, are a major step towards meeting that goal.

The issue before us is whether we can and should now be legislating for a parallel duty in respect of community-based support, whether by extending the provisions in Part 4, as Amendment 31 seeks to do, or by making freestanding provision, as in Amendment 85. The Government remain firmly of the view that the necessary groundwork for such legislation has yet to be undertaken and, accordingly, that it would be premature to legislate in this Bill by either method.

I can see the attraction of Amendment 31, put forward by the noble Lord, Lord Hunt. It seemingly accepts the government argument that we do not yet know how we should frame the duty in respect of community-based support, so a regulation-making power affords a mechanism to come back to this once the domestic abuse commissioner has completed her mapping work and the Government have consulted.

Let me make a couple of observations about Amendment 31. First, your Lordships’ House and the Delegated Powers and Regulatory Reform Committee are regularly critical of the Government for coming forward with skeletal delegated powers such as in the amendment. The framework for the provision of safe accommodation support is on the face of the Bill and it is right that any parallel duty in respect of community-based support should also be set out in primary legislation. Secondly, even if the route of delegated legislation was, in principle, an acceptable way forward, until we have developed and consulted on a scheme for that provision of community-based support, we simply do not know how properly to frame a regulation-making power to ensure that we have the necessary vires to give effect to a set of proposals post-consultation. The landscape for the provision of community-based support is more complex than that in respect of safe accommodation- based support, as Amendment 85 recognises, so a power simply to extend the provisions of Part 4 is not, in our view, the right approach.

Amendment 85, put forward by the noble Lord, Lord Rosser, and in Committee by my noble friend, seeks to navigate the complexities of the current provision of community-based support by placing a new duty on local authorities in England, local policing bodies in England and Wales and clinical commissioning groups in England. This may or may not be the right approach, but I do not think that we are in a position to make that judgement yet. If the duty is to be split three ways, we need to know how the discharge of the duty is to be co-ordinated between the three agencies to ensure that there is not overlapping provision or that support for some victims does not slip through the cracks. In applying the duty across three agencies, Amendment 85 risks creating an environment in which accountability is unclear, presenting challenges for all bodies in ensuring that the necessary services are provided to those who need them.

It is the Government’s clear view that there are no ready-made solutions such that we would be in a position to legislate here and now. We need to better understand the existing landscape and the gap in provision, which is why the domestic abuse commissioner’s mapping work is so vital. We need to draw on the evidence provided by that work and other sources, consult widely and then come forward with proposals that command widespread support and, most importantly, deliver the necessary support in the most effective and efficient way possible.

As part of this work, we need properly to understand the resource implications of any new duty. The £125 million of new money that we have provided to fund the duty in Part 4 shows both the level of our commitment and the significant cost of any parallel new duty in relation to community-based support. Women’s Aid has suggested that some £220 million is needed. I make no comment on that or the accuracy of that estimate, but it at least demonstrates that Amendments 31 or 85, were either to be passed, would have significant financial implications, which this House should be alive to.

Recognising that the House is reluctant to let this Bill pass without it containing some provision that recognises the problem and provides a pathway to the solution, the Government have brought forward Amendments 17, 20, 22, 24 to 29 and 99. Amendment 17 places a duty on the domestic abuse commissioner to prepare and publish a report under Clause 8 of the Bill on the need for community-based domestic abuse services in England and the provision of such services. As with the provisions in Part 4 of the Bill, we have limited this duty to the provision of community-based services in England in recognition of the fact that we are generally dealing here with devolved matters in Wales. The commissioner will be required to deliver a Clause 8 report on this issue within 12 months of commencement and then, by virtue of the provisions in Clause 16, Ministers will be required to respond to any recommendations directed at them within 56 days. This amendment will therefore set out a clear roadmap for the Government to set out definitive proposals for addressing the gap in the provision of community-based support.

Amendments 20, 22 and 24 to 29 address the concerns raised in Committee that the new duty in Part 4 of the Bill may have unintended consequences regarding community-based support that is currently provided or funded by local authorities. I know that my noble friend Lord Polak was particularly concerned about this. As a result of the £125 million funding that we are providing to tier-1 local authorities to support the delivery of Part 4, we think that such concerns are unfounded. However, we recognise that there would be merit in making provision in Part 4 to monitor any unintended impact. These amendments do just that.

The amendments will also ensure that the domestic abuse local partnership boards, provided for in Clause 56, play an active part in such monitoring and that the results are recorded in tier-1 local authorities’ annual reports under Clause 57. These annual reports will feed into the work of the ministerially led national expert steering group, of which the domestic abuse commissioner will be a member, so that the impact, if there is any, of the Part 4 duty on the provision of domestic abuse support to people in the community by local authorities can also be monitored.

The Government are ready to take one further step. I can say that the Government are now committed to consulting on the provision of community-based domestic abuse services in the upcoming victims law consultation. I recognise the concerns about missing the legislative bus and the suspicion—it is unfounded—that the Government will kick this into the long grass. The government amendments that I have outlined will ensure that that does not happen, as will our commitment to consult on a victims law later this summer.

As to the concerns that this is all too far off and victims need support now, there is already significant provision. Since 2014, Ministry of Justice funding has helped police and crime commissioners to support victims of crime within their local areas, addressing the specific local needs identified within their communities. This core grant will be around £69 million in 2021-22, which includes an uplift for child sexual abuse services. Additionally, the Government have committed a further £40 million, which includes £9.7 million for domestic abuse community-based services commissioned by PCCs for the coming year, as well as £8 million for independent domestic violence advisers, the support of which will be felt mostly in the community. This does not take account of support provided by local authorities, clinical commissioning groups and others. It may not be enough, but these sums demonstrate the significant levels of community-based support that are already available for domestic abuse victims and their children, and for other victims of crime.

I am very much looking forward to hearing the other contributions to the debate on these amendments. I reiterate my thanks to my noble friends Lord Polak and Lady Sanderson, who are in the Chamber now, and to other noble Lords who have engaged so constructively on this. I hope that what I have said today is evidence of our intent and that the House will support this approach. I beg to move.

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

My Lords, I welcome the Government’s amendments, but I am not yet convinced they go far enough. As the Minister explained, Part 4 places a duty on local authorities in England to deliver support to victims, including children, in accommodation-based services such as refuges. There is a risk though that, as the duty applies only to accommodation-based services, it could have the unintended consequence of diverting funding from community-based services to ensure the duty is met. It would indeed be a perverse incentive, resulting in victims having only one option left if they need support in accommodation-based services. Most victims— around 70%—currently remain at home or in the wider community, accessing community-based support. This can be through independent domestic violence advisers, outreach support and child specialist workers, helplines and perpetrator programmes, as well as specialist local agencies offering drop-in services for children.

As SafeLives commented:

“We have very serious concerns that, while well intended, the Government’s duty will push Local Authorities into reducing, rather than sustaining, vital services, leaving more vulnerable people in abusive situations … We know the financial pressure that Local Authorities are under, and a number have said that they can now only provide minimum requirements … and nothing further.”


The domestic abuse commissioner has similar fears.

The amendments that the Government have laid are clearly welcome in requiring the commissioner to prepare and publish a report under Clause 8 on the need for community-based domestic abuse services in England and the provision of such services. It is also good to see that local authorities will be required to publish a strategy under Clause 55 to keep under review any effect of that strategy on community-based support in their area. However, welcome as they are, these amendments do not guarantee the maintenance or enhancement of community services, nor is there any guarantee that, following the commissioner’s review of the landscape of provision, action would then be taken by the Government.

I thought it was telling that the submission we received from the Local Government Association seemed rather lukewarm about these amendments. It said that nothing in the amendments provides long-term or sustained investment in these services.

This morning, the National Audit Office report on local government finance spelled out the financial challenge local authorities face. They will be under significant pressure in the next financial year and are likely to be operating with reduced tax bases and increased service demand as their local communities and businesses recover from the pandemic, and this is likely to go on for a number of years to come.

13:45

The NAO survey indicates that 94% of respondents from single tier and county councils, and 81% from district councils, expect to reduce service budgets. Some respondents considered that service users would be affected by their savings plans, due to reduced service levels from cutting staff and other efficiencies that they have to make. In other cases, authorities indicated that specific savings or income-generation measures would have direct and immediate effects on service users.

A key theme from the NAO case study discussions, stakeholder interviews and workshops is the long-lasting impact that the pandemic is likely to have on authorities’ finances. It is little wonder that, with the priority the Bill gives to accommodation-based services, there is real concern that community services will be starved of funds in the future.

My two amendments attempt to deal with the problem. Amendment 30 would give protection to community services. As part of the public sector equality duty under Section 149 of the Equality Act 2010, public authorities are required to have

“due regard … in particular, to the need to … take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it”.

Many domestic abuse services are specifically aimed at supporting people with protected characteristics, including women. The Equality and Human Rights Commission stresses the important role played by specialist “by and for” services, run by and for the users and communities they aim to serve. These include community-based services such as outreach, advocacy, information and advice services.

My aim, through Amendment 30, is to support the Government’s objective of inaugurating a more strategic approach to accommodation-based support, while at the same time making sure that local authorities that commission services are not deflected from their equality duty to cater for all the needs arising from protected characteristics. That is what my amendment seeks to do. It does not alter the public sector equality duty, but clarifies the way in which the duty applies to domestic abuse services. It does not touch, let alone conflict with, the Bill’s Clause 55 provisions on accommodation-based services, and it does not depend in any way on the commissioner’s mapping exercise.

My second amendment, Amendment 31, is very much related to the commissioner’s mapping exercise. It would give the Government the ability, through secondary legislation, to extend Part 4 to community services. So if the commissioner finds that local authorities are neglecting community services, a legislative vehicle would be immediately available to do something about it.

I listened with great interest to the Minister when she commented on this. It is very unusual for a Minister to turn down an extension of executive power, which I am very generously urging the House to give her. I confess that I am normally opposed to the extension of such executive powers, but needs must. In a situation where the mapping exercise has not been completed and the financial consequences of it have therefore not been calculated, it seems to me that there is a strong argument to say that the Government need some legislative provision in order to implement a policy in the light of that mapping exercise.

I listened very carefully to the Minister, and it was very helpful when she said that consultation on the victims’ law would be extended to embrace this. Clearly, we could see potential legislation in the future, but it will take time. Local authorities are under huge funding constraints, and I think there is a case for giving ourselves the ability in the Bill to ensure that, if community services are starved of funds as a result of the prioritisation of accommodation-based services, we have immediate levers to step in and deal with it. I hope the Minister will, even at this late hour, consider these amendments sympathetically.

[Lord Polak (Con)]

My Lords, I was pleased to table my amendment in Committee. I welcomed the debate and the overwhelming support from around the House. In particular, I acknowledge the support of the noble Lords, Lord Russell of Liverpool and Lord Rosser, and the right reverend Prelate the Bishop of Derby.

I am, perhaps, even more pleased that I have not tabled it again on Report. I am grateful to my noble friend and her ministerial colleagues for giving so much of their time to meet and discuss this; for the amendments tabled in the name of my noble friend; and for confirming the Government’s commitment to address issues around community-based services in a letter to me last Thursday.

We all agree that community-based services are vital in supporting the majority of domestic abuse victims who remain at home. Government amendments to ensure that local authorities monitor and report on the impact of their duties under Part 4 on other service provision, are most welcome, as is the Government’s commitment to consult on the provision of community-based domestic abuse services in the upcoming victims law consultation this summer. These have been welcomed not just by me but in a press release, published under the leadership of Barnardo’s, by the domestic abuse commissioner, the Victims’ Commissioner for England and Wales, domestic abuse campaigner Charlie Webster, Imran Hussain at Action for Children, the End Violence Against Women coalition, the NSPCC and SafeLives. I congratulate my noble friend the Minister on uniting these groups and organisations in welcoming the Government’s commitments. This is an incredibly important step forward in understanding and addressing the provision of community-based domestic abuse services, so that all victims, especially children, will be able to access support, regardless of where they live.

I hope the consultation will take a holistic approach to tackling domestic abuse, carefully considering what is needed to support children and adults, as well as programmes to tackle the behaviour of perpetrators and break the cycle of domestic abuse. I am certain that my noble friend the Minister and her colleagues, working with the professional and deeply impressive domestic abuse commissioner—who I thank for her advice—will place community-based services on the same statutory footing as accommodation-based services. I appeal for her office to be properly and adequately funded.

Again, I thank my noble friend the Minister for her time and for the helpful letter she sent me. I am pleased to support the amendments in her name. I look forward to continuing to work with her and with all noble Lords as this important Bill becomes law.

[Lord Russell of Liverpool (CB)]

My Lords, I shall be extremely brief, not least because of the happy coincidence that the noble Lords, Lord Hunt and Lord Polak, have largely said what I was going to say. I thank them. I can now go and have a late lunch.

Like the noble Lord, Lord Polak, I was impressed by the Barnardo’s press release last Thursday, with all the different voices speaking in unison. My own experience of dealing with voluntary organisations over many years is that hell hath no fury like different voluntary organisations in pursuit of similar goals and, in particular, similar pools of funding. Peace seems rather dangerously to have broken out in this case. I hope it will continue.

I thank the Government for listening. It was a bit of a no-brainer with a Bill in which 25% of the accommodation-based services for domestic abuse victims were dealt with but 75% were not. That was an open goal waiting to be filled. I am grateful that the Government have acknowledged this and acted on it.

Like the noble Lord, Lord Hunt, I took note of the National Audit Office investigation and report into the state of local authority funding. I have observed a variety of individuals in this House—some of whom I have worked in co-operation with—who, for the best of reasons, ceaselessly plead with the Government to put more and more statutory duties on local authorities in a whole variety of different areas. In a sense, this is dangerous because, in a situation where local authorities are under the strains and stresses that they are, piling even more statutory duties or guidance on them runs the risk of mission failure and initiative fatigue. I am very conscious of this. It requires a joined-up approach from the different parts of Her Majesty’s Government.

The Home Office is doing its bit. The Ministry of Justice is going to do what may not come easily to it and talk more openly with the communities department —and vice versa. It was not terribly helpful that the Secretary of State, while acknowledging the councils’ problems, could not resist the political dig of accusing them of poor management. This is a bit rich coming from a national Administration who have spent the amount of money they have on initiatives such as test and trace, or who have presided over the highest number of deaths per million in the world during the current pandemic. Before one starts throwing political missiles at one’s opponents, it does one a lot of good to look in the mirror and have a degree of humility. None of us gets it right all the time.

When the domestic abuse commissioner comes back with her recommendations, I would plead with the various parts of national government and the local authorities to talk to one another, agree, buy into whatever is recommended, and put in place properly thought-through, long-term plans to deliver on this strategy and to fund it properly.

[Lord Rosser (Lab) [V]]

My Lords, government Amendment 17 requires the domestic abuse commissioner to prepare and publish a report on

“the need for domestic abuse services in England, and … the provision of such services.”

The report must be published no later than 12 months after this new clause comes into force.

Other government amendments require local authorities to keep under review the impact of the duty to provide accommodation-based services on their provision of other domestic abuse services in the community.

Amendment 30, in the name of my noble friend Lord Hunt of Kings Heath, makes it clear that the public authority may not prioritise accommodation-based support services for persons with a protected characteristic over other support services for the same person, except in so far as those persons have a greater need for accommodation-based services than for other support services.

Amendment 31 would give the Secretary of State power through regulations to extend the duty in Part 4 to include community services, instead of just accommodation-based services. I agree with the points made and the concerns raised by my noble friend Lord Hunt of Kings Heath in his powerful contribution.

Amendments 85 and 86 in my name are the community service amendments from the noble Lord, Lord Polak, re-tabled. We tabled them pending sight of the Government’s specific commitments and amendments. I will not move them. Like others in the House and outside, we welcome the Government’s amendments and commitment to consult on community-based services as part of the consultation on the victims law. I pay tribute to the noble Lord, Lord Polak, and to other noble Lords, as well as to all the organisations which have worked on this issue. I also pay tribute to the shadow Minister in the Commons, Jess Phillips, who pursued the proper provision for community-based services with some vigour and determination during the Bill’s passage through the other House.

We now need to see the Government’s words and commitments translated into real progress and meaningful action. The key to achieving this is for services, victims and perpetrators to be looked at holistically; to see what needs to be done in the round to prevent abuse, and to support victims who experience it. This also means providing services for children who are victims, for older victims and for perpetrators, as well as ensuring that there are specialist services for black and ethnic minority victims. Healthcare services are also vital.

14:00

The government amendments also require local authorities to keep under review the impact of the duty to provide accommodation-based services on their provision of other domestic abuse services in the community. We do not regard the current level of community-based domestic abuse services as sufficient, so I simply register that, if local authorities conclude that carrying out their duty to provide accommodation-based services has no adverse impact on their current provision of other domestic abuse services in the community, we would not regard that as meaning that those community-based services do not need enhancing and extending.

The welcome commitments that the Government have now given will result in meaningful change and improvement for victims of domestic abuse only if the necessary financial and human resources are made available to increase and extend community-based services. I am sure that we will not be the only ones in this Chamber or outside it who will press the Government to ensure that welcome and worthy intentions today are not thwarted by an unwillingness by Government tomorrow to provide the necessary additional resources for the future provision of much-needed and enhanced community-based services.

[Baroness Bertin (Con) [V]]

My Lords, it is a great honour to follow the noble Lord, Lord Rosser. I am greatly relieved that he said what he said—he made some powerful points—but it is right that we back the government amendments. I will speak to that today.

The Bill’s commitment to giving refuges statutory status is vital, but we knew that giving no statutory recognition anywhere in the Bill to community-based services posed a clear risk to inadvertently downgrading their status, which we absolutely had to prevent. I believe that these amendments do that, but I agree that we will all keep a close eye on their execution to check that they genuinely safeguard the status of community services.

I thank the designate domestic abuse commissioner, as well charities such as Barnardo’s and SafeLives and my noble friend Lord Polak, for being so determined and tenacious. I am greatly relieved that these charities have welcomed these amendments. I know that they are satisfied and greatly relieved, but of course we will have to keep a close eye on whether they do the job. I also extend my thanks to my noble friend the Minister. She has given us a lot of time on this issue and genuinely cares about it. I know that she was integral to getting these amendments over the line.

I back other Peers’ calls to make sure that the domestic abuse commissioner’s office has the proper resourcing to carry out these additional responsibilities. Throughout this Bill’s passage, we have been sending her more and more work, so reasonable adjustments should be made. Helping victims to stay in their homes, stemming the abuse before it damages families beyond repair and prevention must be at the heart of our strategy over the coming years. These amendments point to that. I fully support them and urge noble Lords to do the same.

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

My Lords, I will speak to Amendments 31 and 85. I underline that domestic abuse services, which I very much support, should include victims being forced into marriage. I particularly have in mind the special needs of those being forced into marriage who are under the age of 18. I know that the Minister is well aware of the points that I am making. I am sorry to keep pressing them, but I want them on the record.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

The noble Baroness, Lady Goudie, has withdrawn, so I call the noble Baroness, Lady Jones of Moulsecoomb.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, having listened to other speeches from noble Lords, I realise that the comments that I have prepared are far too mild. I was just going to congratulate everyone who has campaigned and fought for proper provision and thank the Government for working constructively. It is not often that I find myself on the mild end of things. I think that there is now a clear understanding of the need for community services, including supporting survivors of domestic abuse in their own homes. I feel strongly that the abusers should have to leave and not the survivors. The Green group is very supportive of Amendment 85 from the noble Lord, Lord Rosser. I am sure that we will come back to it at another time in another place. In the meantime, well done everyone.

[Baroness Sanderson of Welton (Con)]

My Lords, it is an honour to follow the noble Baroness and her mild comments. I will speak to and welcome Amendments 17, 24 and 28. As we have said many times before, this was already a very good Bill. I thank the Government and particularly my noble friend Lady Williams for the lengths to which she has gone to improve it further. She has been unstinting in her determination to address many of the outstanding issues, always putting the victims’ needs first. With these amendments, I believe that the Government have addressed the potential unintended consequences of a two-tier system.

The Government are wary of specifying what the independent commissioner should and should not report on, and I agree with them. The Minister has also made the point that the commissioner is already undertaking the relevant mapping exercise. None the less, Amendment 17 sends a signal about the importance of community-based services. Together with the requirement for local authorities to assess the impact of the duty under Part 4 and the further requirement, via Amendment 28, for local partnership boards to advise on other local authority support, I believe that this provides a robust and, importantly, ongoing mechanism and structure for ensuring that community-based services are not adversely affected by the duty.

I welcome the Government’s commitment to consult on the provision of community-based services and congratulate my noble friend Lord Polak on all the work that he has done in this area. I also welcome the amazing number of charities and stakeholders that have welcomed these amendments. As I have said before, I understand why the Government cannot extend the duty in this Bill. On this issue and so many others, they have come forward with significant changes. They have moved where they can and altered their position in areas where we thought that they would not.

I realise that I am still relatively new to this House. I also realise that no Bill will ever be perfect and that noble Lords will fight for the changes that they think are right, but this Bill has cross-party support, and for very good reason. It will create a genuine step change in the way we tackle domestic abuse. It has already raised so much awareness. Someone who works on the front line said to me on seeing the raft of government amendments:

“You should see the amazing survivor messages I’m seeing this morning. I’m quite emotional seeing their excitement. We feel the tide is turning.”


The tide is turning but, as we all know, we have only a limited period to get this Bill through. I believe it is now up to us to bid it safe passage.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

I call the noble Baroness, Lady Watkins of Tavistock. No? Perhaps we should hear from the noble Baroness, Lady McIntosh of Pickering, since she is with us.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I will speak briefly in support of my noble friend the Minister and congratulate her on bringing forward this group of amendments. It shows that a serious issue has been raised and the Government have risen to the challenge and addressed it. It is extremely important, for the reasons that others have set out. I congratulate my noble friend Lord Polak and others on the work that they have done in bringing us to this place.

I will raise one concern with my noble friend the Minister, which was addressed by the noble Lord, Lord Hunt, and which I think we are all aware of. We are yet to assess the implications of the pandemic and the recent Budget on local government finances. I seek assurance from my noble friend because there is a genuine concern out there. I know that many authorities, such as North Yorkshire and many others in rural areas, prioritise the most vulnerable in society—young people, children and the elderly—but there is concern that their budget and resources are severely stretched. While I welcome the amendments, particularly government Amendment 17 and the others set out by my noble friend, we are entirely dependent on local authorities having the provision to make this happen. Is she entirely convinced that they will have the resources to enable them to do so?

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I should make it clear that the noble Baroness, Lady Watkins of Tavistock, has withdrawn from the debate, so we shall not be hearing from her on this occasion. I call the next speaker, the noble Baroness, Lady Finlay of Llandaff

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, I should declare that I chair the Commission on Alcohol Harm. I added my name to Amendment 31 in the name of the noble Lord, Lord Hunt of Kings Heath, and the noble Baronesses, Lady Goudie and Lady Hollins. It is very welcome that the Bill will, for the first time, give local authorities a formal role in the provision of domestic abuse support. The voluntary sector has done a heroic job in protecting survivors, victims and their families, but this vital task should not be left to the voluntary sector alone.

The words of the Minister were welcome, reflecting her deep and sincere commitment to tackling domestic abuse. The government amendments recognise the need to ensure that regulation will meet need and are certainly to be supported. If I heard correctly, some of the additional finance will apply only to England. How will parallel community services be financially supported in Wales? Without that additional funding also coming to Wales, there will be a serious risk that women fleeing abuse will also have to flee Wales to get the support they need.

We must not ignore those outside refuges, some of whom are turned away due to their alcohol and substance-use needs, which makes them ineligible for support from their local authority. However, they still need support. The amendment of the noble Lord, Lord Hunt of Kings Heath, is needed in addition to the Government’s amendments. It would ensure that the necessary support is available and would support the whole scoping exercise without any discrimination. I really urge the Government to support it.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the new statutory duty on local authorities to provide safe accommodation-based services for victims of domestic abuse and their children is widely welcomed, but I am still sympathetic to the ongoing fears that this might mean local authorities simply redistributing funding away from community services in order to meet that statutory need. I welcome these thoughtful amendments and the discussion that focuses on protecting specialist community service provision. While I am still not sure whether this issue should be dealt with through legislation, it is very important that it has come up. I am minded to consider seriously Amendments 30 and 31 in particular.

However, there is one category of specialist services that I am worried the Bill has inadvertently not focused on: women’s domestic abuse services, whether community or accommodation-based, which are under threat. Ironically, council funding does not help. The Bill’s increase in funding and the new legal duty on councils will not resolve this issue. There seems to be some muddled thinking about how councils should deliver specialist services more broadly. I would appreciate it if the Minister would take that into account in this set of amendments or in guidance notes.

I declare a minor interest, in that I am a long-standing columnist for the MJ – for the uninitiated, the Municipal Journal. It has been eye-opening watching councils in recent years trying to negotiate equalities legislation in the context of new political trends such as gender-neutral policies. The Equality Act 2010 clearly protects single-sex exemptions that allow women to have legitimate access to women-only services and spaces: gyms, hospitals, changing rooms and, of course, crucial services such as Rape Crisis, women’s refuges and women’s advice services. The newly launched organisation Sex Matters notes that rules and explanations are now confused and controversies around gender identity mean that organisations can be reluctant to communicate their women-only services clearly, and, when they do, councils can use this against them. This needs to be clarified as we go forward; otherwise, all the good will will be undermined.

One example of the unintended consequence of fudging championing women’s refuges is how councils are interpreting equalities impact assessments. In the drive for more inclusive, non-gendered service provision that caters for the needs of all protected characteristics, women’s refuges are in danger of losing funding for not being inclusive enough.

14:15

One recent example that I mentioned in relation to another Bill is the Brighton-based organisation RISE, which has lost a contract worth £5 million over seven years. After 26 years of stalwart work, its existence is now threatened. RISE is predominantly, but not exclusively, a women-for-women service, but the briefing from Brighton & Hove City Council’s bids evaluation team explained that RISE needed to cater more for heterosexual and gay men and specifically address the barring of services experienced by the trans community. The message was clear: that RISE should stop mainly focusing on women victims of domestic abuse. RISE has an LGBTQ domestic abuse casework service and it has co-piloted an LGBTQ refuge. Surely, its women-only services should not need to be anything other than exemplary for women, whether accommodation-based or community-based. However, the council was clear that the contract would not be continued because RISE is primarily a service for women. As Women’s Aid’s Nicki Norman said:

“We are at serious risk of losing our network of refuges run by women for women.”

We should not be naive or disingenuous here. One reason why there is a coy reluctance to demarcate services for women only is the controversies over definitions of a woman, as defined by biological sex. Gender neutrality can become a shield to avoid any accusations of transphobia, and councils can hide behind that. Even this Bill, in its attempts at being gender neutral, seems reluctant to defend or bolster the women’s refuge movement or women’s services in the community, without which, to be honest, the whole issue of domestic abuse would not even be on the political agenda at all.

Perhaps the Minister can just assure us that the Bill will not lead to a new type of procurement of less-specialised service provision or the downgrading of essential services for women, whether accommodation-based or community-based, and that communities will not lose the unparalleled expertise, garnered over decades, of women’s refuges and women’s services in the enthusiasm to hand over funding and procurement to councils. Do not forget some of the risks involved in that.

[The Lord Bishop of Gloucester [V]]

My Lords, my friend the right reverend Prelate the Bishop of Derby, who regrets that she cannot be here today, was pleased to support the noble Lord, Lord Polak, when his amendment on specialist and community-based services was discussed in Committee. We really warmly welcome the government amendments, which represent significant improvements on the Bill. All that being said, I am glad that the noble Lord, Lord Rosser, introduced Amendment 85 so that we might just press a little further. I do not want to repeat what other noble Lords have said, so I will make just a few brief comments.

We have heard repeatedly in debates in this House of the value of specialist and community-based services which allow survivors to remain in their homes and retain their community, their faith links and their workplaces and to keep children in their schools. Finding a long-term solution, as others have said, to supporting these services is essential. With colleagues on the Bishops’ Bench, I look forward to engaging with the victims’ law consultation and to reviewing the promised Clause 8 report from the domestic abuse commissioner to Parliament on the provision of, and need for, community-based support services.

I look forward to the excellent intentions being translated into provision of what is much needed.

[Baroness Benjamin (LD) [V]]

My Lords, I will refer to Amendments 20, 22, 24 and 29.

I understand that the Minister has committed to consulting on community-based domestic abuse services as part of the victim’s law consultation this summer; that is extremely welcome. I thank the Government for this, and thank the noble Lord, Lord Polak, for his commitment to this issue. I also thank the Minister, who rightly responded to concerns raised by Barnardo’s—I declare an interest as the vice-president of that charity—and many other charities and organisations representing adult and child victims. As we know, children are often the hidden victims of domestic abuse. Can the Minister confirm that a statutory duty to deliver community-based services is a possible outcome to ensure that the majority of victims are supported in future?

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

The noble Lord, Lord Randall of Uxbridge, has withdrawn so I call the next speaker, the noble Baroness, Lady Primarolo.

[Baroness Primarolo (Lab) [V]]

My Lords, like the other speakers this afternoon, I welcome the Government’s amendments. However, I remain concerned about two matters, to which I will speak briefly; I will also ask the Minister to try to assure the House on them.

Many speakers have mentioned my first concern. Although having a statutory duty on local authorities to provide accommodation is welcome, if we do not deal with the question of community-based services, there is—as the noble Lord, Lord Hunt, said—a huge danger of money being transferred into the provision of the accommodation and away from such services. The Minister, who has done an excellent job on this Bill, has not explained clearly to the House why Amendment 30 in the name of the noble Lord cannot be accepted so as to protect these services in the interim while the commissioner undertakes her mapping exercise. If she is not prepared to accept that amendment, will she explain to the House what steps the Government will take to protect community-based services in the period when the mapping will be undertaken?

The second area that I want to refer to briefly is that of joint commissioning and the work being done in localities to provide these valuable services. The Minister touched on the lack of clarity over what this meant. I made inquiries of these services in Gloucestershire, a large county where localities have been undertaking community-based commissioning since 2013; this involves working across local authorities, health authorities, the police and crime commissioner and other services. The joint commissioning model has enabled them to offer far more women help than would be possible under an accommodation-based offer only. The service, they tell me, has taken referrals for 6,000 women in the past year, whereas an accommodation-based model would not have been able to deal with more than around 100 a year.

When we understand this perspective of the importance of community-based services and how they support victims and their families, it is incumbent on the Minister to explain why she is not prepared to take the route of Amendment 85. In Gloucestershire, the emphasis is on safely keeping victims in their homes, allowing them to maintain family and community networks and avoid isolation, and enabling their children to stay connected to their school friends. These are clear objectives that can be distilled in demonstrating what a community-based model looks like. The services also offer places of safety through a scheme in which they provide safe accommodation in the form of individual properties for victims and their families, who can access this accommodation alongside outreach support.

We are talking about specialist services that are there to support victims of domestic abuse aged 16 and over. They provide help desks, phone lines, specialist group work and independent domestic violence advisers to support victims in the courts. They provide independent advisers to support young people and encourage them to confront the perpetrators and the type of behaviour that is developing. They also work with the health services and GPs to identify domestic abuse and respond to it rapidly.

This model is not unique to Gloucestershire. The Government have enough to make provisions in Amendments 30 and 85 to move us forward. This does not mean that the services will be available tomorrow, but it does mean that we understand what types of services are necessary. Even at this late stage, with the excellent work that has been undertaken by many noble Lords in this area, I sincerely hope that the Government will think again, give a much clearer lead on the pathway to deliver jointly commissioned community-based services and make the provision of such services a statutory duty.

[Baroness Burt of Solihull (LD)]

My Lords, in Committee, the need to consider help for victims in the wider community as well as in refuges was raised again and again. These amendments put other local authority services for domestic abuse victims and their children front and centre, giving them the recognition and attention they deserve. However, it must be said that concerns have been expressed across the House about funding because we cannot enforce the provisions in the Bill and in these amendments without it.

We already know that most help and services are accessed in the community; the noble Lord, Lord Russell, described it as a no-brainer. I am therefore absolutely delighted by the Government’s response. I want to give the Minister full credit for the way in which she has listened and acted.

I support government Amendment 99, which would, for the first year only, give six months’ leeway for the Government’s new clause duty to report on domestic abuse services in England. That seems entirely reasonable to me. Who knows what challenges and obstacles the first report will encounter?

This has been an extremely useful and succinct debate. When I looked at the number of speakers, I thought “Oh my goodness, we’re going to be here a while”, but we have not. I hope that noble Lords, both those in the Chamber and those listening from home, will appreciate that we have a lot to get on with; their succinct comments are very welcome.

I will take a leaf out of their book and conclude by saying that peace has broken out. This debate is an example of the Lords working at its best. I congratulate noble Lords, the Minister and all the charities and organisations that have worked together in the best way possible to ensure that we have got to this situation.

14:30

[Baroness Williams of Trafford (Con)]

My Lords, the noble Baroness, Lady Burt, is absolutely right to say that peace has broken out, but I do not think that your Lordships were ever at war. We have all been seeking the same ends. This has been a good and succinct debate—long may that last—and from what several noble Lords have said I know that they will keep a close eye on developments over the next few months.

The noble Baronesses, Lady Jones of Moulsecoomb and Lady Primarolo, made specific points about perpetrators being brought to book and that victims should be able to stay in their own home. The importance of community-based services for the victims of domestic abuse and their children is unquestionable. We share noble Lords’ ambitions to see all the victims of this terrible crime being supported.

It might assist the House if I briefly recap the Government’s reasoning on why now is not the appropriate time to legislate on this issue. I shall return to the point made by the noble Lord, Lord Hunt. The current landscape is complex. Unlike accommodation-based services, those in the community are funded and commissioned not only by PCCs but by local authorities and clinical commissioning groups. Further, as another noble Lord said, the third sector is prominently involved in this. Introducing an undeveloped statutory duty in the Bill would run the risk of cementing in legislation a complex landscape that we are working hard to simplify. Equally, placing the duty on only one of these public bodies would be to risk legislating for responsibility in the wrong place. This is far too important an issue on which to legislate in a rush.

Several noble Lords, including the noble Lords, Lord Hunt and Lord Russell, the noble Baronesses, Lady Primarolo and Lady Burt of Solihull, and my noble friend Lady McIntosh talked about the funding behind this, which is crucial. In fact, it has gone to the heart of the position taken by the Government. We must understand fully the cost of such a duty before we can implement it. The MHCLG duty has been funded at a cost of £125 million, so any action around community-based services must be funded appropriately. As I have said, significant government funding is already provided for these services, with an additional £17.7 million for them having been announced only last month. The results of this funding will be a further crucial piece of information to help us understand further need. I agree with the noble Baroness, Lady Jones of Moulsecoomb, and others that funding for the commissioner also has to be in place.

The noble Baroness, Lady Finlay, asked about the position in Wales and Amendment 17 placing a duty on the domestic abuse commissioner to prepare and publish a report under Clause 8 on the provision of domestic abuse services in England. As with the provision made in Part 4, we have limited the duty to the provision of these community-based services in England in recognition that generally we are dealing here with devolved matters in Wales. However, the noble Baroness is absolutely right to ask the question. We recognise the concerns raised by noble Lords, which is why we have tabled amendments to demonstrate our commitments in this space.

The statutory duty on the domestic abuse commissioner to publish and lay before Parliament the Clause 8 report on the provision of and need for community-based support services, and the statutory duty on tier 1 local authorities to monitor and report on the safe accommodation duty on the provision of community-based support in their area, will together ensure that the Government have all the information they need to protect and support safe accommodation and services in the community. In addition, I have committed today to consulting this summer on a statutory duty around community-based services in the upcoming victims’ law consultation. This is a commitment to explore precisely the issues that noble Lords have highlighted in this debate. It will give us the time to do them justice. To rush legislation now would, as I have said, risk solidifying into statute the wrong framework and accountability mechanisms, as well as the wrong arrangements for ensuring that responsible public authorities collaborate to ensure that victims receive the services that they need.

We also cannot take a shortcut with a regulation-making power, as suggested by the noble Lord, Lord Hunt. As I said in my opening speech, your Lordships’ House does not like the kind of skeletal powers that would be provided for in Amendment 31. Any new duties in respect of community-based support should be set out in primary legislation, as we have done for accommodation-based support in Part 4. This issue must be given thorough and thoughtful consideration. We will use the consultation to interrogate fully the current landscape of community-based services and to develop effective proposals on how we might ensure that it remains robust and effective in order to give all victims access to these vital services.

My noble friend Lord Polak pointed to the fact that Amendment 85 also seeks to make provision for perpetrator programmes. I agree entirely that more is needed here. The noble Baronesses, Lady Primarolo and Lady Jones of Moulsecoomb, also talked about the issue. I will set out our plans in this area when we come to debate other amendments tabled by the noble Baroness, Lady Royall, and the noble Lord, Lord Strasburger. The needs of victims and perpetrators are clearly of a different order, but we recognise that both issues need to be addressed. However, we are not persuaded that they should be conflated in a single provision such as that provided for in Amendment 85.

I turn finally to Amendment 30. I say to the noble Lord, Lord Hunt, that for the reasons I have explained, we would not expect local authorities to give priority to accommodation-based support services over community- based services, so the circumstances addressed in the amendment should not arise. In response to his question, once the new duty under Part 4 becomes law the public sector equality duty will apply to local authorities in delivering their functions under it.

In assessing needs, local authorities will consider the differing requirements of all victims. This goes to the point made by the noble Baroness, Lady Fox, because that will include those with relevant protected characteristics under the Equality Act 2010, as well as victims who might come in from outside the specific local authority area. As set out in the draft statutory guidance, tier 1 local authorities should make it clear in their strategies how they plan to make support services available that will meet the needs of all victims. The strategy should set out the support needs that have been identified as part of the local needs assessment, along with a clear breakdown of the differing needs of victims’ groups such as, but not limited to, those from BAME backgrounds or who identify as LGBT, and how they will address the barriers faced by victims with relevant protected characteristics and/or multiple or complex needs. I hope that that will answer the point put by the noble and learned Baroness, Lady Butler-Sloss.

We want the same outcomes here. I think and hope that the road map that I have set out, underpinned by our amendments, has reassured noble Lords that the Government are committed to taking this issue forward at pace. I therefore ask the noble Lord, Lord Hunt, not to move his amendment. I thank all noble Lords for taking part in what has been an incredibly constructive debate and I hope that these government amendments will be universally supported.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

I have received a request to ask the Minister a short question from the noble Lord, Lord Hunt of Kings Heath.

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

My Lords, I want to ask the Minister a couple of quick questions. The first relates to the additional money she mentioned today and in Committee that is going to local authorities to help to implement the legislation. Given what the NAO has said this morning, is she confident that local authorities will actually spend the money in the areas in which the Government wish them to? Secondly, on the question put by the noble Baroness, Lady Fox, about the jeopardy that women-only spaces in refuges are coming under because of local authority commissioning policies, will the Minister remind those authorities of the need to implement fully the Equality Act 2010 and not try to reinterpret it?

[Baroness Williams of Trafford (Con)]

My Lords, I will answer the last question first. The Equality Act 2010 is of the utmost importance here. Whether or not I actually remind every local authority of its obligations under that Act, they have statutory duties, and under- pinning the work of every single local state body is the Equality Act.

Will local authorities necessarily spend the additional money on what they have been tasked with spending it on? It is being given to them in conjunction with a duty. I know, because of what she has said, that both the domestic abuse commissioner and the local boards will be scrutinising the spending and commissioning of those services locally.

Amendment 17 agreed.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

We come now to the group consisting of Amendment 18. Anyone wishing to press this amendment to a Division must make that clear in debate.

Clause 37: Breach of order

Amendment 18

Moved by

[Baroness Hamwee]

18: Clause 37, page 23, line 28, leave out “without reasonable excuse the person fails” and insert “the court is satisfied beyond reasonable doubt that the person has without reasonable excuse failed”
Member’s explanatory statement
This amendment applies the criminal standard of proof to a breach of a domestic abuse protection order.

[Baroness Hamwee (LD) [V]]

My Lords, this amendment raises the relationship between the civil order and the criminal conviction that can result from a breach of it. I hope that this debate is as constructive as the last one, because my intention is not to divide the House but to get on record the explanation of how a DAPO—a domestic abuse protection order—and the breach of it will work.

The order may be made if the court is satisfied on the balance of probabilities, which is the civil standard of proof, that an individual has been abusive to someone with whom he or she has a personal connection— I find it difficult to use “they” of the singular. It is also a condition that the order is

“necessary and proportionate to protect that person from domestic abuse, or the risk of domestic abuse”.

The civil court can impose requirements and the Bill gives examples, such as non-contact, not going to specified premises and electronic monitoring. If the subject of the order fails to comply with a requirement, without reasonable excuse, it is an offence of which he or she may be convicted. If found guilty, he or she is liable to a fine or imprisonment up to five years.

We debated protection notices and orders in Committee. The Minister, the noble Lord, Lord Wolfson, in a long and helpful reply, said that he agreed with the aims of our amendments and he summarised them correctly as:

“to ensure procedural fairness so that criminal liability and punishment for breach of a DAPO will occur only where the breach is proved to the criminal standard of proof”.

He also said:

“One of the strongest elements of a DAPO is that it is a civil order, made on the civil standard of proof. That means that if a victim is not able to, or chooses not to, seek remedy through the criminal justice system, they can still access protection from the court.”—[Official Report, 1/2/21; cols. 1950-51.]


I wonder whether the Minister can unpack that “not able”—why not? And “chooses not to”—why would we not require that course to be pursued? I understand, as much as someone who has not been in this situation can, the difficulties facing someone going through everything in a court, which is an issue that we will come to later. It is important to enable a victim to pursue both justice and protection, but it is also important to have regard to the rights of an alleged perpetrator, which is about the standard of proof to be attained.

14:45

The Minister wrote after the last stage, and I thank him for that, referring to a question that I asked in Committee about the experience of applying the alternative of contempt of court to punish the breach of an order. The letter did not answer that point, and that may be because it is not known how often that route is taken in the case of comparable civil orders. He said—and this is another aspect of my questions—that choosing not to pursue a breach as a criminal matter allowed victims to obtain protection

“based on their individual circumstances.”

Can he amplify on that? How does it come about? Do the police advise victims on their choice? Is there guidance or a code of practice? Does the CPS get involved at this stage?

The primary reason for the amendment is to ask the Minister to repeat, from the Dispatch Box, the clear statement that he made in his letter about standard of proof. He wrote emphasising

“that a breach will not result in an automatic prosecution. … the breach will need to be reported to the police, who will then investigate and refer to prosecutors for a decision on whether to pursue a prosecution. Criminal sanctions will only be imposed following a conviction for the breach offence in the criminal court, which would need to be proved to the criminal standard in the usual way. By this, I mean that the matter will be dealt with by a criminal court which will automatically apply the criminal standard of proof when deciding whether to convict.”

That was reassuring, but it is better to have it on record in the Official Report. Therefore, I beg to move.

[Baroness Fox of Buckley (Non-Afl)]

First, I thank the noble Baroness, Lady Hamwee, for such clarity in raising some of my concerns. My enthusiasm for the Domestic Abuse Bill is somewhat muted by the worrying trend from the Government more broadly to use civil protection notices and orders to expand the coercive powers of the state, criminalising a greater range of behaviours without the bother of reaching the burden of proof of criminal law.

To be honest, I was surprised that those who usually speak up on civil liberties in this place seemed rather quiet on this, which is why I was glad to see this amendment. I know that the issue of domestic abuse is emotive and sensitive, and that we all want to do what we can to oppose it, but due process is important too, so I warmly welcome this amendment and thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, for raising it.

It is a crucial amendment, because it aims to ensure that a criminal standard of proof is applied to a breach of a domestic abuse order. That is just not clear as the legislation is written. It seems an important protection for justice and the rule of law. The danger of any hybridisation of civil and criminal instruments is that criminal penalties can be given out without satisfying the criminal burden of proof, which means that someone can effectively be found guilty of a crime and labelled as a proven abuser without a legal test or representation. That feels far too subjective in the Bill, as it stands.

Of course, I understand that breaches of orders must have consequences. They are not just a piece of paper; they are not just there for show. The amendment seeks to clarify how the judgment of a “reasonable excuse” for a breach in the legislation, or that it was “beyond reasonable doubt”, is arrived at. It must be the role of the courts, but it is just not clear.

Dispensing with the criminal burden of proof can have some unintended consequences that are not in the interests of the victim either. Some campaigners fear that the police may choose to use breaches of an order as an easier alternative to proving charges for more serious criminal offences, such as assault or criminal damage. A lower threshold may imply that something has been done by the authorities—as it were, ticking a box—but perhaps more should be done. If the police go about choosing an easier tick-box solution, without the nuisance of gathering evidence that can be tested, that is a bad outcome, so we must ensure that order breaches are not used as an alternative to pursing criminal charges where appropriate.

It is also nerve-racking that some breaches of an order may be relatively minor and very far from criminally threatening to anyone, least of all the person the order is protecting. Some fear that alleged victims may be deterred from reporting breaches if that automatically criminalises their partner or their ex-partner, who might perhaps be the parent of their children.

The worry is that those who the Bill seeks to protect are being sidelined in the process and potentially disempowered. Their agency is potentially undermined by decisions taken by the police or third parties who can use breaches of an order to criminalise alleged perpetrators, regardless of what the victim wants or of however minor the breach. If that were to happen, the main loser would ultimately be due process. I therefore support this amendment wholeheartedly and look forward to the Minister clarifying this or reassuring us that this is not a way of avoiding a criminal burden of proof.

[Lord Paddick (LD) [V]]

My Lords, I want to go one step back and start with domestic abuse prevention notices. These can be given by a relatively junior police officer, despite what the legislation describes as a “senior police officer”—I was a police inspector at the age of 23—on the basis that he has reasonable grounds to believe that P has been abusive towards another person aged 16 or over to whom P is personally connected and reasonably believes that the notice is necessary to protect the person from abuse by P. If P breaches the notice, P can be arrested and must be held in custody before they can be brought before the court. That is a lot of power invested in a relatively junior and potentially inexperienced police officer, with serious consequences for P. A practical alternative might be to seek the authority of a magistrate, in a similar way that the police might seek a search warrant, which can be done at short notice, on a 24/7 basis. Did the Government consider such an alternative?

As my noble friend Lady Hamwee said, domestic abuse prevention orders can be made by a court on application, and must be applied for if P is already subject to a domestic abuse protection notice. The orders are made on the basis that the court is satisfied on the balance of probabilities, the civil standard of proof, that P has been abusive towards a person aged 16 or over to whom P is personally connected and the order is necessary and proportionate to protect that person from domestic abuse, or the risk of domestic abuse, carried out by P.

The order can be made in the absence of P, and it can impose a range of prohibitions and requirements. If P fails, without reasonable excuse, to comply with the order, he commits a criminal offence and can be imprisoned for up to five years. Normally an accused person is convicted of a criminal offence only if the offence is proved beyond reasonable doubt, and while I accept that a breach of the order might be so proved, the basis upon which the order is given is on the balance of probabilities.

When this House debated knife crime prevention orders, we discussed whether the breach of what is effectively a civil order, granted on the balance of probabilities, should result in a criminal offence, rather than a fine or a term of imprisonment for contempt of court without a criminal conviction being recorded against the perpetrator. In that case, the Government claimed that it was the police who said that a criminal sanction was necessary, rather than a civil penalty, in order for perpetrators to take them seriously. What is the Government’s reason this time?

As we discussed then, Parliament changed a similar regime introduced under the Crime and Disorder Act 1998 and the Anti-social Behaviour Act 2003, whereby breach of the civil order resulted in the criminalisation of many young people with no previous convictions for breach of an anti-social behaviour order or ASBO. Parliament replaced ASBOs with anti-social behaviour injunctions and community protection notices—a purely civil process—by means of the Anti-social Behaviour, Crime and Policing Act 2014.

On the basis of hearsay, potentially a malicious allegation, someone could be given a domestic abuse protection order, breach of which may result in a criminal conviction and a term of imprisonment. Can the Minister please explain why it is necessary for a criminal record to be created when there is a breach of the civil domestic abuse prevention order when it is not necessary in relation to anti-social behaviour injunctions and community protection notices?

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I am speaking to this amendment on the basis that the noble Baroness, Lady Hamwee, said that she will not be moving it to a vote, and that what she is seeking is, essentially, for the Minister to read into the record the contents of the letter the noble Baroness received, in which the Minister explained the nature of the process when people breach the DAPO.

I thought I would address a couple of the points made by the noble Baroness, Lady Fox, when she opened her contribution, in her typically provocative way, by saying she feared that the state was expanding its coercive powers. In some ways, the situation is more extreme than she or the noble Lord, Lord Paddick, said.

I remind the House that I sit as a magistrate in family and criminal cases; in particular, I sit on domestic abuse-related criminal cases. In domestic abuse criminal cases, if we find a perpetrator not guilty, we still occasionally give them what is now called a restraining order. We do that because although the necessary standard of proof has not been met, the alleged victim is clearly vulnerable, so we put a restraining order in place in any event. In the family court, we use non-molestation orders.

The purpose of the DAPO is to supersede restraining orders and non-molestation orders, but we very frequently put non-molestation orders in place without the alleged perpetrator present. The alleged perpetrator will be told of it and given an opportunity to come to court and argue against the imposition of a non-molestation order, but the reason the process is as I have described is to protect the woman, as it is usually. I understand that the purpose of the DAPN and the DAPO is to supersede the arrangements we have in place.

I understand the points the noble Lord, Lord Paddick, made about the appropriateness of these sorts of orders when compared to ASBOs and community protection notices. They are points he has made before and they are interesting. Nevertheless, as I said in my opening, I see that the purpose of this short debate is for the Minister to put on the record the contents of the letter he has written to the noble Baroness, Lady Hamwee, to make crystal clear the standard of proof that would be necessary to get a conviction for breaching these orders.

15:00

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

My Lords, as I indicated in Committee, I agree with the general aim of the amendment, which is to ensure that criminal liability and punishment for a breach of a DAPO should occur only if the breach is proved to the criminal standard of proof. I heard from the noble Baroness, Lady Hamwee, and a number of other contributors to this short debate that the essential purpose of the amendment is for me to repeat from the Dispatch Box what I set out in a letter. I will aim to do just that.

I therefore make two main points. First, a breach of a DAPO is a criminal offence. As with all criminal offences, this will require the police to investigate the case and refer it to prosecutors, who will decide whether to pursue a prosecution. Secondly, the fact that a breach of a DAPO is a criminal offence means that, as with all criminal offences, the criminal standard of proof will apply automatically when the court is dealing with the case. A criminal conviction cannot be entered, or criminal sanctions imposed, unless and until the criminal standard of proof has been met.

The criminal standard of proof applies, therefore, when we are dealing with a breach of a DAPO. It does not apply when we are dealing with the making a DAPO. When we look at whether a DAPO should be made, the civil standard of proof applies—that is, the balance of probabilities. But in order to impose criminal sanctions for its breach, the criminal standard of proof will apply—that is, beyond reasonable doubt. I hope that has set out the position clearly and unambiguously.

Picking up on the point made by the noble Baroness, Lady Fox of Buckley, “beyond reasonable doubt” is the standard of proof; “without reasonable excuse” is an element of the offence, which would have to be proved to that standard. That is the difference between the two phrases.

We have taken this approach to the DAPO because we want to send a clear message to perpetrators that breach of an order is a serious matter and will be acted on. As I stated in Committee and during my engagement with the noble Baroness and others since, this approach is similar to other civil protective orders that carry criminal liability for breach, such as the non-molestation order, stalking protection order and knife crime prevention order. The approach is therefore consistent with our existing legal framework.

The noble Baroness, Lady Hamwee, asked why some victims may not want to go for criminal sanctions. That might not be their preference for a number of reasons. First, they may be concerned about the possible consequences for their partner or ex-partner and would not want them criminalised for a breach or, indeed, if the point of the question was, “Why isn’t the original order criminal?”

Fundamentally, the proposed orders are intended to be preventive and not punitive. They will enable courts to impose positive requirements which can help to achieve long-term sustainable behaviour change and challenge perpetrators to address their abusive behaviour. For example, the perpetrator might be required to attend a behaviour change programme or an alcohol or substance misuse programme, or undergo a mental health assessment. That may help those victims who wish to maintain a relationship with their partner or family member but want the abuse to stop. It is a strength of the DAPO that it is such a flexible remedy.

The noble Baroness, Lady Hamwee, raised contempt of court. If a victim wanted a breach of an order other than one made in a magistrates’ court to be dealt with as a civil contempt of court, they could make a committal application to the court, including for an arrest warrant, if necessary. In those circumstances, the court has the power to remand the perpetrator on bail or in custody. We would expect that victims’ views would be considered, together with other questions of public interest, when deciding which sanction for breach is appropriate.

On her point about the guidance, the noble Baroness, Lady Hamwee, will recall that in Clause 48 there is a provision for guidance to the police, and in Clause 73 there is provision for guidance to others, including victims.

This is one of the strengths of the DAPO when compared to other existing orders used in these cases, such as the domestic violence protection order. The responses to our consultation highlighted that the absence of a criminal sanction following breach of the DVPO limits the effectiveness of that order. We have therefore ensured that non-compliance with a DAPO is met with the appropriate consequences. In that regard, I reiterate a point I made in Committee: in its report, the Joint Committee did not raise issues with using the civil standard of proof for making a DAPO when examining the draft Bill.

As the noble Lord, Lord Ponsonby, noted, the noble Lord, Lord Paddick, raised on a number of occasions that we are making a move from civil standard to criminal standard when breached. With respect, I have set out the Government’s position in response to that on a number of occasions. We are satisfied that the system we have in the Bill is appropriate. There is nothing in the point, I would respectfully say, that there is something wrong with criminal sanctions on breach for an order made on the balance of probabilities. They are two conceptually distinct questions First, what is the standard for the order to be made? Secondly, what do you have to prove for criminal sanctions when there is a breach of that order?

As for the question on going to the magistrates’ court, one of the strengths of this order is that it can be issued quickly in response to a crisis incident, as with the existing domestic violence protection order. As the noble Lord, Lord Ponsonby of Shulbrede, said, ultimately, we are dealing with the question of protection for victims.

I hope that my explanations on the standard of proof in this short debate, alongside the explanations I provided in Committee and my subsequent discussions with noble Lords, have been helpful. I hope that what I have said today has been clear and unambiguous. I therefore respectfully invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee (LD) [V]]

My Lords, I think my noble friend Lord Paddick’s question about the underlying architecture, if that is the right phrase, still stands, but I will not pursue it now. I am grateful to the Minister for all he said about the application of the provisions. I did not make myself as clear as I should have done about what he explained as someone not wanting to go for criminal prosecution. That was not quite my point, which was about inability and due process, which is a term we would do well to keep in mind—due process for both parties.

The Minister has been very clear in his explanation of the standard. I am conscious of how much business the House has to get through today, so I will not prolong this. I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

[The Deputy Speaker (Lord Faulkner of Worcester) (Lab)]

We now come to the group beginning with Amendment 19. I point out to the House that Amendment 98 should also be considered in this group. It was left out inadvertently.

Amendment 19

Moved by

[Baroness Newlove]

19: After Schedule 1, insert the following new Schedule—
“SCHEDULE STRANGULATION OR SUFFOCATION: CONSEQUENTIAL AMENDMENTSPolice and Criminal Evidence Act 1984
1_ In section 65A of the Police and Criminal Evidence Act 1984 (qualifying offences for the purposes of Part 5 of that Act), in subsection (2), after paragraph (r) insert—“(ra) an offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation).”Housing Act 1985
2_ In Schedule 2A to the Housing Act 1985 (absolute ground for possession for anti-social behaviour: serious offences), after paragraph 14 insert—“14A_ An offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation).”Criminal Justice and Public Order Act 1994
3_ In Part 1 of Schedule 7A to the Criminal Justice and Public Order Act 1994 (offences in England and Wales for which cross-border powers of arrest available), for paragraph 24 substitute—“24_ An offence under either of the following provisions of the Serious Crime Act 2015— (a) section 45 (participating in activities of organised crime group);(b) section 75A (strangulation or suffocation).”Crime and Disorder Act 1998
4_(1) Section 29 of the Crime and Disorder Act 1998 (racially or religiously aggravated assaults) is amended as follows.(2) In subsection (1), after paragraph (b) (but before the “or” following it) insert—“(ba) an offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation);”.(3) In subsection (2), for “or (b)” substitute “, (b) or (ba)”.Youth Justice and Criminal Evidence Act 1999
5_(1) Schedule 1A to the Youth Justice and Criminal Evidence Act 1999 (proceedings in which witnesses are automatically eligible for assistance on grounds of fear or distress about testifying) is amended as follows.(2) After paragraph 29 insert—“Serious Crime Act 201529A_ An offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation) in a case where it is alleged that—(a) the accused was carrying a firearm or knife at any time during the commission of the offence, and(b) a person other than the accused knew or believed at any time during the commission of the offence that the accused was carrying a firearm or knife.”(3) In paragraph 30, after “paragraphs 1 to 8” insert “or 29A”.Sexual Offences Act 2003
6_ In Schedule 5 to the Sexual Offences Act 2003 (cases where sexual harm prevention orders may be made), after paragraph 63B insert—“63C_ An offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation).”Criminal Justice Act 2003
7_ In Part 1 of Schedule 15 to the Criminal Justice Act 2003 (violent offences specified for purposes of certain custodial sentences), before paragraph 63G insert—“63FA_ An offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation).”Domestic Violence, Crime and Victims Act 2004
8_ In section 6A of the Domestic Violence, Crime and Victims Act 2004 (evidence and procedure in cases of serious physical harm: England and Wales), in subsection (2), at the end insert—“(c) an offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation).”Children Act 2004
9_ In section 58 of the Children Act 2004 (reasonable punishment: England), in subsection (2), after paragraph (c) insert—“(d) an offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation).”Criminal Justice and Immigration Act 2008
10_ In section 98 of the Criminal Justice and Immigration Act 2008 (violent offender orders), in subsection (3), after paragraph (d) insert—“(da) an offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation);”.Modern Slavery Act 2015
11_ In Schedule 4 to the Modern Slavery Act 2015 (offences to which defence for slavery or trafficking victims under section 45 of that Act does not apply), after paragraph 35 insert—“Serious Crime Act 2015 35A_ An offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation).”Sentencing Act 2020
12_(1) The Sentencing Act 2020 is amended as follows.(2) In section 67 (assaults on emergency workers), in subsection (3), after paragraph (a) insert—“(aa) an offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation);”.(3) In Part 1 of Schedule 18 (violent offences for which extended sentence of imprisonment available), after paragraph 25 insert—“Serious Crime Act 201525A_ An offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation).””Member’s explanatory statement
The new Schedule amends other legislation in consequence of the proposed new Clause in the name of Baroness Newlove that provides for an offence of strangulation or suffocation.

[Baroness Newlove (Con) [V]]

My Lords, the amendments in this group are government amendments tabled in my name. The principal amendment in this group is Amendment 49, which is also in the names of the noble Baronesses, Lady Wilcox and Lady Meacher. Amendments 19, 89, 95, 98, 100, 101 and 106 are consequential amendments. Amendment 49 establishes a specific offence of strangulation or suffocation. My noble friend the Minister has added his name to this group of amendments and has indicated to me the Government’s support for them. I thank my noble friend and welcome his support.

I am grateful to the Government for listening to this House and to the many organisations which have worked tirelessly for this vital change. I thank especially the women who have shared with me and other organisations their horrific experiences of strangulation and suffocation; this has helped make the case for this change in the law. One such woman is Rachel Williams. Rachel was strangled and then later shot by her partner. She was severely injured. I put on record my thanks to her for her tireless work in getting this offence recognised, as well as in supporting other victims through the organisation she has set up, Stand Up to Domestic Abuse. This year, 2021, is the year when we can be so proud to say to the thousands of victims and survivors who have suffered from this brutal act, and to their families, that your Lordships’ House is making this change.

I also pay tribute to all those who have worked side by side with me since Committee to ensure that a suitable amendment came together, as we have in front of us today. They include my successor as Victims’ Commissioner for England and Wales, Dame Vera Baird; the domestic abuse commissioner designate, Nicole Jacobs; the noble Lords, Lord Marks, Lord Anderson, Lord Blunkett and Lord Trevethin and Oaksey, and the right reverend Prelate the Bishop of London. Last but not least, I give a huge thank you to Professor David Ormerod. I am most grateful to all noble Lords around the House who have indicated to me their full support during the debates that we have had.

I know that I would not have got here without the incredible work of Nogah Ofer and the Centre for Women’s Justice, and Dr Cath White, the clinical director of SAFE Place Merseyside, whose detailed research and understanding of these cases has produced a strong case for reform. I am very conscious that they have done much of this work in their own time and my thanks go to them personally as well as to their organisations. Moreover, the work of the charity Advocacy After Fatal Domestic Abuse has been pivotal in getting us here today. I have huge respect for the chief executive Frank Mullane, who works tirelessly to help support traumatised families and ensures that professional training is given towards understanding domestic homicide reviews.

It is now accepted that our existing laws on assault are a very poor fit for strangulation and suffocation. Current laws focus on visible injuries, but with strangulation and suffocation there can be a high level of violence but few or no visible marks. Having a stand-alone offence will make assessing cases much more straightforward for the police as well as prosecutors. Implementation will be crucial. There will need to be appropriate training for police officers, the CPS, medical staff and domestic abuse workers. This will, of course, need financial resourcing. However, such investment into stopping domestic abuse at the very first opportunity will save countless lives of misery and the far greater costs of addressing further horrific crimes, including homicides, as well as suicides where domestic abuse is a factor. Implementation needs to be thorough and consistent across England and Wales.

15:15

I am concerned that many police forces’ specialist or dedicated domestic abuse units have been disbanded or so downsized that they cannot provide the service that victims have every right to expect. If this new offence within this landmark Bill is truly going to cause a sea-change in attitudes—a change that we desperately need—domestic abuse in all its forms must become a priority for all police forces, so that victims everywhere feel their voices are heard with dignity and respect and they are given the support that is needed for them to feel confident in and trust the criminal justice system.

I will leave it to the Minister to deal with the technicalities of the amendments but there are some obvious changes from Committee. The maximum sentence proposed here is five years, rather than seven, to bring it in line with the normal maximum sentence for actual bodily harm. The provision now includes the offence when carried out abroad by a UK national, which it is right to catch under this legislation. The new amendment introduces a limit on the consent normally allowed in law, so that a defendant cannot rely on a defence of consent if serious harm is caused, even if the defendant did not intend to cause the harm but was reckless; that is, they were aware that there was a risk of harm when they strangled someone but disregarded it. This limit to the defence of consent is in line with the “rough sex” defence amendment, which has become Clause 65 of the Bill. I accept the need for consistency, and I know that strangulation and suffocation can be part of rough sex.

Personally, I am concerned that many young people consent to violent acts because they feel pressured or coerced by partners and because of the normalisation of this violence through pornography. They may not be aware of the serious harm that this causes; even death can be caused in a matter of seconds. In a BBC survey of over 2,000 participants, 38% of women under 40 had experienced strangulation during sex; for women aged 18-24, this rises to 54%. Of the women who had been strangled or experienced other violence during sex, 53% had at least sometimes not consented; 42% of them said that on some or all occasions they had felt pressured, coerced or forced.

My warning to those considering consenting is that there is no evidence that strangulation improves the sexual experience for women, but there is evidence that men routinely use strangulation as a method of assault, and it is dangerous. When people speak of strangulation for sexual gratification, they really mean sexual gratification of men at the expense of women’s safety.

It is important that where consent is raised and disputed, the CPS opposes such defences robustly to get across the message that strangulation can be very dangerous, and that using it is reckless as there is always a risk of harm because you are depriving the brain of oxygen. Restricting oxygen to the brain, even for a short time, can have long-term consequences such as neurological damage.

However, within domestic abuse most cases of strangulation are not to do with sex. In these cases, the strangling is usually part of an episode of aggression and the issue of consent is not raised by the police or the CPS. This new offence will make it clear that it must be taken seriously, not dismissed because there are no visible marks. The offence heightens the level of risk for the victim of further abuse.

If the implementation of the Bill is properly resourced and monitored, this will really be the start of a tangible change in attitudes towards a particularly horrifying form of domestic abuse. I hope we will see the culture shift so that such abuse becomes unacceptable to everyone. The new offence is just one part of the changes needed, and I urge all noble Lords to support the amendments. I beg to move.

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

My Lords, I warmly commend the sterling efforts of the noble Baroness, Lady Newlove, to see the introduction of new offences of non-fatal strangulation or suffocation. The noble Baroness generously mentioned a number of organisations and people who have helped her but she deserves huge credit for the way in which she has championed this action, which I am delighted to see in today’s amendments.

The noble Baroness’s speech was very powerful. The statistics that she shared with us about the relationship between strangulation and sex were shocking but, as she said, it goes much further beyond that as well. Indeed, she has explained at previous stages of the Bill that non-fatal strangulation and suffocation have the unique characteristic of being extremely harmful physically and psychologically but often with no external physical signs. Because of the lack of observable injuries and the lack of understanding of the seriousness of the offence, strangulation when charged is generally pursued as a summary offence of common assault in the magistrates’ court. Undercharging limits sentencing options, and a summary offence also deprives the victim and the defendant of the greater resources and attention devoted to a Crown Court prosecution. Without the establishment of a separate offence, those unique characteristics mean that more victims would suffer and be killed in future.

The amendment tabled by the noble Baroness, Lady Newlove, creates a new criminal offence of strangulation or suffocation. The offence will apply where a person intentionally strangles another person, but it will also cover a range of behaviours, including suffocation and other acts that affect the person’s ability to breathe and which amount to battery. Alongside the new offence must go training and strong guidance to police forces and other statutory agencies about how it is to be implemented, but today is a very significant step forward. I am grateful to the Government for responding to the noble Baroness, Lady Newlove, and I warmly welcome the amendments.

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

My Lords, I too welcome the amendments. I welcome the new offence of non-fatal strangulation and suffocation. I echo the noble Lord, Lord Hunt of Kings Heath, in saying that this is a very significant achievement for the noble Baroness, Lady Newlove. As she generously said in opening the debate, many have helped to bring this new offence to the statute book, but she has been the driver throughout. This has not been for herself; her motivation has been to relieve the suffering of victims.

We on these Benches have given the noble Baroness our wholehearted support throughout. It was always an extraordinary anomaly that non-fatal strangulation was not a specific offence. As discussed in Committee, cases of strangulation were generally charged, and therefore sentenced, as assault occasioning actual bodily harm at most—for the reason, which she explained, that they often left little or no mark. The result was that strangulation and suffocation were undercharged and underpunished, and indeed often not punished at all. That was all despite the appalling truth that strangulation was so much the marker of more generalised domestic abuse, and despite the tragic fact that so often it turned out be a predictor of future killing.

I am very grateful to Ministers for engaging with so many of those concerned with the promotion of these amendments. The noble Lord, Lord Anderson of Ipswich, and I had the opportunity to discuss the legal aspects of the new proposed offence with Ministers, and the Government quickly saw the strength of the argument for a specific offence. It is a credit to Ministers that, after initial hesitation, they decided to include the new offence in the Bill and resisted the temptation to put it off to a future date. Because of the strong connection with domestic abuse, it is an offence that sits clearly within the Bill, but it was the right decision to work on this with the speed that we have. That decision must have saved many victims from further serious harm and has almost certainly saved lives.

It is right that the new offence is of general application, not just limited to domestic abuse. It would not have been appropriate to confine it to cases within the statutory definition of “domestic abuse” contained in the Bill, despite the overwhelming majority of cases falling within that category. That is because all cases of strangulation or suffocation are required to be treated as specific offences, for the reasons that I mentioned earlier.

I am grateful for the advice of Professor David Ormerod, the former criminal law commissioner at the Law Commission, for his help with the drafting. He changed my view on the consent issue; I had originally been of the view that consent should be no defence, but it is right that there is a defence of consent—to cover, for example, cases of sporting contests that lead to injury—provided that serious harm was unintended. That proviso is elegantly drafted in the amendments before us. I know the Government are also grateful for the generosity with which he gave his advice, and for the advice of the Law Commission.

In my view, the broad definition of “serious harm” in proposed new subsection (6) to include actual bodily harm is right. It will be less difficult to prove, in cases of both physical and psychiatric injury, than if the only harm that met the required criteria were those for grievous bodily harm or wounding offences under Sections 18 and 20 of the Offences against the Person Act. It is also right that the new offence has extraterritorial application under the new Section 75B, and we welcome that.

I commend the Government on behalf of these Benches for their comprehensive and well-modulated response to this new offence, and to the amendments by the noble Baroness, Lady Newlove. I congratulate her once again. It is a victory for her but also for the many victims of this horrible crime. It is to be hoped that this provision will ensure that many others are spared both strangulation offences and the possible escalation to fatal violence thereafter.

15:30

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I will keep my remarks short, in view of the amount of work to get through today. I congratulate the noble Baroness, Lady Newlove, who has shown the most incredible tenacity to get to this point. It is absolutely amazing, and an example to us all. Also, if I can say this without sounding anodyne or even boring, I congratulate the Government on picking this up. It was the right thing to do, and I am delighted. It opens the way for survivors of domestic abuse to seek justice and have a legal pathway to see their abusers punished. In later amendments, I will pick up on other areas where women are legally discriminated against very seriously, but for the time being, this is a fantastic move by the Government.

[Lord Blunkett (Lab) [V]]

My Lords, in view of the pressure of time, I shall be brief, but I could not allow this amendment to pass without congratulating all those who have played such a significant part. The noble Baroness, Lady Newlove, has shown enormous tenacity. There are times in all our parliamentary, public and political lives when we suddenly realise that we can make a real difference to the well-being, and in this case the lives, of others. I congratulate her from the bottom of my heart. I pay tribute to those whom she generously paid tribute in her speech, and also to her co-signatories, my noble friend Lady Wilcox and the noble Baroness, Lady Meacher, who have stuck with this all along.

Unusually for these Benches, I congratulate, as my noble friend Lord Hunt did, the two Ministers, who have been assiduous in their preparedness to listen, respond and be flexible. This is the House of Lords at its best. Parliament is at its best when people listen to each other, where divides are narrowed and overcome, and where people of good will are prepared to find a way forward in the interests of the people whom we seek to serve in the country as a whole.

I have played a very small part in this, but I like to think that the Minister, as I said to him on another occasion, would not wish to put his parliamentary colleagues in the House of Commons in the invidious position of voting down such an important and critical measure. He certainly listened, as have the Government. Will we be able to do so on other issues?

Today there will be many votes. It should not diminish the importance of the Bill that we have continuing issues to raise, because this is a really important piece of legislation. I have one thing to put on the record on the statistics that the noble Baroness, Lady Newlove, gave us this afternoon. This is about power and domination, never about love. It is about people who are prepared to use their manhood for ill, not for good. It is about inadequates who then inflict their inadequacy on the people they claim to love. If we can put that message out to young men in particular, we will have done a very proud job of work this afternoon.

I thank the noble Baroness, Lady Newlove, for what she has done. Many people will have cause to thank her in years to come.

[Baroness Meacher (CB) [V]]

My Lords, this Bill will be remembered in years to come for the many important changes and reforms that will be introduced through it, but without doubt one of the most welcome changes will be the recognition of non-fatal strangulation in law and, we hope, the effective response by the criminal justice system. I say “welcome”; this particular amendment will be most welcomed by the most severely abused women who suffer this particularly horrible crime. As others have said, the noble Baroness, Lady Newlove, has done a superb job, supported by some pretty superb people, in steering the amendment to this point. She has said pretty well all that I would have said, and therefore I will be extremely brief.

The only point that has not been mentioned is that if we really want the amendment to achieve what it should achieve, which is the appropriate response by the police, the courts and so on, then training police officers so that they are aware of this stand-alone offence will be very important, and maybe a little training for doctors, although they should certainly be aware of what a strangulation looks like. Can the Minister say anything about that?

Like others, I say a tremendously sincere thank you to our Ministers, who have really listened. The noble Baroness, Lady Williams, has been a marvellous Minister in this House for a long time now, and we now have the benefit of the noble Lord, Lord Wolfson, as well as the noble Lord, Lord Parkinson. We are very lucky to have those Ministers in this House and I pay credit to them.

[Baroness Burt of Solihull (LD)]

My Lords, like others who have spoken, I am absolutely delighted at this outcome and grateful to the noble Baroness, Lady Newlove, and the two Ministers for addressing this gap in the legislation by giving this cruel and dangerous offence its rightful place as a crime in its own right. I congratulate all outside and inside this place who have campaigned for years to bring non-fatal strangulation on to the statue book. This will make a huge difference, as others have said, to the police, who will be given the confidence to arrest perpetrators. Judges will be able to bring the full force of the law on these sadistic, controlling criminals, who threaten, hurt, maim and kill their terrified victims.

Nothing that I can say can add to the cogent, clear contribution of the noble Baroness, Lady Newlove. As my noble friend Lord Marks said, this is a victory not only for her, but for all those victims from the past and the future who will now get justice, as well as greater awareness that this is not okay, and, as the noble Lord, Lord Blunkett, says, is nothing about love.

[Baroness Wilcox of Newport (Lab) [V]]

My Lords, the important issue of non-fatal strangulation has been powerfully supported by the noble Baroness, Lady Newlove, throughout the passage of this Bill, and she deserves every plaudit available to her for taking this through. I add my thanks to the Ministers engaged in this matter and echo the comments of my noble friend Lord Blunkett, which emanate from his huge experience in the Commons. This is indeed the House of Lords at its best, and I am delighted that the Government have listened and introduced Amendment 49.

Having the separate offence of non-fatal strangulation on the statute book will help the police to stop domestic abuse and coercive control. One of the UK’s leading domestic abuse campaigners is Rachel Williams, whom I got to know very well during my time as leader of Newport City Council. She lobbied me at every opportunity on these matters. She currently has a petition running on change.org to ask the Prime Minister to amend the law on non-fatal strangulation. She says in her petition:

“Strangulation is a very symbolic act of control which leaves its victim in no doubt that there is a real and visceral threat to their life. If you put your hands on someone’s throat and squeeze the message and terror for the victim is clear.”


As a survivor of domestic violence, Rachel really knows what impact that has.

Strangulation is a very particular form of assault for three reasons: it is likely to cause serious injury or death, it is perceived by the victim as a direct threat to their life, and it is highly predictive of future homicide. A separate offence on the statue book will give the power to the police and the justice system to treat these offences with the seriousness that they deserve. I am delighted to tell Rachel, and the 108,609 people who had signed her petition when I last checked, that this amendment will ensure that the law is indeed changed, and that non-fatal strangulation will become a stand-alone offence on the face of this landmark Bill.

[Lord Wolfson of Tredegar (Con)]

My Lords, first, I congratulate my noble friend Lady Newlove on bringing forward these amendments, which, as she said, will create a new criminal offence of strangulation and suffocation. A number of tributes have been paid to my noble friend; they are all well deserved and I associate myself and the Government with them. If I may pick up one phrase used by the noble Lord, Lord Blunkett, she has made a real difference and, moreover, in a really important area. I assure him and the House that we listen. I will listen to noble Peers on this and on other matters. We will not always agree but I will always listen.

There have been a number of powerful and brief contributions. The noble Baroness, Lady Jones of Moulsecoomb, was kind enough to thank the Government, which is very welcome. I will seek to make it a more regular occurrence but it is warmly accepted. As the noble Lord, Lord Hunt of Kings Heath, mentioned, and as my noble friend Lady Newlove identified, a number of organisations have worked hard in this area. Their names are on the record and they deserve the credit as well.

I am also personally grateful to the noble Lord, Lord Marks of Henley-on-Thames, for the discussions which he and I have had on this matter, together with the noble Lord, Lord Anderson of Ipswich. They have been extremely useful to me. Perhaps I may also pick out some good discussions I have had with somebody who did not contribute to this debate but has worked hard in this area: the noble Baroness, Lady Bertin. She certainly improved my knowledge of and focus on this matter.

My noble friend Lady Newlove has highlighted to the Government why this new offence was necessary. She has engaged with me and my officials, to whom I should also pay tribute for working at significant speed, together with Professor David Ormerod—I think I can now say Professor David Ormerod CBE. This is not the first time, and will not be the last, that he has contributed significantly to the criminal law of this country. I will take a few moments to explain the architecture of the offence, because it is a new offence.

The key amendment in the group is Amendment 49, which provides for the substantive new offence. Strangulation and suffocation are always dangerous and, subject to the issue of consent, which was raised by a number of noble Lords and which I will come back to, they are wholly unacceptable. Strangulation can not only injure but be used by perpetrators to cause fear or exert control over their victim, as part of an abusive relationship.

Amendment 49, as I have stated, seeks to create a new offence of non-fatal strangulation or suffocation in England and Wales. It applies to behaviour which is currently criminal, so the aim is to improve the ability to prosecute such offences effectively—a point made by a number of noble Lords. The offence is designed to deal with assaults on any person where this affects their ability to breathe, whether by application of force to the neck—that is, strangulation—or by any other act; for example, by suffocation or constriction. The offence applies to all cases where strangulation or suffocation takes place, including those that occur in a domestic abuse situation. To pick up the point made by the noble Lord, Lord Marks of Henley-on-Thames, this offence is not restricted to domestic abuse situations but it is quite right that it is in this Bill, because it is often found in those situations.

Although such criminal behaviour can currently be captured under the offence of battery or, where more serious harm is caused, via the offence of causing actual bodily harm under the Offences against the Person Act 1861, the Government have been persuaded of the need to distinguish such crimes through a stand-alone offence. Serious offences against the person currently require actual bodily harm, which can make cases of strangulation or suffocation potentially difficult to prosecute. That is because the victim may have no, or limited, signs of injury. The problem can be compounded by the fact that the existing charge of battery, which carries a penalty of six months’ imprisonment, does not enable the seriousness of the offence as experienced by the victim—the terror caused during the assault or the often long-lasting psychological effect of it—to be suitably punished.

Unlike the summary-only offence of battery, the new offence of strangulation or suffocation will not be time-limited if a prosecution does not commence within six months of the offence. But perhaps of greater importance here, as my noble friend Lady Newlove identified, the new offence will expose the defendant to a more serious sentence than the current six months’ imprisonment for battery. That is because the nature of the harm required to qualify for the maximum five-year penalty has been reduced.

15:45

As is the case under the law for other assaults, the new offence will also provide a defence for the perpetrator to show that the victim consented to being strangled. However, and importantly, that defence of consent will not apply if the victim suffers serious harm, including where the perpetrator intended to cause serious harm or was reckless as to causing harm, regardless of the victim’s consent to those acts.

Noble Lords may ask why consent needs to be addressed here at all. The reason is that the law has to strike a balance. On the one hand, it must not interfere with an individual’s Article 8 ECHR rights to respect for their private life; we also do not want to criminalise low-risk consensual activity. But, on the other hand, we must ensure that any activity which causes serious harm is punished. We have sought to strike that balance in a manner which reflects the current law of the land. That was established by your Lordships’ House in its previous judicial function, which some of us still remember, in its decision in 1993 in the case of R v Brown.

If I can summarise a very long decision in one sentence, it would be this: where a victim consents to an act that amounts to no more than a battery, the consent of the victim can be a valid defence for the perpetrator. Subsection (3) of proposed new Section 75A, however, also gives effect to the other aspect of R v Brown in that a person ordinarily cannot consent to having serious harm inflicted upon them. This is linked to Clause 65 of the Bill, which lists the three assault offences for which, to cite R v Brown, consent to serious harm for sexual gratification is not a defence. That, of course, ties into the point made by the noble Baroness, Lady Burt, when she said that this is nothing about love. Importantly, exceptions that are recognised separately under the common law in relation to sports and other activities will not be affected and will also apply here. In such cases, where serious harm is caused the courts will consider this offence inapplicable where an existing public policy exemption applies.

The extraterritoriality point was raised by a number of contributors. A new Section 75B is to be inserted into the Serious Crime Act 2015, providing extraterritorial jurisdiction for the offence created by new Section 75A. It will mean that where the offence of strangulation or suffocation is committed outside the United Kingdom by a UK national or a person habitually resident in England or Wales, they can be prosecuted for the offence in England and Wales as if they had committed the offence in England and Wales.

Finally, given that the creation of a new offence of strangulation or suffocation is being achieved here, a number of consequential changes are required, including a new schedule and a change to the Long Title. These are set out in Amendments 19, 89, 95, 98, 100, 101 and 106. The amendments in the new schedule add this new offence to existing lists of mainly violent offences which trigger special consequences; for example, at paragraph 12(3) of the schedule it becomes a violent offence for which an extended sentence of imprisonment is available.

The noble Baroness, Lady Meacher, who has also put her name to Amendment 49, asked about training. In short, whenever there is a new offence, the police and CPS consider training for that new offence. Such training is a matter for them but I am sure that all those involved in the criminal justice system will be alive to the point that she made.

I hope it is not impertinent to say, as a recent arrival in your Lordships’ House, that I respectfully endorse the comment made by the noble Baroness, Lady Wilcox of Newport, who also put her name to Amendment 49. She said that the amendment—and, if I may say, the work that has led up to it—has shown the House at its best. As a new Minister, it has been a pleasure to work with everybody involved in this matter. I am very conscious that I am taking some of the credit for work done by other Ministers, including my predecessors.

To conclude, it is important when considering the creation of any new criminal offence that the offence is proportionate, and that it allows for more prosecutions to brought and convictions secured. As I stated in Committee, there were several difficult legal and technical issues which needed to be considered, particularly matters such as consent and the application of existing public policy exceptions, including those that exist for sports.

The Government are happy to agree that the amendments now address those points while ensuring that crimes of strangulation or suffocation can be prosecuted, with the perpetrators of such crimes more readily brought to justice. I therefore join my noble friend in commending these amendments to the House.

[Baroness Newlove (Con) [V]]

My Lords, I thank everybody in the Chamber and speaking virtually for their very kind words. This is the first Bill I have been completely involved with and I have been blown away by the experience, knowledge and huge support I have received from each and every noble Lord.

I thank my noble friend the Minister and my noble friend Lady Williams because they have truly listened and taken everything that has been discussed on board. I am not a lawyer or barrister so I thank those I call my “legal eagles”— I mean them no disrespect by that —who have the brains to narrow this down and support the victims of this horrific and violent offence.

I have goosebumps about what has been said. I think the best words were from the noble Lord, Lord Blunkett, when he said that this shows the House at its best. When we listen, we learn, and we can resolve to get what is needed for the victims on the ground. I especially thank the noble Baroness, Lady Meacher, who has been by my side throughout this passage of the Bill. I appreciate her expertise and, more importantly, her support. I also thank the back-room staff and the government lawyers, who have worked really quickly for us to get to this point today.

To all the victims and survivors who have challenged for change to get this support for many years, I say: this is your day, you are the heroines of what we are discussing. All of us across the Chamber, no matter our political party, have achieved the very best we can for you on strangulation and suffocation. It is for you, the victims of these horrific offences, that I urge all noble Lords to support these amendments.

The one thing I would like to ask—and the best thing I have always said throughout my journey—is that we treat victims and survivors with dignity and respect. One of the sincerest forms of respect is listening to what another has to say, to hear them and help them, so that they will no longer struggle on a daily basis as we progress this Bill. I hope that noble Lords will support these amendments.

Amendment 19 agreed.

Clause 55: Support provided by local authorities to victims of domestic abuse

Amendment 20

Moved by

[Lord Wolfson of Tredegar]

20: Clause 55, page 35, line 25, leave out “domestic abuse” and insert “accommodation-based”
Member’s explanatory statement
This amendment, and the Minister’s amendment at page 35, line 30, would change the current label of “domestic abuse support” in Clause 55 to “accommodation-based support” and are consequential on the Minister’s other amendments to Clauses 55 and 56 relating to “other local authority support”.

Amendment 20 agreed.

[The Deputy Speaker (Lord Faulkner of Worcester) (Lab)]

We now come to the group consisting of Amendment 21. Anyone wishing to press this amendment to a Division must make that clear in debate.

Amendment 21

Moved by

[Baroness Finlay of Llandaff]

21: Clause 55, page 35, line 28, at end insert—
“( ) ensure all child contact centres and organisations that offer child contact services are accredited in accordance with national standards in relation to safeguarding and preventing domestic abuse as specified in regulations made by the Secretary of State.”

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, I am most grateful to the Minister for meeting me and the noble Lord, Lord Ponsonby, and the noble Baronesses, Lady McIntosh of Pickering and Lady Burt of Solihull, over this vexed issue of child contact centres.

A little history is important here. In 2007 the Department for Education commissioned the National Association of Child Contact Centres, the NACCC, to develop national standards for child contact, but no regulatory framework was created. The NACCC and the Children and Family Court Advisory and Support Service, Cafcass, agreed a memorandum of understanding on service delivery accreditation standards and safe- guarding protections to keep children safe. This cross-party amendment builds on the work of both. They, along with Women’s Aid, Family Action and Barnardo’s, all support this amendment.

The amendment aims to ensure that these standards protect children wherever they have facilitated contact. The NACCC, Cafcass and key sector providers, including the Salvation Army, Barnardo’s, Family Action, Relate, Action for Children and Core Assets, all do an outstanding job and these third sector organisations agreed by consensus in 2019 that regulation is required by the sector.

Accredited child contact centres and services have clear procedures and staff training and support staff in decision-making where risk may be present, including in safeguarding children and preventing domestic abuse. Sadly, it is not uncommon for one or both parents to have deep-seated problems, including risks of problems with alcohol and/or drug abuse, and the risk of ongoing abusive behaviours.

However, many centres and services currently fall outside the oversight of local authorities, NACCC or Cafcass because the current regulatory framework is only voluntary and patchy. Such unregulated provision of centres and voluntary child contact services unfortunately leaves this field open to those of malintent, including paedophiles and those from extremist factions.

I ask noble Lords to ask themselves why anyone who really cares about children would not want to be fully trained in child development and safeguarding. Is it acceptable to leave children already traumatised by being victims of or watching abuse in situations of increased risk? The amendment closes the loophole by providing the Secretary of State with powers to specify regulations and delivery.

As the Minister requested in Committee, we provided an initial review of evidence to the Minister. I am most grateful to the Minister for meeting us. In the list of over 50 centres advertising on the internet, we found some operating without oversight. Local authorities have a duty when commissioning under Section 34 of the Children Act 2004, but financial stringencies and the lack of universal standards contribute to variability. Importantly, not all services are local authority-commissioned.

For example, one child contact centre had NACCC accreditation withdrawn due to safeguarding and health and safety concerns, including Disclosure and Barring Service checks that were not up to date and poor storage security of personal information and records. After the removal of accreditation, the centre accepted a high-risk supervised referral where the father was on the sex offenders register, but the centre could not provide adequately supervised services. It continues to advertise as NACCC-accredited and take referrals from solicitors.

There are also a significant number of child contact centres with no website presence. In the time available, the NACCC could do only a desktop study and so could not ascertain how many are still operating. For example, I have been informed by the NACCC of at least two that are operational, but their details cannot be found anywhere online.

Without oversight and clear standards, there is no way of verifying how these child contact centres and services are operating, and no levers to close them down. Compounding this, the courts’ awareness of the judicial protocol on child contact is patchy, so inappropriate referrals continue to be made.

The motivation behind this amendment is to ensure the safest environment in child contact cases, to allow regular contact between absent parents and children, and to ensure that appropriate safeguards are in place. All this amendment does is provide the Secretary of State with powers to specify regulations and delivery standards. We cannot let a Bill on domestic abuse proceed without ensuring the safeguarding of those children, already victims in family breakdown, in situations where abuse may be ongoing.

16:00

I hope the Minister will be able to tell me that this amendment will be accepted or that the Government will return at Third Reading with an amendment of their own, or give a firm undertaking to bring forward the necessary regulatory standards. At the moment, children are at risk in unsupervised and dangerous situations. The specific question is therefore this: when will the Government lay before Parliament the regulations required to protect children in child contact services? Without an answer to this, I will feel forced to test the opinion of the House. I beg to move.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I declare my interests as vice-president of NACCC and the co-chair of the All-Party Parliamentary Group on Child Contact Centres. I am delighted to join the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Burt, in supporting the noble Baroness, Lady Finlay, in this amendment. I thank her for bringing forward Amendment 21 at this stage. I refer to my previous attempt to plug this legislative loophole in the Private Member’s Bill that I brought forward in 2016-17.

Life is full of choices, and, regrettably, children do not choose when their families will split and break down and their parents separate. What is important for children’s well-being, and in keeping with the United Nations Convention on the Rights of the Child, is that children continue to have contact with both parents following a family breakdown. Often at that time, the absent parent in particular may suffer severe stress from the family breakdown and encounter substance or alcohol abuse. It is extremely important in those circumstances where a child cannot see the absent parent in their own home that they have a safe haven of a secure contact centre, or related services are provided, where contact can safely take place. That is why the terms of this amendment are so important. It is a very simple, straightforward amendment to ensure that all child contact centres and organisations that offer child contact services are accredited in accordance with national standards in relation to safeguarding and preventing domestic abuse, as specified in regulations made by the Secretary of State.

I too am grateful to my noble friend the Minister for the two meetings he has held with us and for sharing the text of the letters he proposed to send, which I will come on to in a moment. At present, as the noble Baroness, Lady Finlay, has explained, while the National Association of Child Contact Centres has been asked to set standards, the regulations required have not yet been put in place. This remains one area of family law which is unregulated. It is essential that the memorandum of understanding between Cafcass and NACCC, to which the noble Baroness, Lady Finlay, referred, be respected by all referrals, and that the judicial protocol also to be followed by family courts is adhered to in all referrals.

I am concerned that my noble friend the Minister appears not to appreciate that child contact centres are the only group that do not have requirements in law, whereas all others—for instance, childminders and nurseries—do. At the moment, anyone can set up a child contact centre. The amendment seeks to ensure that the standards for public and private law provision are the same.

There is evidence that court referrals are, at times, to centres that are not accredited by NACCC or overseen by local authorities, as is required by the judicial protocol. It is also true that awareness by courts of the judicial protocol on child contact is, at times, patchy.

The motivation behind the amendment is to ensure the safest environment in child contact cases, to allow regular contact between absent parents and children, and to ensure that appropriate safeguards are in place, including in instances where a parent may have alcohol or substance abuse issues, as I set out earlier.

While I welcome the proposal of my noble friend the Minister to write to the President of the Family Division and the chief executive of Cafcass, I believe that this is not going far enough. We have a one-off opportunity here to plug the legislative gap, and letters alone will not implement the provisions and put in place the legal framework that we seek to achieve.

I end with a plea to my noble friend the Minister, and all noble Lords, to ensure two things: first, that the same standards will apply for both public and private provision for all child contact centres and services; and, secondly, to accept Amendment 21, providing the legal basis to bring forward the regulations required to achieve this. I believe that this is the only way that we are actually going to do justice to providing a safe environment for the innocent children in a family breakdown, by providing them with a safe haven in which to meet the absent parent. If there is anything short of a full commitment from the Minister in these circumstances, I urge the noble Baroness, Lady Finlay, to test the opinion of the House.

[Baroness Burt of Solihull (LD)]

My Lords, I thank the Minister for meeting the noble Baroness, Lady Finlay, and other supporters of this amendment, including me. There is no agenda here: we just need children to be safely supervised during contact by properly trained people who can spot the signs of stress and distress in children.

On the first day of Report, I spoke to Amendment 15, in the name of the noble Baroness, Lady Armstrong, about the need for training for all who come into contact with victims. Child contact centres are a very strong and sensitive example of the need for training. As the noble Baroness, Lady Finlay said in Committee, the quiet child is not necessarily the happy child. Trained professionals know how to spot the difference and what to do. There are many examples like this, where a trained professional could, and should, intervene to help, to signpost and to stop potential harm being done.

The main issue here revolves around whether unaccredited centres are operating and in what circumstances. We know that court referrals should be made only to accredited centres, but does every member of the judiciary know? The Minister has attempted to reassure us about that. What about non-court referrals? I discussed this with Barnardo’s. Anyone can make a referral to a child contact centre—a social worker or other professional working with the family, a parent, the child who wants contact with their parent, and Barnardo’s itself. Who is making them pick an approved centre, especially when they are likely to be more costly?

Anyone can start up a contact centre. The noble Lord, Lord Wolfson, in his remarks in Committee, asked for proof that unapproved child contact centres were operating. As the noble Baroness, Lady Finlay, said earlier, this has proved difficult to obtain, because there is no obligation on them to register.

In January, the Government launched an independent review into children’s social care. Will the Minister commit to including child contact centres in this review? As it stands, this is not good enough. If the noble Baroness, Lady Finlay, decides to put this to a vote, we on these Benches will support her.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, as the noble Baroness, Lady Finlay, said, the Minister has been generous with his time and has spoken with the group twice. The purpose of this amendment is well understood by the contributors to this short debate and by the Minister. The purpose is simple: it is to close a loophole, to make sure that all child contact centres reach the necessary standard, that there is some form of overview and accreditation and that there are consequences if that standard is not reached.

As the noble Baroness, Lady Burt, succinctly put it, we know that, as far as the courts are concerned, only accredited child contact centres should ever be used. However, what about other referrals to child contact centres? What about private referrals or referrals by local councils or other organisations such as Barnardo’s?

In the discussions that we have had with the noble Lord, Lord Wolfson, he has asked for proof that there is a problem. As the noble Baroness, Lady Burt, said, it is difficult to provide proof, because you are looking for organisations and child contact centres that do not necessarily advertise their services. If they run into problems, they can easily withdraw the advertising and re-emerge in another form, but with the same people running them. At the moment, there are no consequences for people playing fast and loose with the system, if I may put it like that. There needs to be some consistency across the range of services and regulated services that children use. This anomaly needs to be addressed and I can see no better place to do it than in this Bill with this amendment right now. I and my party will support the amendment if it is moved to a vote.

[Lord Wolfson of Tredegar (Con)]

My Lords, as I indicated in Committee, I fully recognise that the provision of child contact centres is extremely important to supporting families and enabling parents to have contact with their children, while at the same time providing a safe environment that protects children and adults from potential harm. As the noble Baroness, Lady Burt, put it, there is no agenda here, in the sense that we all have the same aim. The question is the best means of achieving it.

It is essential that all children experience the same high level of care and safeguarding where circumstances have necessitated their involvement with the family justice system and child contact centres or services. I thank noble Lords and the National Association of Child Contact Centres for their engagement with me and my officials since Committee. I have met, on a number of occasions, several noble Lords who have spoken in support of this amendment. I have found those discussions extremely helpful and I am grateful to them for the time that they gave to discussing the issue with me in more detail.

This amendment differs from the amendment debated in Committee, because it provides that the child contact centres should be accredited in accordance with national standards to be specified in regulations laid by the Secretary of State. The amendment in Committee did not specify who would set the accreditation standards. I continue to question whether the statutory accreditation proposed in this amendment is required or would provide a more effective form of regulation than that which currently exists through the NACCC accreditation framework and the statutory regulations governing local authorities.

I extend my sincere thanks to the NACCC for the useful overview of the current landscape of unaccredited child contact centres and services in England and Wales that it produced following Committee. That review was conducted at some pace and has been used to inform further discussions on this matter. While I accept and take on board the point made by the noble Baroness, Lady Burt, and the noble Lord, Lord Ponsonby of Shulbrede, that it is hard to identify evidence in this area, it is fair to say that the work that was done was at a somewhat high level.

16:15

Since the last debate, and following meetings with the noble Lords sponsoring this amendment, I committed to writing to the President of the Family Division and the CEO of Cafcass, requesting that they raise awareness among their colleagues and officials of the judicial protocol and memorandum of understanding that has been agreed between the NACCC and Cafcass. The protocols that are in place require the judiciary, magistrates and Cafcass family court advisers to refer parties to accredited child contact centres only. I have shared the draft text with relevant Peers and I will send letters to the President of the Family Division and the CEO of Cafcass after this debate.

Again, as I detailed in Committee, local authorities are able, in limited circumstances, to commission unaccredited child contact services. However—and this is an important point—any services that they commission in discharging their statutory duty to allow reasonable contact between a child in their care and parents fall within Section 22(3)(a) and Section 34 of the Children Act. Those provisions require local authorities to ensure consistency with safeguarding and promotion of the child’s welfare. Therefore, respectfully, I do not agree that there is a legislative gap in this area or, to use the word used by the noble Lord, Lord Ponsonby of Shulbrede, a loophole. Rather, the Government remain convinced that, given the regulatory and compliance mechanisms already in place with regard to local authorities, a requirement of mandatory accreditation for such services would impose an additional layer of costs and bureaucracy on local authorities, which already face significant resourcing pressures.

As I indicated in Committee, the Government continue to be willing to work with the NACCC and other interested parties to keep the situation regarding child contact centres and services under review. The work undertaken by the NACCC provides a good starting point from which to build a more robust evidence base around this issue, which would cover both public and private law. However, I am not persuaded, despite the rapid and, as I have said, informative work of the NACCC following Committee, that we today have enough evidence on which to legislate for the accreditation of child contact centres and services at this time.

Given what I have said this afternoon and my clear commitment to follow up on this debate with the President of the Family Division and the chief executive of Cafcass, I hope that, despite the comments that she made in her speech introducing the amendment, the noble Baroness, Lady Finlay, will be content to withdraw it.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

I have a request to ask the Minister a short question from the noble Baroness, Lady McIntosh of Pickering.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, may I address head on two points that the Minister has raised? First, the case has been made of how difficult it is to access the evidence and whether it is in the public interest to put this in the public domain. This is an extremely sensitive area and we have done our best to provide the evidence on the two occasions when my noble friend has requested it. Secondly, there is a legislative loophole. The Government undertook to come forward with regulations to establish the regulatory framework to set the standards in place and they have failed to do so. For what reason have the Government not brought forward these regulations and why are they not prepared to bring them forward at this time? I am at a loss to understand why that is the case.

[Lord Wolfson of Tredegar (Con)]

I will be brief. On the first point that my noble friend raised about evidence, I accept that people have done their best in the short time available. However, with respect, the points that I made about the high-level nature of that evidence stand. At the moment, we are not persuaded that there is a need to legislate in this area. On the second point about the loophole, I would be repeating what I said earlier. For the reasons that I set out, the position at the moment is that the use of unaccredited child services is rare. In circumstances where they are used by local authorities, that would be covered by their statutory duty under the Children Act. In those circumstances, we are not persuaded that the amendment is required or would even necessarily be effective.

[Baroness Finlay of Llandaff (CB) [V]]

I am most grateful to the Minister for his fulsome reply and for trying to get to grips with this issue, but I point out that it has been 14 years since the need for standards was originally raised. I did not mention some cases in my speech today because I have not been able to check them out in detail—we could not track down the details of the services—but I have names of services that I would be prepared to share in confidence with the Minister. I believe that there is evidence that this area is unregulated, that there is a gap and that children are at risk now, today. If we are dealing with domestic abuse, we must not leave children vulnerable. Therefore, I wish to test the opinion of the House.

16:21

Division 1

Ayes: 310

---

Labour: 137
Liberal Democrat: 76
Crossbench: 69
Independent: 14
Democratic Unionist Party: 5
Bishops: 4
Green Party: 2
Conservative: 1
Plaid Cymru: 1

Noes: 237

---

Conservative: 213
Crossbench: 15
Independent: 8
Ulster Unionist Party: 1

[Owing to an administrative error, the total number of Members voting Content was misreported as 310. The correct total was 311.]

16:33

Amendment 22

Moved by

[Lord Wolfson of Tredegar]

22: Clause 55, page 35, line 30, leave out first “domestic abuse” and insert “accommodation-based”
Member’s explanatory statement
See the explanatory statement to the Minister’s amendment at page 35, line 25.

Amendment 22 agreed.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

We now come to the group consisting of Amendment 23. Anyone wishing to press this amendment to a Division should make this clear in debate.

Amendment 23

Moved by

[Baroness Finlay of Llandaff]

23: Clause 55, page 35, line 30, at end insert “including, where necessary, alcohol and mental health support,”

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, I declare my interest as chair of the Commission on Alcohol Harm. The commission received evidence from many who had first-hand experience of the relationship between alcohol and domestic abuse. As many noble Lords pointed out in Committee, there is a strong, if complex, relationship between alcohol and domestic abuse. The figure often quoted is that up to half of perpetrators have been drinking when an assault takes place. Alcohol also tends to make violence more serious, doubling the risk of severe violence and rape. Tragically, substance use is a factor in over half of intimate-partner homicides.

It is not only perpetrators who drink. Women who have experienced extensive physical and sexual violence are more likely to use alcohol or drugs harmfully than women who have not. They might do so in an attempt to self-medicate and cope with their experiences, or drink with their partner as a form of bonding. Substances may be part of the abuse itself, and perpetrators may use alcohol to control victims. ONS figures show that around 10% of those accessing domestic violence support services have an alcohol use need, many times higher than the rate for the general population. Around 6% have a drug use need and around 40% a mental health problem. Given the difficulties people with additional needs have in accessing domestic violence support, these figures may well underestimate the scale of the problem.

Indeed, survivors may have been forced to choose which of their needs they are able to get help with. Alcohol treatment is desperately underfunded, and there simply are not enough alcohol treatment services set up to help domestic abuse survivors. For example, female survivors of male violence may not feel able to receive treatment in a mixed space; yet less than half of local authorities in England and Wales have provision for women-only substance use services. Women may also find that their drinking can prevent them accessing a safe space, with some turned away from refuges due to drinking or drug use. Only about one-quarter of refuges in London, when asked the question, stated that they “always” or “often” accept women who use alcohol or other drugs.

Following a very constructive and productive meeting with the Minister last week, she has written reassuring me that this is a priority for the Government. She has agreed to address the issue of alcohol and domestic abuse in statutory guidance and in the domestic abuse strategy, which will set out a comprehensive framework for responding to and supporting victims. I welcome the Minister’s recognition of the seriousness of the problem and her attempts to resolve it. In her letter, she also set out the opportunities created by the new integrated care systems to allow for greater joined-up working between services to better support victims with the alcohol treatment they so often need urgently.

This urgency has increased during the Covid-19 pandemic, making it more important than ever for us to act now. During the first lockdown, visits to the UK’s national domestic abuse website surged by 950% by the end of May. NSPCC Wales reported average referrals for parental substance use to police and agencies were 72% higher in the 10 months to February 2021 than in the first three months of 2020. These figures are frightening, but they go only a small way to illustrate to your Lordships the scale of what people are experiencing right now. I am grateful to the Minister for her letter to the noble Lord, Lord Brooke of Alverthorpe, where she recognised the need for much better sobriety schemes, which we greatly appreciate, but I remind the House of the size of the problems.

I shall finish by sharing the words of a 15 year-old boy who contacted Childline. Speaking of his own experience, he said:

“I’m really scared of my dad, especially when he’s been drinking. Sometimes he gets really angry and throws things at my mum. It’s been getting worse since the coronavirus and I worry a lot. I have no idea what to do as I can’t escape because of the lockdown.”


I hope, therefore, that I will get an even warmer reception for this amendment than I received in the letter from the Minister, and I reserve my ability to divide the House on this very important issue pending the response I get. I beg to move.

[Baroness McIntosh of Pickering (Con) [V]]

My Lords, I want to take a moment to support the noble Baroness, Lady Finlay of Llandaff, in her Amendment 23. I pay tribute to all her work in this field and to the other signatories to the amendment. I want to single out the noble Lord, Lord Brooke of Alverthorpe, with whom I had the privilege of serving on the ad hoc committee on the Licensing Act 2003.

Without any shadow of a doubt, as the noble Baroness, Lady Finlay, set out, domestic abuse is, unfortunately, aggravated and fuelled by alcohol and drug abuse. It behoves all of us to try to limit the damage done in these circumstances. I therefore hope that my noble friend the Minister will look favourably on the modest change to the wording of the Bill that is proposed here.

I know that Scotland has taken a lead, particularly on the unit pricing of alcohol. I initially had reservations about that until I heard the evidence we took on the ad hoc committee. It was always understood, and we concluded that we would press them, that the Government would come forward with unit pricing in Scotland. I think my noble friend the Minister would agree that it has led to a significant reduction in alcohol abuse.

With those few words, I lend Amendment 23 my support, and ask my noble friend to look favourably on the modest additional wording it proposes.

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

I should have declared earlier an interest as chairman of the National Commission on Forced Marriage.

I thank the Minister very much for listening and for what she said in response to the debate on an earlier amendment on forced marriage. I agree entirely with what the noble Baroness, Lady Finlay of Llandaff, said. I would just add that mental health issues should include people who are forced into marriage, most of whom are very young and some of whom are under 18.

[Lord Ribeiro (Con) [V]]

My Lords, it is a pleasure to follow the noble and learned Baroness, Lady Butler-Sloss, who supports this amendment. Like the noble Baroness, Lady Finlay, I acknowledge the helpful letter on this amendment that we received today from my noble friend the Minister.

Accommodation-based support, as proposed in government Amendment 22, is highly relevant because domestic abuse can take place in settings other than the home. Alcohol intoxication increases vulnerability because it makes victims less physically able to get away from an aggressor and more likely to make poor decisions. Likewise, alcohol increases the chances of the aggressor assaulting someone in the home or other accommodation-based settings. We know that the more intoxicated someone is, the greater their chance of sustaining serious injuries.

We should also be concerned about the effects of domestic abuse on children—the hidden victims of domestic abuse, as the noble Baroness, Lady Benjamin, noted in the debate on the first group of amendments. Witnessing domestic violence and alcohol abuse are major events in childhood and may lead to an anti-social lifestyle of offending, truancy and violent behaviour in the years ahead.

As a surgeon, I treated many patients with injuries sustained following domestic disputes, nearly all of them fuelled by alcohol. Some were horrific injuries to the chest and abdomen; others were less serious but, none the less, led to long-term complications—particularly injuries to the face from the assailant’s fists or a blunt weapon. The consequences lead to long-term disfigurement, and the sight every day in the mirror of a broken nose or missing teeth is a constant reminder of the abuse suffered. Children, too, may suffer injuries as part of the collateral damage. Many choose not to admit to the assault outside the home.

I am grateful to Professor Jonathan Shepherd, a surgeon and professor at Cardiff University’s Crime and Security Research Institute, for providing me with his publications in the journals of both the Royal College of Surgeons and the Royal College of Psychiatrists and his position statements on the management of alcohol abuse and the mental health impacts of violence. My noble friend the Minister may wish to consider these in the formal consultation after Royal Assent.

In conclusion, where alcohol is concerned, it is important not to view physical injuries in isolation. All too often, the two are inextricably linked. I would welcome the opportunity to share these Royal College policies with my noble friend the Minister, in the hope that they may influence national policy in providing alcohol abuse and mental health support, as this amendment proposes.

16:45

[Baroness Burt of Solihull (LD)]

My Lords, we had an extensive and informed debate on this issue in Committee, so there is no need for me to detain the House by repeating what I said before.

The noble Baroness, Lady Finlay, has confined herself to just one amendment this time, to which I have added my name in support. It encapsulates the importance of the issue and uses the modest vehicle of including alcohol and addiction support in the definition of domestic abuse support when local authorities assess the need and prepare their strategies to meet it.

I hope the Minister will agree that the close and complex relationship between what I called in my remarks in Committee

“the unholy triumvirate of substance abuse, domestic abuse and mental ill-health”—[Official Report, 27/1/21; col. 1621.]

is intrinsic and deserves to be included somewhere in the Bill. However, I fear that that will not be the case today. The Minister has written to the mover of the amendment, the noble Baroness, Lady Finlay, and I am grateful for the copy she sent me. In the letter, the Minister says that the Government will reflect on the importance of this unholy triumvirate in statutory guidance to be issued under Clause 73 of the Bill. I am not convinced that this will be good enough to get the concerted result we need, so if the noble Baroness, Lady Finlay, decides to call a vote, my party and I will support her.

[Baroness Wilcox of Newport (Lab) [V]]

My Lords, it is important to recognise that domestic abuse does not happen in a neat silo. It is inherently bound up with the wider issues of mental health and substance abuse.

We cannot ignore the impact of devastating cuts to our public services through a decade of austerity. The Royal College of Psychiatrists called for the Government to reverse the cuts and enable local authorities to invest at least £374 million in adult services to cope with the increased need. Indeed, report after report highlights the poor preparedness of our public realm to cope with this dreadful pandemic. It is as a consequence of the austerity decade that council funding has been cut to the bone.

Mental health services have been particularly impacted by austerity, leading to a lack of services and long waiting times. Victims and survivors with mental health problems also face barriers in accessing many other vital services due to strict eligibility criteria and not being able to engage in the way that the services require. Such barriers often lead to people being bounced between different services and having to constantly retell their story. There is awareness of the complex and interrelated needs of those with mental ill-health, but many services are unequipped to support them and few services exist that can care for people with both mental health and substance misuse issues.

The noble Baroness, Lady Finlay of Llandaff, spoke expertly and knowledgably about the close link between domestic abuse and alcohol, with a perpetrator drinking heavily. Of course, there are instances where the victim’s drinking leads to uninhibited behaviours that can trigger abuse. Similarly, the victim may use alcohol and drugs to self-medicate. We know that the level of alcohol consumption has increased during the pandemic, thus exacerbating an already known problem.

This should be part of the Government’s work on community services. They have made a commitment to consult on the provision of community services for victims and perpetrators. Will the Minister give a commitment that the consultation will explicitly include the provision of alcohol and substance misuse services? All this work will be effective only if we look at tackling domestic violence in the round.

In conclusion, the importance of multiagency and holistic working in this area cannot be overemphasised. It is important to recognise that mental health and addiction problems can create additional vulnerabilities which people perpetrating abuse may seek to exploit. If the noble Baroness, Lady Finlay, decides to test the opinion of the House, the Opposition Benches will strongly support her.

[Baroness Williams of Trafford (Con)]

My Lords, I thank the noble Baronesses, Lady Finlay and Lady Burt, and the noble Lord, Lord Brooke, for tabling this amendment. I am grateful to have had the opportunity to discuss the issue with them at length. As the noble Baroness, Lady Wilcox of Newport, observed, domestic abuse does not happen in a neat silo. That is a very good way of putting it in the context of this amendment.

In Committee we debated the complex relationship and obvious correlation between domestic abuse, mental health problems and the misuse of drugs and alcohol. Some of us have witnessed the way in which someone who abuses a substance such as alcohol seems to have a switch flicked within their brain and suddenly becomes potentially very aggressive. That is not an excuse for domestic abuse. It is important that both victims and perpetrators have the opportunity to address these issues, and that they get the support they need. To this end, the statutory guidance issued under Clause 73 will reflect the importance of joining up domestic abuse, mental health and substance misuse services.

As I informed the Committee, local authority spending through the public health grant will be maintained in the next financial year. This means that local authorities can continue to invest in prevention and essential front-line health services, including drug and alcohol treatment and recovery services. We want to ensure that people who need support for alcohol and substance misuse issues can access the right services commissioned by local authorities. The Government are working on increasing access, and we have appointed Professor Dame Carol Black to undertake an independent review of drugs to inform the Government’s work on what more can be done.

The overarching aim will be to ensure that vulnerable people with substance misuse problems get the support they need. The review will consider how treatment services can enable people with a drug dependency to achieve and sustain their recovery. These will span a wide range of services with which they might interact across mental health, housing, employment and the criminal justice system. The review is currently focusing on treatment, recovery and prevention. The Government look forward to receiving Dame Carol’s recommendations shortly.

I reassure noble Lords that we intend to reflect the importance of joining up domestic abuse, mental health and substance misuse services. The joint strategic needs assessment produced by local authorities, clinical commissioning groups and other partners should include consideration of the needs of victims and survivors. This assessment informs the commissioning process for the local area. In addition, joint working through local health and well-being boards helps support people who may have co-occurring substance misuse, mental health and domestic abuse issues with more effectively commissioned services in order to improve outcomes and the use of local resources. We want to ensure that, no matter where someone turns, there is no wrong door for individuals with co-occurring conditions, and that compassionate and non-judgmental care centred on the person’s needs is offered and accessible from every access point; for example, people can access via a referral from their GP, or by self-referral. I hope this reassures noble Lords that assessing and meeting the needs of the local population are already integral to the commissioning and provision of healthcare services.

In addition, the Government have announced a total of £25 million in funding for domestic abuse perpetrator programmes. This more than doubles the £10 million funding for such programmes last year. Through them, we funded a number of interventions that sought to address issues such as substance misuse and mental health problems as part of a wider programme of intervention.

I know that the noble Lord, Lord Brooke of Alverthorpe, is pleased that the Bill introduces domestic abuse prevention orders—DAPOs—which enable positive requirements such as attendance at a drug or alcohol programme or a behavioural change programme. The courts will also be able to require the subject of such an order to wear a sobriety tag.

The Government recognise the harm that alcohol can cause and have already committed to rolling out sobriety tags as part of a wider programme to tackle alcohol-fuelled crime. Following two pilots and a successful judicial engagement programme, the alcohol abstinence monitoring requirement was launched in Wales on 21 October last year. This has proved a popular option for sentencers in Wales and we will be rolling out the new requirement in England later in the spring.

We are also committed to our ambitions in the NHS long-term plan for expanding and transforming mental health services in England, and to investing an additional £2.3 billion a year in mental health services by 2023-24. This includes a comprehensive expansion of mental health services, ensuring that an additional 380,000 adults can access psychological therapies by 2023-24.

I would add that the domestic abuse commissioner’s role requires her to adopt a specific focus on the needs of victims from groups with particular needs. She also has the power to make recommendations where she sees gaps in provision. I believe her role will offer independent oversight and the assurance that all issues relating to domestic abuse will be monitored closely.

Finally, it is worth briefly touching on the drafting of the amendment. The noble Baroness, Lady Wilcox of Newport, referred to this. It seeks to add to the definition of domestic abuse support in Clause 55. This relates to a new duty on tier 1 local authorities to provide support to victims of domestic abuse and their children within safe accommodation. As such, the amendment does not touch on the issue of support for perpetrators to help them address problems with alcohol misuse; nor does it deal with the provision of alcohol and mental health community-based support. This is the point that the noble Baroness, Lady Wilcox, was making.

That said, I can assure the noble Baroness that, as part of the new duty in Part 4, tier 1 local authorities will be expected to assess the accommodation- based support needs of all domestic abuse victims and their children. Within the statutory guidance that will accompany Part 4, we describe the support within “relevant” safe accommodation as including support designed specifically for victims with unique and/or complex needs, such as mental health advice and support, and drug and alcohol advice and support.

Again, I thank the noble Baronesses, Lady Finlay and Lady Burt, the noble Lord, Lord Brooke, and other noble Lords for drawing attention to this important issue, and I thank all noble Lords who have raised it during this debate. I hope I have been able to persuade the noble Baroness in relation to the existing provisions and our ongoing ambitions to address the links between substance misuse, mental health and domestic abuse. On that basis, I ask the noble Baroness to withdraw her amendment.

17:00

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, I am grateful to the Minister for the detail she has provided in her full reply. I understand from a previous conversation that the guidance to the Bill will be statutory, as will, therefore, the implementation of the many factors to be included in it that she listed in her response. I am also glad to hear that the review of my long-standing friend and colleague, Professor Dame Carol Black, will report soon. I have always held her in the highest regard and I am sure that her report will be very sound.

I recommend that all noble Lords recall that we need early intervention; otherwise the next generation to experience alcohol abuse will become alcohol abusers themselves. The link is horribly real and certainly well documented, and I appreciate the Minister saying that there will be no wrong door. The £25 million for programmes for perpetrators is welcome, but there is a lot of evidence to show that every £1 invested in local treatment services saves £3 in wider social costs. This is indeed a sound investment by the Government.

In the light of the full response I have received, I will withdraw my amendment. I am grateful to all noble Lords who have spoken for their strong support, both now and behind the scenes, for the amendment and the work being done. I hope that the Minister will take back to the Treasury the need to recognise the financial cost to the nation of alcohol-fuelled domestic violence. Measures such as minimum unit pricing, a differential duty on off-sales to decrease drinking at home—which would support pubs and restaurants—and stopping the promotion of alcohol close to checkouts in supermarkets are all needed to make her strategy to decrease alcohol-fuelled domestic violence as effective as she and I would hope. These issues do not come directly into the Bill, but they are of wider concern. In the meantime, I beg leave to withdraw the amendment.

Amendment 23 withdrawn.

Amendments 24 to 26

Moved by

[Baroness Williams of Trafford]

24: Clause 55, page 36, line 2, at end insert—
“(aa) must keep under review any effect of the strategy on the provision of other local authority support in its area,”Member’s explanatory statement
This amendment would require a relevant local authority that publishes a strategy under Clause 55 to keep under review the effect of that strategy on the provision by the local authority of domestic abuse support to people in the community as opposed to those residing in relevant accommodation.

25: Clause 55, page 36, line 4, at end insert—
“( ) In this section “other local authority support”, in relation to a local authority, means support, in relation to domestic abuse, that—(a) is provided to victims of domestic abuse or their children, and(b) is provided or funded by the local authority,other than accommodation-based support (within the meaning of subsection (2)).”Member’s explanatory statement
This amendment would define “other local authority support” for the purposes of Clause 55.

26: Clause 55, page 36, line 23, at end insert “or any effect of the strategy on the provision of other local authority support in its area”
Member’s explanatory statement
This amendment would provide that regulations under Clause 55(8) can make provision about the frequency with which a relevant local authority must review the effect of its strategy on the provision of other local authority support in its area.

Amendments 24 to 26 agreed.

Clause 56: Domestic abuse local partnership boards

Amendments 27 to 29

Moved by

[Baroness Williams of Trafford]

27: Clause 56, page 36, line 31, after “about” insert “—
(a) ”Member’s explanatory statement
See the explanatory statement accompanying the Minister’s amendment at page 36, line 32.

28: Clause 56, page 36, line 32, at end insert “, and
(b) the provision of other local authority support in the authority’s area.”Member’s explanatory statement
This amendment would provide for a domestic abuse local partnership board to also advise a relevant local authority about the provision of other local authority support in the authority’s area.

29: Clause 56, page 37, line 5, at end insert—
““other local authority support” has the same meaning as in section 55.”Member’s explanatory statement
This amendment would define “other local authority support” for the purposes of Clause 56 (by reference to the definition that would be inserted into Clause 55 by the Minister’s amendment at page 36, line 4).

Amendments 27 to 29 agreed.

Amendments 30 and 31 not moved.

[The Deputy Speaker (Baroness Watkins of Tavistock) (CB)]

We now come to the group beginning with Amendment 32. Anyone wishing to press this or anything else in the group to a Division must make that clear in the debate.

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

Amendment 32

Moved by

[Lord Wolfson of Tredegar]

32: Clause 62, page 39, line 23, after “person” insert “—
(a) is, or is at risk of being, a victim of domestic abuse;(b) ”Member’s explanatory statement
This amendment ensures that rules of court made by virtue of subsection (1) of Clause 62 must make provision which enables the court to make a special measures direction in respect of a party or witness in civil proceedings who is a victim, or is at risk of becoming a victim, of domestic abuse.

[Lord Wolfson of Tredegar (Con)]

My Lords, I apologise for the short intermission while we changed places. The government amendments in this group relate to special measures and the ban on cross-examination in person as they operate in civil proceedings. The Government have taken careful note of the debate in Committee on Clauses 62 and 64, particularly the argument that there should be equivalent protections for the victims of domestic abuse in the civil courts as in family courts. I am personally grateful to the noble Lord, Lord Marks of Henley-on-Thames, for our discussions about these issues. As I explained in Committee, while we want to ensure that there is parity between each of the jurisdictions, we also need to build in allowances for the differences. That is why the provisions in respect of cross-examination and special measures in civil proceedings differ from those in family proceedings.

I shall speak first to Amendment 32 in respect of Clause 62. It is worth noting that the original provision in the Bill was based on recommendations made by the Civil Justice Council in its report published last year entitled Vulnerable Witnesses and Parties within Civil Proceedings. However, having reflected on the representations we have received and the cogent arguments put forward in Committee by the noble Lord, Lord Marks, Amendment 32 would extend eligibility for special measures to those at risk of domestic abuse in addition to the existing provisions which provide eligibility for special measures for the victims of specified offences. We see the force of the argument to include this measure so that there will be an equivalent level of protection for domestic abuse victims across the jurisdictions. The Civil Procedure Rules will lay out how this is to work in practice, but the instruction in the Bill is a clear indication that those victims who have not reported their perpetrator to the police will have an opportunity to let the court know where they are at risk of domestic abuse.

As the existing clause provides, judges will still need to consider whether the quality of a person’s evidence or the person’s participation in proceedings is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more special measures directions. However, we believe that including provision for those at risk of domestic abuse will mean that these victims will be covered and given the ability to avail themselves of special measures.

I shall say a further word on that, which I mentioned in Committee as well. By their nature, civil cases have the potential to cover a much broader range of circumstances where there is no prior connection between the parties; for example, where a victim is suing an alleged perpetrator of sexual abuse, an action against an employer where abuse is alleged, or in a boundary dispute. This amendment is therefore an appropriate step. The breadth of cases in the civil courts means that it may not be appropriate in all cases to grant special measures, although our amendment makes it likely that they will be granted where there is a genuine need.

I turn now to Amendments 33 to 40 to Clause 64. These introduce an automatic ban on cross-examination in person by a litigant in person if the party to proceedings has been convicted or cautioned in relation to a specified offence against a party to the proceedings or where there is a protective injunction between the parties. The witness may also introduce additional evidence to prove that they are a victim of domestic abuse, and this too can give rise to an automatic ban. The evidence would be based on legal aid evidentiary standards and may include a letter from a GP or an employer. This is provided for in family courts through Clause 63. These amendments would therefore move the position in civil courts substantially closer to the provision in family courts on a ban on cross-examination. However, as with the point I made in regard to Clause 62, we have to be mindful of the differences between the two jurisdictions.

The clause, in so far as it relates to banning the cross-examination of vulnerable parties or witnesses, again stems from the report by the Civil Justice Council. The council recommended that the prohibition of cross-examination by a self-represented party should be extended to cover civil proceedings, thereby ensuring some parity with the criminal and family jurisdictions. The council did caution, however, that the ban or prohibition should not be automatic and absolute, bearing in mind the broad range of cases that come before the civil courts.

As I have said previously in our debates on the Bill, we have concerns in relation to the civil jurisdiction that there should be an automatic ban on cross-examination where the position is only that someone is charged with an offence against an individual; that is, where the facts of the case have yet to be proven. In the circumstances where someone is charged with an offence, we believe that it should be left to the discretion of the court to determine whether a ban is appropriate on the facts of a particular case. That is because, as I have said, civil and family jurisdictions are different in type of case they deal with, the civil jurisdiction having a much wider range.

I believe that these amendments will give better protection to victims of domestic abuse and bring closer parity between the civil and family jurisdictions. I beg to move.

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

My Lords, I explained in Committee the reasons for my amendments, which were directed at ensuring that special measures and the prohibition of direct cross-examination should be applied in civil cases on the same or a very similar basis as they are to be in family cases. Our debates highlighted the difficulties, fear and trauma for parties and witnesses in giving evidence and taking part in proceedings where they were victims or at risk of being victims of domestic abuse at the hands of other parties or witnesses. We spoke of the effect of reliving the trauma of abuse in subsequent court proceedings and the fear of the consequences of giving or challenging evidence given by or in the presence of perpetrators.

I argued that in many civil proceedings the risks and effects were the same. I mentioned disputes over property and goods, landlord and tenant disputes, employment disputes, inheritance disputes and business disputes—particularly when partners break up and the separation of their joint business interests gives rise to litigation. It is a truism for litigation lawyers that the disputes giving rise to the most bitterness and unpleasantness are precisely those where the litigants have a close personal connection. However, of course I take the Minister’s point that the range of disputes in civil cases is very much broader than it is in family cases.

The Government have listened to those concerns. I am particularly grateful to the Minister for the time that he and officials in his department made available to consider these issues and for the very useful discussions we had, which have led us to the position that special measures are now to be extended to persons who are or who are at risk of being a victim of domestic abuse, where the original unamended clause required that the person had to be the victim of a specified offence for which the perpetrator would have had to have been convicted, cautioned or charged.

I am delighted that the Government have agreed, no doubt because so many cases of domestic abuse never reach that stage—largely because so much abuse goes unreported or is never the subject of criminal investigation—that victims and those at risk of being victims should be protected in civil proceedings, as they are to be in family proceedings.

Although the amendments on direct cross-examination are complex, as the Minister has explained, they effectively offer broadly equivalent protection to victims of abuse in civil proceedings to that offered in family proceedings, which was the aim of my amendments. In addition to the discretionary protection which the court is to be able to give as a result of new Section 85F of the Courts Act 2003, to be introduced by Clause 64, there is now to be a clear bar on direct cross-examination in cases where the victim is a victim of an offence or protected by an injunction or where there is evidence of domestic abuse against the victim by a party or witness. The nature of the evidence to be required to trigger the mandatory bar will be specified in regulations. It is to be hoped that no undue formality will be required, but I am confident that will be the case.

These amendments achieve what I set out to achieve: to protect witnesses and parties in civil proceedings who have been subject to domestic abuse. I am therefore very pleased to have been able to add my name to the amendments and say—it is not the first time it has been said today—that this process has shown the House at its best. It has been a model of co-operation between some of us on the Opposition Benches and the Government of the day.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I thank the noble Lord, Lord Marks of Henley-on-Thames, for pursuing this issue. It is not something I had focused on. The concessions he has got from the Government are welcome. There will be a ban on cross-examination in family courts and a broadly equivalent set of rules in the civil courts, although, as far as I understand it, there will still be some judicial discretion on these matters because of the wider nature of the types of cases heard in the civil courts. As the noble Lord just said, while the nature of the cases may be wider, the risks may be the same, particularly if the parties are personally connected in any way. I welcome these government amendments and congratulate the noble Lord on pursuing this matter.

17:15

I conclude by drawing on something completely different: the advent of remote working, which I am actively involved with in both criminal and, more importantly, family proceedings. We are developing different ways of remote working in real time. For example, in videoconferences, should a party be able to ask that their face not be available to be seen by all parties taking part in the case? These are difficult matters which we are dealing with day to day; at the moment there is no guidance as such, other than consulting with colleagues and senior judges. These are very live matters which may be on the horizon to be further regulated in future. However, for now, I am glad to accept these government amendments.

[Lord Wolfson of Tredegar (Con)]

My Lords, I hope the House will forgive me if I am brief, because I am conscious there is a lot of business still to get through. I thank the noble Lord, Lord Marks of Henley-on-Thames—my co-sponsor of these amendments—for his kind words and engagement. As he said, we have reached the position where there are broadly equivalent provisions in place across the jurisdictions.

I am also grateful for the support of the noble Lord, Lord Ponsonby of Shulbrede. The point he raised about remote working and the courts having to work in real time in dealing with the pandemic and its effects is very important. To say any more at this stage would take me both outside the confines of this Bill and well off my brief. However, I have no doubt we will discuss it in this and other contexts in future.

Amendment 32 agreed.

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

Amendments 33 to 40

Moved by

[Lord Wolfson of Tredegar]

33: Clause 64, page 47, line 21, at end insert—
“85EA Prohibition of cross-examination in person: victims of offences(1) In civil proceedings, no party to the proceedings who has been convicted of, or given a caution for, a specified offence may cross-examine in person a witness who is the victim of that offence.(2) In civil proceedings, no party to the proceedings who is the victim of a specified offence may cross-examine in person a witness who has been convicted of, or given a caution for, that offence.(3) Subsections (1) and (2) do not apply to a conviction or caution that is spent for the purposes of the Rehabilitation of Offenders Act 1974, unless evidence in relation to the conviction or caution is admissible in, or may be required in, the proceedings by virtue of section 7(2), (3) or (4) of that Act.(4) Cross-examination in breach of subsection (1) or (2) does not affect the validity of a decision of the court in the proceedings if the court was not aware of the conviction or caution when the cross-examination took place.(5) In this section—“caution” means—(a) in the case of England and Wales—(i) a conditional caution given under section 22 of the Criminal Justice Act 2003,(ii) a youth conditional caution given under section 66A of the Crime and Disorder Act 1998, or (iii) any other caution given to a person in England and Wales in respect of an offence which, at the time the caution is given, the person has admitted;(b) in the case of Scotland, anything corresponding to a caution falling within paragraph (a) (however described) which is given to a person in respect of an offence under the law of Scotland;(c) in the case of Northern Ireland—(i) a conditional caution given under section 71 of the Justice Act (Northern Ireland) 2011, or(ii) any other caution given to a person in Northern Ireland in respect of an offence which, at the time the caution is given, the person has admitted;“conviction” means—(a) a conviction by or before a court in England and Wales, Scotland or Northern Ireland;(b) a conviction in service disciplinary proceedings (in England and Wales, Scotland, Northern Ireland, or elsewhere), including—(i) in the case of proceedings in respect of a service offence, anything that under section 376(1) and (2) of the Armed Forces Act 2006 (which relates to summary hearings and the Summary Appeal Court) is to be treated as a conviction for the purposes of that Act, and(ii) in the case of any other service disciplinary proceedings, a finding of guilt in those proceedings;(c) a finding in any criminal proceedings (including a finding linked with a finding of insanity) that the person concerned has committed an offence or done the act or made the omission charged;and “convicted” is to be read accordingly;“service disciplinary proceedings” means—(a) any proceedings (whether or not before a court) in respect of a service offence (except proceedings before a civilian court within the meaning of the Armed Forces Act 2006);(b) any proceedings under the Army Act 1955, the Air Force Act 1955, or the Naval Discipline Act 1957 (whether before a court-martial or before any other court or person authorised under any of those Acts to award a punishment in respect of an offence);(c) any proceedings before a Standing Civilian Court established under the Armed Forces Act 1976;“service offence” means—(a) a service offence within the meaning of the Armed Forces Act 2006, or(b) an SDA offence within the meaning of the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059);“specified offence” means an offence which is specified, or of a description specified, in regulations made by the Lord Chancellor.(6) The following provisions (which deem a conviction of a person discharged not to be a conviction) do not apply for the purposes of this section to a conviction of a person for an offence in respect of which an order has been made discharging the person absolutely or conditionally—(a) section 14 of the Powers of Criminal Courts (Sentencing) Act 2000;(b) section 82 of the Sentencing Code;(c) section 187 of the Armed Forces Act 2006 or any corresponding earlier enactment.(7) For the purposes of this section “offence” includes an offence under a law that is no longer in force.85EB Prohibition of cross-examination in person: persons protected by injunctions etc (1) In civil proceedings, no party to the proceedings against whom an on-notice protective injunction is in force may cross-examine in person a witness who is protected by the injunction.(2) In civil proceedings, no party to the proceedings who is protected by an on-notice protective injunction may cross-examine in person a witness against whom the injunction is in force.(3) Cross-examination in breach of subsection (1) or (2) does not affect the validity of a decision of the court in the proceedings if the court was not aware of the protective injunction when the cross-examination took place.(4) In this section “protective injunction” means an order, injunction or interdict specified, or of a description specified, in regulations made by the Lord Chancellor.(5) For the purposes of this section, a protective injunction is an “on-notice” protective injunction if—(a) the court is satisfied that there has been a hearing at which the person against whom the protective injunction is in force asked, or could have asked, for the injunction to be set aside or varied, or(b) the protective injunction was made at a hearing of which the court is satisfied that both the person who applied for it and the person against whom it is in force had notice.85EC Prohibition of cross-examination in person: evidence of domestic abuse(1) In civil proceedings, where specified evidence is adduced that a person who is a witness has been the victim of domestic abuse carried out by a party to the proceedings, that party to the proceedings may not cross-examine the witness in person.(2) In civil proceedings, where specified evidence is adduced that a person who is a party to the proceedings has been the victim of domestic abuse carried out by a witness, that party may not cross-examine the witness in person.(3) In this section—“domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2021;“specified evidence” means evidence specified, or of a description specified, in regulations made by the Lord Chancellor.(4) Regulations under subsection (3) may provide that any evidence which satisfies the court that domestic abuse, or domestic abuse of a specified description, has occurred is specified evidence for the purposes of this section.”Member’s explanatory statement
This amendment provides for an automatic prohibition in civil proceedings on the cross-examination of witnesses in person in certain cases, similar to the provisions in Clause 63. For example, it prohibits a party who has been convicted of a specified offence from cross-examining in person a witness who is the victim of that offence. “Specified” here means specified in regulations made by the Lord Chancellor.

34: Clause 64, page 47, line 25, after “if” insert “—
(a) none of sections 85EA to 85EC operates to prevent the party from cross-examining the witness, and(b) ”Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 47, line 21.

35: Clause 64, page 48, line 9, at end insert—
“(ca) any charge of which the court is aware in respect of a specified offence alleged to have been committed by the party in relation to the witness; (cb) any charge of which the court is aware in respect of a specified offence alleged to have been committed by the witness in relation to the party;”Member’s explanatory statement
This amendment, and the Minister’s amendment at page 48, line 25, provide that, in deciding whether to make a direction under new section 85F of the Courts Act 2003 prohibiting a party from cross-examining a witness in person, the court must have regard to the fact that the party has been charged with a specified offence alleged to have been committed in relation to the witness (or vice versa).

36: Clause 64, page 48, leave out lines 10 to 13
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 47, line 21.

37: Clause 64, page 48, line 25, at end insert—
“( ) In subsection (5)(ca) and (cb) “specified offence” means an offence that is a specified offence for the purposes of section 85EA.”Member’s explanatory statement
See the explanatory statement for the Minister’s amendment at page 48, line 9.

38: Clause 64, page 49, line 7, leave out “a direction under section” and insert “any of sections 85EA to”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 47, line 21.

39: Clause 64, page 50, leave out lines 16 and 17
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 50, line 30.

40: Clause 64, page 50, line 30, at end insert—
“85K Regulations under Part 7ARegulations under this Part may make different provision for different purposes.””Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 47, line 21.

Amendments 33 to 40 agreed.

[The Deputy Speaker (Baroness Watkins of Tavistock) (CB)]

We now come to the group beginning with Amendment 41. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Amendment 41

Moved by

[Lord Wolfson of Tredegar]

41: After Clause 64, insert the following new Clause—
“Orders under section 91(14) of the Children Act 1989Orders under section 91(14) of the Children Act 1989
(1) The Children Act 1989 is amended as follows.(2) In section 91 (effect and duration of orders etc.), at the end of subsection (14) insert—“For further provision about orders under this subsection, see section 91A (section 91(14) orders: further provision).”(3) After section 91 insert—“91A Section 91(14) orders: further provision(1) This section makes further provision about orders under section 91(14) (referred to in this section as “section 91(14) orders”).(2) The circumstances in which the court may make a section 91(14) order include, among others, where the court is satisfied that the making of an application for an order under this Act of a specified kind by any person who is to be named in the section 91(14) order would put—(a) the child concerned, or(b) another individual (“the relevant individual”),at risk of harm.(3) In the case of a child or other individual who has reached the age of eighteen, the reference in subsection (2) to “harm” is to be read as a reference to ill-treatment or the impairment of physical or mental health.(4) Where a person who is named in a section 91(14) order applies for leave to make an application of a specified kind, the court must, in determining whether to grant leave, consider whether there has been a material change of circumstances since the order was made.(5) A section 91(14) order may be made by the court—(a) on an application made—(i) by the relevant individual;(ii) by or on behalf of the child concerned;(iii) by any other person who is a party to the application being disposed of by the court;(b) of its own motion.(6) In this section, “the child concerned” means the child referred to in section 91(14).””Member’s explanatory statement
This amendment inserts a new section 91A into the Children Act 1989 which makes further provision about the circumstances in which the court may make an order under section 91(14) of that Act (also known as a barring order), including where the court is satisfied that the making of a further application for an order under that Act, by any person to be named in the order, would put the child concerned, or another individual, at risk of harm.

[Lord Wolfson of Tredegar (Con)]

My Lords, Amendments 41 and 104 relate to Section 91(14) of the Children Act 1989. Last year we committed to exploring whether an amendment to the Bill was needed to clarify that Section. As noble Lords will be aware, it deals with barring orders, as they are often called, which allow courts to bar individuals from making further applications without permission of the court. Importantly, therefore, the order does not prevent access to the court; it prevents making an application without first obtaining the permission of the court to do so.

In Committee, the noble Lord, Lord Rosser, and my noble friend Lady Newlove asked for an update on the progress of the work. On responding to an amendment on barring orders put forward by the noble Lord, Lord Ponsonby of Shulbrede, I said that I would consider the issue of Section 91(14) carefully ahead of this next stage. I can assure noble Lords that I have done precisely that.

The sad fact is that perpetrators sometimes use the family court as a way to continue their abuse, often bringing their victims back to court repeatedly, which can in itself be a traumatising process. It is an abuse of the victims and also, therefore, an inappropriate use of the court process.

As it is currently formulated, Section 91(14) of the Children Act 1989 does not include any detail as to the circumstances in which such barring orders should be used. Courts have therefore elaborated the principles for when such barring orders may, and should, be made. Last year we heard compelling evidence from the expert panel in its report Assessing Risk of Harm to Children and Parents in Private Law Children Cases that, while they can be an effective measure, Section 91(14) barring orders are not being used sufficiently to prevent perpetrators continuing their abuse through the use of court applications under the Children Act 1989.

Before I go further, I want to pay respectful tribute to the noble and learned Baroness, Lady Butler-Sloss, who delivered the seminal re P judgment in this area of law back in 1999. For over two decades the guidelines included in that leading judgment have been regarded as the main reference point for judges when they are making the often difficult decision on the use of Section 91(14). It is fair to acknowledge that it is clear from those guidelines that specific cases and types of harm, including harm from domestic abuse, are not excluded from consideration for a barring order. None the less, now is the right time for us to act on the evidence presented by the harm panel about how Section 91(14) is being understood and applied, particularly in domestic abuse circumstances.

As is evident from the many debates we have had on the Bill, we now know far more about the prevalence of domestic abuse and the different forms that it can take than we did in 1999. It is therefore right that as the Bill approaches the end of its parliamentary journey, we use the opportunity to clarify the ambit and application of Section 91(14) to ensure that we are providing greater protection to victims, survivors and their children.

The Government are clear that barring orders are available to protect parents and children where further proceedings would risk causing them harm, and particularly where proceedings could be a form of continuing domestic abuse. To that end, Amendment 41 introduces a new provision into the Children Act 1989: new Section 91A. The new section clarifies that the circumstances in which a court may make a barring order include where the court is satisfied that a further application made by the named person would put the child or another individual—for example, the parent victim—at risk of harm. It is a non-exhaustive example; the discretion is preserved, but an additional statutory indication is provided. As I have mentioned, this amendment responds to recommendations made by the harm panel.

The aim of Amendment 41 is therefore to make it clearer to courts and practitioners that Section 91(14) barring orders are indeed available where a further application would pose a risk of harm to a child or a parent victim, and in particular where that application could constitute further domestic abuse. In that context, I should highlight to noble Lords that while this amendment does not expressly mention domestic abuse, it refers to the concept of “harm” that is already found in the Children Act 1989. This is because the definition in Section 31(9) of the Children Act is already very broad. It already includes coercive control and other forms of domestic abuse, along with many other forms of harm.

We touched on that point in the government response to the Joint Committee’s recommendation to amend the definition of harm. As we said there, we believe that singling out a specific form of harm in any part of the 1989 Act could have unintended negative consequences and risk appearing to give greater weight to one form of harm than another. We do not want to create a hierarchy of harm. We have therefore opted for the wider concept of harm, consistent with the approach in the Children Act.

We have also responded to the harm panel’s report in a further way. The new Section 91A makes it clear that in determining whether to grant permission to make an application to a person who is subject to a barring order under Section 91(14), the court must consider whether there has been a material change of circumstances since the barring order was made. Our intention is to require that courts consider carefully whether the circumstances that gave rise to the barring order have materially changed, such that permission to apply should be granted. The amendment does not draw a red line such that permission can be granted only if there has been a material change of circumstances, but we believe that the inclusion of this provision, which requires the court to consider this question, will offer further protection to domestic abuse victims.

The amendment also makes it clear that courts can make these orders on their own initiative—of their own motion, as it used to be said—for example, without an application being made by the victim for an order to be made. This, too, is a response to the harm panel’s recommendations. We want to put beyond doubt that there need not be an application for a barring order in order for the court to consider making one. Of course, the court will still need to give due consideration to the making of such an order, but the amendment clarifies that the court can make an order on its own initiative.

The Government are therefore confident that the amendment will mean that barring orders are used more often by courts to protect victims of domestic abuse where further applications put them at risk of harm. It will also make sure that permission to apply will be granted only where the court has considered whether there has been a material change of circumstances since the order was made, and also clarify that courts can make these orders on their own initiative. For those reasons, I beg to move.

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

My Lords, we support this government amendment and the amendment of the Title of the Bill that goes with it. As the Minister has explained, Section 91 of the Children Act permits the court to make a barring order—that is, an order forbidding someone, usually an applicant who has failed to persuade a court to make an order in his or her favour, from making an application for an order of a particular kind; this is usually but not always a repeat application—with respect to a child, importantly, without the leave of the court.

An order under this section still permits a further application for an order to be made if the court decides to permit it, which the court may in its discretion decide to do. This amendment, as the Minister has explained, extends the discretion to make a barring order if a further application would put the child concerned, or another individual, at risk of harm. That is the real purpose and merit of this amendment: it is for the protection from repeated litigation of those who might be victims of domestic abuse, when that repeated litigation often amounts to a particularly unpleasant form of harassment by legal proceedings.

The jurisdiction is similar to the court’s jurisdiction to make civil restraint orders and civil proceedings orders against vexatious and unmeritorious repeat litigants in civil cases. Under this government amendment, a person subject to a barring order may of course seek permission to apply further to the court. That application for permission will be considered, but the court considering whether permission should be given to make a fresh application must consider whether there has been a change of circumstances since the making of the original order. That, I suggest, seems entirely sensible. The amendment therefore strikes a careful and judicious balance between protecting potential applicants and providing a safeguard against people being harassed by unmeritorious repeat litigation.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I thank the Minister for introducing these amendments, which we support. As he explained, they put in additional strengthening factors for barring orders; of course, there are barring orders in place in the family courts in any event. The purpose, as he explained, is to make it crystal clear, and to set out clearly, what the court must consider where there is any risk for the children or the other parties through repeated litigation. However, there is discretion for the court, if there is a material change in circumstances, to decide to accept and hear the case. So I accept the amendment as presented.

17:30

One case that I dealt with comes to mind. It had come to court 24 times in six years. The child was six years old, which means that every three months that child’s issues had come to court, as a child arrangements order. There were no allegations of domestic abuse. It was a youngish couple who were using the court system to resolve matters that seemed trivial. At what we hoped would be the final time we were dealing with this case, we came up with six pages of guidance for the child arrangements, with a lot of detail. At the recommendation of the legal adviser, we put in place a barring order to get those parents to sort out those problems themselves. As I say, there was no allegation of domestic abuse in that case, so it is slightly different from that which the noble Lord has put forward today. Nevertheless, it was certainly appropriate for a barring order. I support the amendment as moved by the Government.

[Lord Wolfson of Tredegar (Con)]

My Lords, again, I hope that the House and the noble Lords, Lord Marks of Henley-on-Thames and Lord Ponsonby of Shulbrede, will forgive me for being brief. I am conscious of the amount of the work that we have to get through. I am grateful for their comments and support for the purpose and effect of these amendments. As the noble Lord, Lord Marks, put it, we are striking a careful and judicious balance here between access to courts and preventing the court process being used as a vehicle for abuse. As we were reminded by the noble Lord, Lord Ponsonby of Shulbrede, it is not only in cases of domestic abuse that Section 91(14) is available, although that is the purpose of the amendments before the House.

Again, with apologies for being brief, because there appears to be broad agreement, I beg to move Amendment 41.

Amendment 41 agreed.

[The Deputy Speaker (Baroness Watkins of Tavistock) (CB)]

We now come to Amendment 42. Anyone wishing to press this amendment to a Division must make that clear in debate.

Amendment 42

Moved by

[Baroness Jones of Moulsecoomb]

42: After Clause 64, insert the following new Clause—
“Proceedings under the Children Act 1989
(1) Part I of the Children Act 1989 is amended as follows.(2) In section 1 (welfare of the child) after subsection (2B) insert—“(2C) Subsection (2A) shall not apply in relation to a parent where there has been domestic abuse which has affected the child or other parent.(2D) Evidence of domestic abuse may be provided in one or more of the forms accepted as evidence for legal aid, as per guidance issued by the Ministry of Justice.”(3) Part II of the Children Act 1989 is amended as follows.(4) In section 9 (restrictions on making section 8 orders) after subsection (7) insert—“(8) No court shall make a section 8 order for a child to spend unsupervised time with or have unsupervised contact with a parent who is—(a) awaiting trial, or on bail for, a domestic abuse offence;(b) involved in ongoing criminal proceedings for a domestic abuse offence;(c) is pending a fact finding hearing or has been found to have committed domestic abuse in a previous fact-finding hearing; or(d) has a criminal conviction for a domestic abuse offence.(8A) In subsection (8)—“unsupervised” means where a court approved third party is not present at all times during contact with the parent to ensure the physical safety and emotional wellbeing of a child;“domestic abuse offence” means an offence which the Crown Prosecution Service alleges to have involved domestic abuse.””Member’s explanatory statement
This amendment seeks to prevent domestic abusers from being granted unsupervised contact with children in family law proceedings.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I had to bring this amendment back on Report, because I did not think that the Minister accepted the issues in Committee. They are important: domestic abusers are being granted unsupervised contact with children as a result of an ingrained pro-contact culture. The Ministry of Justice’s own harm review concluded that “the dominance of contact” is seen

“as excluding other welfare considerations, including the child’s need for protection from abuse, or the child’s wishes and feelings.”

Rather than seeing contact as a means to an end and weighing it up against all the harm and damage that an abusive parent has caused, it is seen as the end in itself, almost no matter what the cost. That is deeply harmful.

The debate on parental alienation on Monday showed just how embedded some of these ideas have become. Wanting to exclude an abusive parent can itself be labelled as abusive. Abusive men, in particular, falsely claim that abuse is mutual and reciprocal, and try to label the victim as a fellow perpetrator. As the Minister said on a previous group, an abuser will pursue their victim through the family courts to try to force contact with their child, not because they care, but because it is an extension of their coercive and controlling behaviour and their fury that their victim has managed to escape them. So, the abuse continues through the courts and then into unsupervised contact. More than a dozen children have been murdered by their fathers during unsupervised contact. Can the Minister please tell me what the Government are going to do to stop it?

[Baroness Fox of Buckley (Non-Afl)]

In my short time in this House, I have been hugely impressed by the fairness, clarity and reasonableness of the noble Baroness, Lady Jones of Moulsecoomb—that might be bad for her reputation—even when we have not agreed. However, in this instance, I am sad to say that I cannot find anything reasonable in this amendment, but it raises some broader issues about the Bill that worry me, so I will make those points.

This amendment effectively argues for denying the right to be a parent to anyone accused of the offence of abuse. In listing those who will be denied unsupervised access to their own children, we have those “awaiting trial”, “on bail” or

“involved in ongoing criminal proceedings”,

all of which—as anyone who knows anything about the criminal justice system knows—can involve months or years of one’s life. That would mean that innocent people, accused, are already treated as guilty.

Of course, we all want to protect children from any risk and, as the noble Baroness has illustrated, those horrifying stories of children being hurt or even killed, sometimes as revenge, are at the forefront of our minds, but I have two points. The amendment refers to ensuring the

“physical safety and emotional wellbeing of a child”.

Those are two distinct threats. The latter, at least, is difficult to pin down. I argue that being deprived of time with one’s parent, free from a court-approved third party, could also be the cause of considerable emotional distress for any child. It could be a recipe for the parental alienation that she mentioned.

Secondly, even the prospect or fear of a threat to physical safety cannot distort our sense of justice or lead to disproportionate or punitive measures in a risk-averse “what if?” scenario. It could too easily lead to the state unjustly alienating children from a parent who is accused but not found guilty. Surely, evidence and facts are key to establishing the level of threat. I note that the amendment would deny unsupervised contact

“pending a fact finding hearing”,

which makes a mockery of establishing facts and tears up any commitment to factual evidence as an important part of judging whether an accused parent can be trusted to care for or parent their children without third-party supervision.

I am even worried that this amendment argues that unsupervised contact would not be allowed for anyone with a “criminal conviction” for abuse. Granted, in this instance the evidence has been weighed and facts established, but consider the implications of this. This amendment would mean that someone found guilty of abuse perhaps when as young as 18 could find themselves, at the age of 38—by now, we hope, a reformed character in a different set of circumstances, maybe no longer drinking, on drugs or mentally ill, as we have heard today, or just shame-faced about their younger self’s abusive behaviour—still denied unsupervised access to their children. To be honest, that seems ungenerous, even barbaric and vengeful. It suggests that we are branding people found guilty as perpetrators with the letter “A” for abuser, for ever.

We also heard earlier that one can gain a criminal conviction for abuse by breaching a domestic abuse order. That breach might be for a relatively minor offence. I worry that aspects of this amendment encourage a lack of perspective and a disavowal from making judgments of different threats. The Government continue to stress that they do not want a hierarchy of abuse or harm—we have just heard the Minister discuss that—but this can lead to a muddle when it comes to parental contact. I want to discourage a lazy, one-size-fits-all approach. When considering risks to children, there is a distinction between, for example, the perpetrator of regular, systematic violence or coercive control and the particular emotional or psychological abuse that one partner might inflict on another in a toxic relationship. The latter may be worse than horrible if you are at the receiving end of it, but it may never be aimed at or even witnessed by children.

To conclude, I urge the Government to maintain the presumption of parental contact. It should be curtailed or removed only with great care. That does not mean putting children at risk, but it means holding justice dear.

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

My Lords, I entirely agree with the noble Baroness, Lady Fox. I recognise the good intentions of the amendment, but I am concerned that it is too rigid. As I know from my judicial experience, not all situations are black and white. As I said at some length on a previous occasion on Report, judges and magistrates will get specific training on the Domestic Abuse Act, but the effect of this amendment would deny them important judicial discretion.

I am particularly concerned about that because proposed subsection (2D) in the amendment says:

“Evidence of domestic abuse may be provided in one or more of the forms accepted as evidence for legal aid, as per guidance issued by the Ministry of Justice.”


As the noble Baroness, Lady Fox, pointed out, that means that a decision is taken that generally a father, but sometimes a mother, would be forbidden unsupervised contact based on the information provided by one party and before the fact-finding decision had been made by the judge. Although I understand why the amendment has been put forward, I am not prepared to support it.

[Baroness Uddin (Non-Afl) [V]]

My Lords, the presumption of contact cannot be the first indicated assurance by the family court process. As a front-line social worker supporting supervised contact, my experience was that there is an underlying assumption of statutory services that all parents are entitled to access to children, regardless of any fears that the primary carer or parent may have about violence or abuse. Of course, there are exceptional social workers and other professionals who will pay heed to the whole range of issues of safeguarding, particularly where there is a previous history of violence and abuse.

I commend here the long-standing and excellent work of Barnardo’s and the Thomas Coram Foundation contact centre. In my experience, they have always taken these grave matters into consideration, but their services are for the lucky few. This is why I support the amendment in the name of the noble Baroness, Lady Jones. As has been detailed, the harm review found a pattern of sexism, racism and class bias against mothers and children in the family court and confirmed the presumption of contact, which has resulted in the minimisation and disbelief of allegations of domestic abuse and child sexual abuse.

The presumption is often based on one parent lying to deprive the other of access to children and somehow persuading their children to turn against the other parent. Such legal presumption often disadvantages women, including those from minority heritage backgrounds and those for whom our legal system is frequently alienating due to a lack of adequate English or knowledge about their rights.

Even in these most serious cases against mothers and children, the presumption of contact has triumphed, dismissing evidence of domestic abuse and negating mothers’ fears of extensive coercive and controlling behaviour or sexual abuse. Some women who have written to me suggest that fathers have been able to recognise the argument of being alienated to argue their entitlement to access, even where there has been evidence of violence or sexual abuse.

As has been suggested by noble and learned Lords and other noble Lords, the court system does not always function as it should. It is not beyond the wit of our courts to make a proper assessment of the impact on children when they have witnessed countless occasions of violent incidents experienced by their mother or why children would be afraid to see their violent father in any unsupervised contact.

Children who do not want to see their fathers are sometimes forced into foster care, separated from siblings, or given to other family members, to force them into contact. The London Victims’ Commissioner has called this “state-sanctioned abuse”. I am not saying that; someone who has a wide range of experience is saying it. We have to respect that view and take it on board.

17:45

The figures speak for themselves. Women’s Aid research demonstrates that safeguarding concerns resulting from domestic abuse are still not believed or understood within the child contact system, leading to potentially unsafe contact decisions which, in the most extreme cases, have resulted in children being seriously harmed and murdered. This was highlighted in the Women’s Aid report, which referred to the horrific murder of Claire Throssell’s two sons. This case illustrates the danger of unsupervised contact. We risk further tragedies unless this is addressed now.

As has already been referred to, last year the Ministry of Justice published the final report of its expert panel—Women’s Aid was part of it—on assessing the risk of harm to children and parents in family law children’s cases. It concluded that family courts do not effectively protect many child and adult victims of domestic abuse from further harm. It called for fundamental reform of the child arrangements programme, arguing that the system should be redesigned with a focus on trauma and an assurance to work collectively across all other justice agencies. The presumption should be ended in cases where children are at risk of harm from domestic abuse, with contact arrangements for domestic abuse cases based on an informed judgment of the child’s best interests and safety. The Ministry of Justice panel concluded in June 2020 that the presumption should be urgently reviewed.

I have been overwhelmed with emails and messages from women who have experienced hopelessness with our legal system. No doubt we can deluge this Chamber with countless cases—I am sure that many noble Lords have been contacted and reached out to. All involve years of long-lasting and damaging court cases where children are forced into contact deemed unsafe. Mothers have experienced pressure to prove that their fear was real but that has been denied, so inflicting further injury to the mother and children. One survivor, speaking on behalf of many named survivors, said to me, “I am crying out for help and hope”. This amendment is one small aspect of our response to safeguard them and their children. I speak to give their voices in the Chamber today.

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

My Lords, I expressed my concern in Committee at the proposal to abandon the presumption in subsection (2A) of the Children Act 1989 where there has been domestic abuse that has affected the child or the other parent. My concern was then, as it is now, that under the Children Act the welfare of the child must be the court’s paramount consideration.

The presumption requires courts, when making orders about arrangements for children, including their living arrangements and arrangements for contacts, to ensure that

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

That presumption is supported by a great deal of evidence that for children to maintain a relationship with both their parents following a breakdown of the parents’ relationship is generally in their best interests. The presumption has stood the test of time. It serves to remind custodial and non-custodial parents in entirely non-abusive relationships that have nevertheless broken down that their responsibility is to try to help their children to maintain relationships with the other, non-residential parent.

But the presumption is rebuttable, hence the words

“unless the contrary is shown”.

In many cases involving domestic abuse, judges will not order contact, because the best interests of the child will not be met by their making an order for contact. That covers the cases that I suspect the noble Baronesses, Lady Uddin and Lady Jones of Moulsecoomb, are worried about.

However, as I attempted to demonstrate in Committee, there may be cases where acts of abuse should not lead to the conclusion that contact should be cut. In some cases, the child will have not witnessed, known about or been put at risk by an act of abuse, which may have been a completely isolated act, committed against its parent. I am reluctant to disagree with the noble Baroness, Lady Jones of Moulsecoomb, because I so rarely do, but I do on this occasion. I understand her concern and that of the noble Baroness, Lady Uddin, to ensure that children are protected from the harm of unsuitable and often dangerous contacts, but to provide that protection is the job of judges. It is not the task of Parliament to make absolutist rules that treat all cases where allegations of abuse are made in the same way. Judicial discretion in these cases should be left as it is, exactly for the reasons advanced by the noble and learned Baroness, Lady Butler-Sloss.

I also do not accept that the proposed new subsection (4) should pass into law. It would provide that no court should make an order for unsupervised contact with a parent who is, broadly, facing proceedings for a domestic abuse offence, is involved in a fact-finding hearing for a domestic abuse offence or who has a criminal conviction for such an offence. There are two points that are conclusive against such a clause. First, in the circumstances of paragraphs (a) to (c) in the proposed new subsection (8) of Section 9 of the Children Act, there would have been no finding of guilt of domestic abuse. The presumption of innocence has to apply, a point well made by the noble Baroness, Lady Fox of Buckley. A judge hearing a contact application should not be barred by a statutory prohibition from making a finding of fact and an order after hearing evidence if they take the view that the welfare of the child would be best served by making such an order for contact, just because there is a statutory prohibition that operates without a finding of fact.

Secondly, this suggested prohibition would not be limited to cases where the alleged offending party is said to have been involved in domestic abuse against either the child or its other parent, so it would forbid a contact order between the prohibited parent and a child from an entirely different relationship. A court would be forbidden from making an order for contact with a child from a father’s relationship with a former partner, with whom a good relationship had been maintained by him and by the child, because of an allegation of domestic abuse lodged by a subsequent partner. Such an absolute prohibition would be wrong, and I cannot support it.

[Lord Rosser (Lab) [V]]

My Lords, the proposed new clause in this amendment moved by the noble Baroness, Lady Jones of Moulsecoomb, would disapply the presumption that parental involvement furthers a child’s welfare in cases where there has been domestic abuse. It would also prohibit unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences where there are ongoing criminal proceedings for domestic abuse or where the parent has a criminal offence for domestic abuse. I moved a similar amendment in Committee which did not receive the backing of a number of speakers in the debate or of the Minister.

In his response in Committee, the Minister said:

“I have a great deal of sympathy for the aims of these amendments, and I agree that more needs to be done to ensure that the courts take proper account of the impact that domestic abuse can have on children’s well-being and safety.”


He went on to say that

“following the recommendations from the Expert Panel on Harm in the Family Courts, the Government launched a review on the presumption of parental involvement”

which

“will focus on the presumption … and the impact on children’s welfare of the courts’ application of these provisions.”

He argued that it would

“be premature to amend the legislation relating to the presumption … before gaining the in-depth evidence from the review.”—[Official Report, 3/2/21; col. 2222.]

However, we should not forget that Women’s Aid’s Nineteen Child Homicides documents the cases of 19 children in 12 families who were killed in circumstances relating to child contact by a father who was the perpetrator of domestic abuse. The Expert Panel on Harm in the Family Courts said that it had

“received sufficient evidence to conclude that in the cohort of cases described in submissions the presumption further reinforces the procontact culture and detracts from the court’s focus on the child’s individual welfare and safety.”

The report also states:

“The panel is clear, however, that the presumption should not remain in its present form.”


There is thus some clear and, indeed, tragic evidence that the present arrangements relating to the presumption of parental involvement as opposed to solely what is in the best interests of the child, including its welfare and safety, are just not delivering the protections they should. However, in the light of the concerns expressed by some noble Lords in Committee, which have been repeated today, and the current review of the presumption of parental involvement, we did not put down the amendment for Report. Instead, we will continue to pursue this issue outside the discussions and debates on the Bill.

[Lord Wolfson of Tredegar (Con)]

My Lords, as the noble Baroness, Lady Jones of Moulsecoomb, has explained, Amendment 42 seeks to disapply the presumption found in the Children Act—that parental involvement furthers the child’s welfare—when there has been domestic abuse that has affected the child or the other parent.

The amendment also seeks to prohibit unsupervised contact by a parent in a number of different circumstances: when they are on bail awaiting trial; when there are ongoing criminal proceedings for a domestic abuse offence; when a fact-finding hearing concerning domestic abuse allegations is pending; and when domestic abuse is proven in such a fact-finding hearing or as a result of a criminal conviction for a domestic abuse offence.

In Committee, many noble Lords spoke passionately about the presumption of parental involvement and gave a number of examples of unsupervised contact leading to tragic results in cases which involved domestic abuse. The noble Lord, Lord Rosser, reminded us of some of them this evening. As I said in Committee, I have significant sympathy for the aims of this amendment and agree that more needs to be done to ensure that the courts are taking proper account of the impact domestic abuse can have on children’s well-being and safety. That is why this Government, in November 2020, following the recommendations from the Expert Panel on Harm in the Family Courts, launched a review of the presumption of parental involvement. The noble Lord, Lord Rosser, and the noble Baroness, Lady Uddin, referred to the harm panel’s report, but it is important to acknowledge that the panel did not call for immediate legislative change, despite hearing evidence from more than 1,200 parties. Instead, the panel recommended that a full review be undertaken by the Government, and that is precisely what we are doing.

In my respectful view, the panel was right to do so because, as the debate in Committee demonstrated, this is a complex and nuanced issue, with a significant real-world impact for the thousands of families who go through the family courts every year. That review will focus on the application of the provision and its exceptions, and the impact on children’s welfare of the courts’ application of those provisions. Through the review, we will develop a strong evidence base and ensure that any changes brought about as a result of it are rooted in a solid understanding of the effect of the presumption and the associated evidence on child welfare. I remain of the view that it would be premature to amend the Children Act in the way proposed by the amendment before gaining the in-depth evidence and response from the review.

18:00

I will return briefly to the valuable debate we had in Committee about the paramountcy principle and the potential impact of this amendment in that respect. The current legislation regarding the presumption makes it clear that the presumption should be disapplied where there is a risk of harm to the child. That means that risk of harm from a parent perpetrator of domestic abuse should already be taken into account by courts. The Children Act 1989, in placing the child’s welfare as paramount, should also ensure that courts consider the risk of a child suffering harm, or further harm, when deciding any aspect of the child’s upbringing.

As stated by the noble Lord, Lord Marks, during the debate in Committee, Section 1 of the Children Act 1989 provides that,

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

This is rightly viewed as a cornerstone of that Act. It is a central cannon of our law relating to children. It is important that any changes to the law in this area do not undermine this fundamental principle. That is my short answer to the question put to me by the noble Baroness, Lady Jones. Protecting children is at the very heart of the process.

If, however, we legislate to create automatic bans on a particular form of contact, we may not be allowing courts to take account of whether there are risks to the child in the particular circumstances of the case. I can assure the noble Baroness, Lady Fox of Buckley, that the law in this area is the opposite of one size fits all. This area of law is certainly not off the shelf; it is an area where the law is bespoke. That means that rights and risks must be weighed carefully, on a case-by-case basis, allowing the judiciary to assess each case on its own merits but always putting the welfare of the child at the very heart of the decision. It is also not clear whether such bans, if they prevent unsupervised contact following a conviction or finding of fact, should be capable of being lifted or modified at some later date if the risks in an individual case materially change. That is not something that the amendment appears to envisage.

Furthermore, in referring expressly to domestic abuse, which is only one of many circumstances which may impact on a child’s well-being and safety, the amendment could be seen to give domestic abuse prominence over other valid considerations and risks of harm to a child that judges have to take into account, such as sexual or violent offending, or a history or allegations of child abuse. It is not surprising that I can do no better than respectfully endorse the words of the noble and learned Baroness, Lady Butler-Sloss, whose experience in this area needs no comment from me. She said that the amendment would deny the important issue of judicial discretion.

I also respectfully endorse the characteristically perceptive point made by the noble Lord, Lord Marks. He pointed out the effect—or the non-effect—of the amendment on a child from a different relationship. The amendment would catch cases that ought not to be caught.

I am grateful to all noble Lords who have spoken in this short debate but, for the reasons that I have explained, the Government’s position remains unchanged on this issue. We believe that we should wait for the outcome of the review on the presumption of parental involvement before any decisions are taken on whether changes are required either to the presumption of parental involvement as a principle or to its application. To that extent, as I understood it, the position that the noble Lord, Lord Rosser, has arrived at—although he started at a different point to me—is much closer to the Government’s position. I am grateful to hear that from the noble Lord, and I therefore invite the noble Baroness, Lady Jones, to follow that lead and withdraw her amendment.

[Baroness Jones of Moulsecoomb (GP)]

I thank all noble Lords who have spoken in this short debate. I listened very carefully but did not hear anyone offer any other solution. Children are dying. Noble Lords said again and again that the current situation was not working, but still no one has come up with a solution. I take the Minister’s comments about waiting for the review, but during my political career, which has only been 20 years long, I have found that repetition works extremely well, so I repeat to him that we have to find a solution because people—children—are dying.

The noble Baroness, Lady Fox of Buckley, gave us a “what if” situation; obviously I could also do that, but I will not. Again, I am trying to save children’s lives; I did not hear any other solutions. The noble and learned Baroness, Lady Butler-Sloss, said that the amendment is too rigid, which I accept, but judges and magistrates are getting it wrong and children are dying. I thank the noble Baroness, Lady Uddin, very much for her support from her experience. She described unsafe decisions and she put my case better than I could.

The noble Lord, Lord Marks, was very kind in his comments. Of course the welfare of children is paramount, but they are not always listened to. We have to listen to them when they say that they are not happy. That is not necessarily happening at the moment. I accept that the noble Lord, Lord Rosser, tried to do this and is pursuing it in other ways. I am grateful for that and glad. I am very happy to work with him on it.

The Minister said that more needs to be done. He talked about the review and said that the amendment is premature and that we need in-depth evidence, but this situation has been happening for decades and children are still dying. I mentioned a figure because it is easy to count deaths—every death is tragic and we can count them easily. However, we cannot count the damage or the mental and sometimes physical anguish that happens to children. That is absolutely uncountable.

I have listened and I accept some of the limitations of my amendment, but I have heard nothing about a solution to stop children dying. I beg leave to withdraw my amendment.

Amendment 42 withdrawn.

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

We now come to the group consisting of Amendment 43. Anyone wishing to press this amendment to a Division must make that clear in the debate.

Amendment 43

Moved by

[Baroness Bertin]

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

[Baroness Bertin (Con) [V]]

My Lords, I laid this amendment in Committee because I was genuinely shocked that a refuge address could ever be revealed to a perpetrator. Victims are not moving to refuges because they fancy a change of scene; they are fleeing for their lives. Since laying that amendment I have heard many more anecdotes from those on the front line, suggesting that disclosure of a refuge address to a perpetrator is not a particularly rare occurrence. I am hugely troubled by this, and it is the reason why I have laid the amendment again.

I am also hugely troubled that we have absolutely no solid data on how frequently this happens. We should not have to rely on anecdotal evidence, important though it is. Surely there should be more formality in central record-keeping to document such serious disclosures.

To reach a refuge, a victim must leave behind their home, job and possessions, and in many cases they must uproot their children. To have reached the conclusion that that is the only way forward is to experience a level of trauma and abuse, and have reached a crisis point, that most of us simply cannot comprehend. We owe it to them to have a cast-iron guarantee that this course of action is not for nothing and that the law will protect them. I believe the amendment would do that.

As I said in Committee, the amendment seeks to provide a legal safety net for the secrecy of refuge addresses. The refuge model, as we know, is predicated on the secrecy and protection of safe addresses. The responsibility for protecting those addresses falls not only on the staff but on each and every resident at a refuge. Many of us in this House will have visited a refuge. I was not even allowed to talk about which part of London I had been in when discussing my visit at a later date.

By way of background, refuges can find themselves the subject of orders from the family court, particularly location orders, generally from fathers trying to locate mothers and children. Refuge providers are forced to disclose their addresses to facilitate the service of a court order on mothers, and although some protections are in place, it is clear that there are serious loopholes. As it stands, the court has discretion as to what information is provided and always has the option not to order refuges to disclose their addresses and locations. It is therefore deeply concerning that some judges either turn a blind eye or do not take enough care or proactive steps to ensure that maximum levels of confidentiality are maintained.

In the interests of time I will not repeat the two examples that I gave in Committee, but I know noble Lords will have enormous empathy for the fear and chaos that ensues when a perpetrator discovers the location of a refuge. This is not just about the safety of the residents; it also concerns the welfare of staff. They too are taking a risk in the job that they do, and should not have to put up with violent and threatening behaviour.

My amendment remains the same as in Committee and it is a simple one: the court order should never be served at the refuge itself, and the refuge address should remain confidential. It provides that the order should be served at the refuge’s office address or by an alternative method or at an alternative place. As such, the amendment would not make any significant change to the protections that already exist; it would strengthen and clarify the cases in which they should be used, so that all judges were crystal clear. In my opinion, any disclosure of the refuge address demonstrates that the existing safeguards are not adequate, and we cannot confidently say that refuge addresses will always be appropriately protected. I believe that the practice on the ground is not necessarily consistent with what is intended by the Family Procedure Rules, and they therefore require strengthening and updating.

In Committee, my noble friend the Minister raised the issue of child safety—as I am sure he will again in his response today—stating that there was some concern that an alternative route to service, such as using the office address of a refuge, would present a delay in proceedings and could have the unintended consequence of endangering the child. I reiterate once again that I respectfully disagree. I suggest that the current situation, where refuges are pressured into revealing their most fiercely guarded information, causes more delay and can of course result in significant harm. I add that refuges are not unregulated hideaways, and safeguarding standards around children will always be paramount. I stress that the amendment is absolutely not about denying contact. Indeed, if the refuge’s office address were formalised as the alternative route to service, providers would understand that they have a duty to locate the mother as soon as possible and would not be faced with a serious conflict in doing so.

In Committee, some noble Lords questioned whether it was reasonable to expect refuges to have an office address. Women’s Aid has reassured me on this point: if they do not have a separate office address, they have a PO box address that the refuge uses to ensure that GPs, police and other agencies are able to contact the women who live there.

I sincerely hope the Minister can find a way to accept the amendment, but, at the very least, I believe the guidance must be strengthened beyond doubt. I also feel strongly that the Ministry of Justice needs to find a way to keep track of the number of cases involving the service of court orders on refuge addresses and the disclosure of those addresses. If it is indeed rare then the amendment should not be too onerous, and it could ensure another check and balance on these proceedings. Furthermore, the lack of transparency in the family courts is surely something that needs looking at. I accept that that is not something for this Bill, but it has come up time and again, and it appears to present a barrier to reform.

I thank the Minister for his time on this issue. We are lucky to have his experience on these Benches, and I am sure he will bring an urgency to issues such as the one being addressed in this amendment. I beg to move.

18:15

[Baroness Hamwee (LD) [V]]

I thank the noble Baroness, Lady Bertin, for bringing this amendment back. She has explained the position very clearly. I have added my name, because the disclosure of a refuge address is something that should be avoided, can be avoided and usually is avoided—because it can be—but, if not avoided, can have very serious consequences. We spent some time on that at the previous stage of the Bill.

In Committee, the Minister said that he did “not dissent” from confidentiality being described as “of critical importance” and “essential”. If I may say so, that is very much counsel’s phraseology, and I am not sure where on the scale of strength of agreement as expressed by a member of the Bar all this comes, but it certainly means agreement. He also took on board my point about the safety of other occupants of the refuge if a determined abuser tracks down the address—a problem I have come up against.

Sometimes it is enough to say that such and such hardly ever happens and there are ways to ensure that it does not and, anyway, there are rules to cover the point. I do not put this issue in that category with any sense of ease or confidence. I join the noble Baroness in acknowledging that there are relevant rules but asking that their importance is emphasised in guidance, if the Bill is not amended.

[Baroness Uddin (Non-Afl) [V]]

My Lords, I support this amendment, eloquently and powerfully detailed by the noble Baronesses, Lady Bertin and Lady Hamwee. I agree that confidentiality must be inherent in safe- guarding women survivors, many of whom may have endured prolonged periods of violence prior to reaching the safety of a refuge.

I have worked with refuges and inside a refuge. I know how hard it is to ensure the safety of not just one individual but of a number of women and their families. There may be instances where refuge addresses are revealed by residents being followed by a perpetrator, or, in fact, survivors may reveal the address if they return to perpetrators for the countless, complex reason debated on many occasions in this Chamber. Regardless, our statutory institutions, including the courts, must uphold the essential principle of safeguarding, not just for the sake of one survivor but for all those who reside in refuges and for the staff responsible for protecting all survivors in such refuges.

It is critical that we acknowledge this, and I look forward to the Minister being persuaded, much more eloquently than I could ever do, by the noble Baroness, Lady Bertin. I thank the noble Baroness for moving this amendment and I wholeheartedly support her.

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

My Lords, I supported this amendment in principle in Committee. I expressed one or two drafting reservations, one of which was about the point that not all refuges may have office addresses, but that has been amply answered by the noble Baroness, Lady Bertin. This amendment is extremely difficult to resist with any sense of logic or safeguarding at all. The noble Baroness, Lady Bertin, has argued the case for it and I shall be extremely brief.

The point is that everybody has stressed the importance and value of confidentiality for refuge addresses. That flows from the very nature of a refuge: it is where women go—it is generally women—to avoid the consequences and a repetition of domestic abuse. Breach of that confidence leads to perpetrators discovering where their victims have gone. Discovering the whereabouts of their victims offers them a chance of harassing those victims further—of committing further abuse—so revealing a refuge address destroys the very concept that it is a refuge. It raises the risk of changing a refuge into a target. That is what this amendment is designed to avoid and I support it.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, the noble Baroness, Lady Bertin, powerfully moved this amendment and went into the detail of the problems that arise when refuge addresses are revealed. I fail to understand why judges, in her words, are turning a blind eye to the requirement to keep the secrecy of a refuge; I fail to imagine why that might be the case. Nevertheless, either mistakes happen or some judges—very few—have an alternative view. What I understand from the noble Baroness, Lady Bertin, is that she wants the Minister to put on record that guidance will be updated and to make it absolutely clear that this should not happen again. I do not know whether she is going to move her amendment or what will happen, but I would have thought that, at the very least, the Minister should be able to do that and say that guidance will be updated.

The noble Baronesses, Lady Hamwee and Lady Uddin, both have experience of working in refuges and they know the importance of keeping these addresses secret. I hope we will hear from the Minister something that sufficiently reassures his noble friend Lady Bertin that this issue can be properly addressed once and for all.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful to my noble friend Lady Bertin for her continued engagement on the issue of the confidentiality of refuge addresses. I take this opportunity to thank refuge providers and others in the sector who took time out of their very busy diaries to meet me on this issue: we had a very useful discussion.

As with many issues with the Bill, it seems to me that we all agree on the issues of principle. Refuges are places of safety. They play a vital role in effectively responding to domestic abuse, and in supporting victims and their children. Therefore, I am in complete agreement with the principle underlying my noble friend’s amendment, that those in refuges must be protected. As such, it is right that the Government and those involved in family proceedings carefully consider both whether existing measures offer enough protection and whether there are further steps that could be taken better to protect domestic abuse victims living in refuge accommodation.

In Committee, I outlined that those engaged in family proceedings are not required to disclose their address, or that of their children, unless specifically directed to do so by the court. Where such a disclosure direction is made, addresses are disclosed to the court only, and it is for the court to determine whether information it holds should be disclosed further. Where there are known allegations of domestic abuse, the court should hold this information as confidential. I reassure the noble Baroness, Lady Hamwee, that the formulation I used in Committee was certainly intended to indicate agreement.

Turning to the service of orders at refuge addresses, I again thank those from the refuge sector with whom I discussed this issue and their experience of it. They gave some valuable evidence, and we heard some more this evening from the noble Baroness, Lady Uddin. As I indicated in Committee, existing measures, particularly Part 6 of the Family Procedure Rules, enable the court to direct bespoke service arrangements, and orders can be served at alternative addresses, such as the refuge office address. This approach should be taken wherever possible.

I noted the way that the noble Baroness, Lady Hamwee, put it: service on a refuge should be avoided. However, as I said on the last group, the real question is the welfare of the child, which is of paramount consideration in family proceedings. I remain of the view that there can be limited circumstances where the court may need to serve an order on a party at the refuge they are staying in because not doing so would pose risks to the safety of children involved in family proceedings.

One can envisage such cases, and I would not wish to limit the court’s ability to act quickly in those circumstances to safeguard a child, which might occur were we to place a blanket or inflexible restriction on addresses at which an order can be served. However, I would expect family proceedings where an order needs to be served at a residential refuge address to be very few and far between. Although the question must ultimately be a matter for the judiciary and not for the Government Front Bench, one would expect that a refuge address would be used only when there is no other viable alternative in the circumstances.

I have indicated that existing measures enable protection for victims in refuges. However, I am persuaded that there is a legitimate question of whether those measures could be strengthened to ensure that victims are better protected, that addresses are not disclosed to perpetrators, and that service of orders at refuge addresses is directed only when absolutely necessary. While I am clear that primary legislation, and therefore this amendment, is not the appropriate response here, there are other routes to explore, as I have discussed with my noble friend since Committee.

This issue has been discussed between Ministers and the President of the Family Division in recent bilateral meetings. I assure my noble friend that the judiciary is taking seriously the concerns raised. I appreciate, in this context, that the noble Lord, Lord Ponsonby of Shulbrede, wanted some reassurance from the Government; I hope I am giving it to him. The Whips may not agree, but one of the benefits of making slightly slower progress on Monday than we intended is that I can now say that this matter was discussed at the meeting of the Family Procedure Rule Committee on Monday, which was a couple of days ago. The committee agreed to work on this issue and will be giving it detailed consideration in the coming weeks and months.

The Government are committed to protecting vulnerable victims of domestic abuse from further harm by their abuser. I am confident that this issue is being properly and carefully considered by members of the senior judiciary and by the Family Procedure Rule Committee. I have full sympathy with the motivation behind this amendment. I understand why my noble friend has maintained this, and why the noble Lord, Lord Marks, had considerable sympathy with it on the confidentiality point, although I note that he did not engage with the lack of any exception to the proposition set out in subsection (3) of the proposed new clause—that is, service on a refuge address.

I have used my response to set out what the Government are doing and the steps being taken. I hope that, having provided that assurance to my noble friend, she will now be content to withdraw her amendment.

[Baroness Bertin (Con) [V]]

I thank noble Lords for their valuable contributions to this short but very important debate. I am grateful to the noble Baroness, Lady Hamwee, for her support and for putting her name to the amendment, and likewise to the noble Baroness, Lady Uddin, for her kind words. It was powerful to hear that the noble Lord, Lord Marks, with all his deep knowledge of the law on these issues, and the noble Lord Ponsonby, agreed with the amendment. I felt it was important to hear them say that, and I thank them for it.

I am of course disappointed that my noble friend the Minister does not see that there is a need to put this into the Bill. I will never accept that there is justification for revealing the location of a refuge, but I have really appreciated the time that he has given to this issue. I can tell that he cares; he obviously has a concern about this issue and is committed to trying to deal with it. I absolutely accept that his response has gone further than that in Committee, so I will bank that progress and am grateful for it. We have indeed spoken at length about other routes to explore, and I will certainly be keeping in touch with him on this. I also want to pursue greater transparency.

I was very reassured—as my noble friend said, the timing has been fortunate—that the issue has already been discussed with the President of the Family Division on the back of the amendment. I do not doubt the judiciary’s willingness to tackle this and to take these accounts seriously. We will certainly keep a close eye on this and the progress that it makes. With that in mind, I will withdraw the amendment.

Amendment 43 withdrawn.

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

Amendment 44 was previously debated on Monday. Does the noble Baroness, Lady Helic, wish to move Amendment 44?

Amendment 44

Moved by

[Baroness Helic]

44: After Clause 64, insert the following new Clause—
“Training
(1) The Secretary of State shall within six months of the passing of this Act publish—(a) a strategy for providing specialist training for all magistrates and judges hearing cases in family proceedings in the Family Courts concerning rape, sexual and domestic abuse and coercive control; and(b) a timetable for the delivery of the training mentioned in subsection (1)(a),to include the training of all judges and magistrates, who are already hearing or who are to be appointed to hear Family cases and to include continuing professional development training for all such judges and magistrates.(2) The training mentioned in subsection (1)(a) must include but is not limited to training concerning—(a) the impact upon victims and witnesses, both adults and children, of the trauma of rape, sexual and domestic abuse and coercive control;(b) the risks and difficulties for victims and witnesses in giving evidence and taking part in proceedings concerning rape, sexual, domestic abuse and coercive control; and(c) the risks and difficulties for victims and witnesses of being involved in proceedings where one or more other parties may be the perpetrators of rape, sexual and domestic abuse and coercive control or persons connected to such perpetrators.(3) Before publishing the strategy and timetable mentioned in subsection (1) the Secretary of State must consult— (a) the Chairman of the Board of the Judicial College;(b) the President of the Family Division;(c) the Chief Executive of the Magistrates Association; and(d) the Domestic Abuse Commissioner.(4) After commencement of this subsection, which shall not be more than two years after the passage of this Act, the Secretary of State shall ensure that no Family cases are heard by judges or magistrates who have not successfully completed the training mentioned in subsection (1).”Member’s explanatory statement
This amendment would require the Secretary of State, in consultation with training bodies, to publish a strategy for providing specialist training on matters relating to domestic abuse for magistrates and judges hearing cases in family proceedings.

[Baroness Helic (Con) [V]]

My Lords, I wish to move Amendment 44.

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

My Lords, I shall now put the question. We have heard from the noble Baroness, Lady Helic, taking part remotely, that she wishes to divide the House in support of this amendment and I will take that into account. The question is that Amendment 44 be agreed to.

18:32

Division 2

Ayes: 286

---

Labour: 134
Liberal Democrat: 76
Crossbench: 51
Independent: 11
Bishops: 7
Conservative: 3
Green Party: 2

Noes: 252

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Conservative: 211
Crossbench: 24
Independent: 9
Democratic Unionist Party: 5
Labour: 2
Ulster Unionist Party: 1

18:44

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

My Lords, we now come to the group beginning with Amendment 45. Anyone wishing to press this or anything else in the group to a Division must make that clear in the debate.

Amendment 45

Moved by

[Baroness Lister of Burtersett]

45: Before Clause 65, insert the following new Clause—
“Controlling or coercive behaviourControlling or coercive behaviour in an intimate or family relationship
(1) Section 76 of the Serious Crime Act 2015 (offence of controlling or coercive behaviour in an intimate or family relationship) is amended as follows.(2) In subsection (1)(b), after “personally connected” insert “(see subsection (6))”.(3) Omit subsection (2).(4) For subsection (6) substitute—“(6) A and B are “personally connected” if any of the following applies—(a) they are, or have been, married to each other;(b) they are, or have been, civil partners of each other;(c) they have agreed to marry one another (whether or not the agreement has been terminated);(d) they have entered into a civil partnership agreement (whether or not the agreement has been terminated);(e) they are, or have been, in an intimate personal relationship with each other;(f) they each have, or there has been a time when they each have had, a parental relationship in relation to the same child (see subsection (6A));(g) they are relatives.(6A) For the purposes of subsection (6)(f) a person has a parental relationship in relation to a child if—(a) the person is a parent of the child, or(b) the person has parental responsibility for the child.”(5) In subsection (7), for “subsection (6)” substitute “subsections (6) and (6A)”.”Member’s explanatory statement
This new Clause would align the definition of “personally connected” in section 76 of the Serious Crime Act 2015 with that in Clause 2 of the Bill. The result is that the offence under that section of engaging in controlling or coercive behaviour would apply in relation to members of the same family, or people who have been in an intimate relationship, whether or not they live together.

[Baroness Lister of Burtersett (Lab) [V]]

My Lords, it is with great pleasure that I introduce Amendment 45 and consequential amendments, with the support of the noble Baronesses, Lady Williams of Trafford—it is not often I say that—Lady Bertin and Lady Sanderson of Welton. Aligning the definition of “personally connected” in the Serious Crime Act 2015 with that in the Bill would mean that the offence of controlling or coercive behaviour would apply whether or not the abuser and abused actually live together. It would therefore cover situations of non-domiciliary family abuse, which my noble friend Lord Hunt of Kings Heath raised in Committee, and post-separation abuse, which was the focus of my own original amendment.

Noble Lords will recall that, in Committee, there was unanimous support for that amendment. The situations we heard about were described using words such as “heart-breaking”, “tragic” and “unacceptable”, and the particular implications for older and black and minority ethnic women were brought out. Victims of post-separation abuse, and in particular economic abuse, told us of its “crippling” effects and of the “invisible chain” that it forges with an abuser they thought they had escaped. A number of noble Lords called on the Government to bring forward their own amendment if they had problems with the one I tabled. I am happy to say that that is exactly what they have done, to the credit of the Minister, who also generously suggested that the government amendment should be tabled in my name.

During the Bill’s earlier stages, Ministers said that they had to await the findings of the delayed research report that reviewed the controlling or coercive behaviour offence. In fact, this report rather sat on the fence when it came to recommending legislative change, which suggests that the Government genuinely listened to the strength of opinion expressed by your Lordships in coming to a decision. I am therefore really grateful to all the noble Lords who supported my amendment in Committee. I am particularly grateful to the noble Baroness, Lady Bertin, whom I have thought of as a noble friend because of the support that she has given me and whose commitment on these issues is second to none.

Together with a number of other noble Lords, we attended a round table the other week hosted by the domestic abuse commissioner designate, whose support has also been a significant factor, I am sure. At it, a number of participants raised the important issue of training, which we discussed more generally in relation to earlier amendments and, of course, on which we have just voted. This was one of the key findings of the official review:

“When attending domestic abuse incidents, it is vital that the police (including domestic abuse specialists) have the training and specialist resources needed to establish whether there are patterns of controlling or coercive behaviours underlying the incident that led to a police callout.”


This reflected the view across stakeholder groups that, despite improvements in the understanding and awareness of CCB, there is a need for better training of prosecutors and judges, as well as of front-line police officers in particular.

Surviving Economic Abuse—of which more in a moment—states:

“Currently, just under half of police forces in England and Wales have not received training in coercive and controlling or coercive behaviour. Government must provide funding to correct this deficit”.


I would be grateful if the Minister could tell us what plans there are to improve training and raise awareness generally of CCB and of how economic abuse fits into this pattern of behaviour, particularly in light of the amendment we just voted for. SEA also states that, at present,

“the majority of coercive controlling behaviour is not reported to the police, and many victims do not immediately recognise what is happening to them.”

Can the Minister tell us the Government’s response to the review’s recommendation that the operation of this legislative change

“should be monitored and reviewed to assess the impact”?

Before concluding, I want to voice my support for Amendments 46 and 47 in the name of the noble Baroness, Lady Campbell of Surbiton. She made a powerful case on Monday and, following the vote on Amendment 4, it would be good if the Government were willing to concede on these related amendments and treat them as consequential.

The Government’s decision to accept an amendment on post-separation abuse has been widely welcomed by organisations on the ground, and by survivors themselves. I pay special tribute to Surviving Economic Abuse, which has campaigned on the issue of post-separation economic abuse with such determination and skill, in response to concerns raised by victims and survivors. It has shared with me, anonymised, some of the responses that it has received from these women. They are truly heartwarming. I will quote just two: “Thank you for sharing this amazing piece of news. I am crying with happiness.” “I woke up this morning and saw the news and I was practically jumping up and down with joy. Yes, joy. These milestones that SEA achieves or helps achieve ... are like magic healing for my soul, this one in particular.”

Many of these women have shown such courage in speaking out and have undergone such an ordeal just at the point at which they believed that they had broken free of their abusers. I dedicate this new clause to them. I beg to move.

Amendment 46 (to Amendment 45)

Moved by

[Baroness Campbell of Surbiton]

46: Before Clause 65, in subsection (4), after inserted subsection (6)(g), insert—
“(h) A is a carer for B who is a disabled person.”Member’s explanatory statement
This amendment and the other in the name of Baroness Campbell of Surbiton to Amendment 45 would amend the new Clause in the name of Baroness Lister of Burtersett to ensure that the definition of “personally connected” in section 76 of the Serious Crime Act 2015 includes the relationship between a disabled person and their carer in line with the amendments to the definition in Clause 2 of this Bill in the name of Baroness Campbell of Surbiton.

[Baroness Campbell of Surbiton (CB) [V]]

My Lords, in moving Amendment 46, I will speak also to my Amendment 47 and to Amendment 45 in the name of the noble Baroness, Lady Lister, to which my amendments are attached and which I strongly support.

My amendments bring controlling or coercive behaviour within the scope of Section 76 of the Serious Crime Act 2015. Amendment 46 mirrors Amendment 4, which was considered and overwhelmingly agreed to by the House on Monday.

I had intended to divide the House on Amendment 46 if the Minister could not accept it. I will not do so for one reason, and one reason alone. Just this morning, I learned that it could jeopardise Amendment 45, which is supported by the Government. I have no wish to risk another important amendment and potentially lose both it and my amendment. I have great admiration for the noble Baroness, Lady Lister, and support her amendment overwhelmingly. Noble Lords will undoubtedly understand my reasons. I had not expected that kind of unwelcome surprise today.

Controlling or coercive behaviour, which is part of the definition of domestic abuse under Clause 1 of the Bill, is an offence under Section 76 of the Serious Crime Act. Such behaviour is unfortunately a common form of abuse by carers. Amendment 45 amends the definition of “personally connected” in Section 76 to align it with Clause 2. The importance of including disabled people applies equally to the offence under Section 76. I set this out extensively on Monday and will not rehearse those arguments. It is worth noting that the draft guidance on Clause 2 relies on the guidance on Section 76 to explain controlling or coercive behaviour. They are complementary.

The two sets of provisions are totally interrelated. These amendments would ensure they remain consistent and ensure the coherence of the statutory abuse regime. It is very disappointing to not be able to follow that through for the protection and safety of disabled people if these amendments do not go through today. I await the response of the Minister in the sincere hope that she will accept these amendments. I beg to move.

[Baroness Grey-Thompson (CB) [V]]

My Lords, I speak to Amendments 46 and 47, which are in the name of my noble friend Lady Campbell of Surbiton and to which my name is also added. Because Amendments 46 and 47 are an amendment to 45—and I do not wish to quote sections of the Companion to the Standing Orders to your Lordships’ House—I would like to make clear that those listed as signatories have been put in the unenviable position of making the heartbreaking decision of whether to divide the House and risk preventing the valuable amendment put by the noble Baroness, Lady Lister, from being passed.

In speaking after my noble friend, I do not wish to reiterate what has already been well articulated. I would like to thank the staff of your Lordships’ House, the disabled peoples’ organisations and many disabled women for the considerable amount of work they have put into this Bill. If there is one thing I ask of the Minister and the Bill team, it is that, when legislation that has such an impact on disabled people is being considered, disabled peoples’ organisations are expressly and extensively consulted. The added issues disabled people face should always be included.

On Monday it felt that, while we might not have convinced Her Majesty’s Government of the need to include disabled people in this Bill, the Chamber strongly supported my noble friend’s amendments. I would like to thank the 318 Peers who voted to support and include disabled people this week. I am expecting that there will be much support as we debate this group, but there will be push-back from Her Majesty’s Government.

Having re-read Hansard several times this week, I fear that we still have to convince Her Majesty’s Government of the need to protect disabled people. It is important and welcome that controlling or coercive behaviour is more widely understood across society, but that same protection does not appear to be afforded to disabled people. For that, I am extremely disappointed.

I wholly, but with a sad heart, support my noble friend’s decision tonight. As I mentioned at the beginning of my speech, my noble friend has been put in the unenviable position of having to explain to disabled people who experience abuse in a domestic setting—whom she has spent a considerable part of her working life supporting and protecting—that the politics and procedures we are operating under have excluded their place in the Bill.

I know from extensive discussions with those involved in these amendments that, in accepting and supporting the amendment of the noble Baroness, Lady Lister, which I absolutely do, if the House were divided we might put Amendment 45 at risk. There is always a price to pay by some in bringing legislation. Tonight, and in this instance, the price is being heavily paid by disabled people.

[Baroness Bertin (Con) [V]]

My Lords, I will speak to Amendment 45, but I do want to reference the noble Baronesses, Lady Campbell of Surbiton and Lady Grey-Thompson. Their words have been very powerful, and we should never forget about the rights of disabled people. We should always try and give them a voice and make sure they are heard, because they are not heard enough in my view.

19:00

I will also begin my speech on Amendment 45 with some thanks. We definitely would not be here welcoming this amendment without Nicola Sharp-Jeffs and her team at Surviving Economic Abuse. Cassandra Wiener also deserves enormous praise and was the first person to make me aware of this problem. The noble Baroness, Lady Lister, is the living embodiment of a hard-working Peer, and her persistence definitely got this over the line. These people and others made the case so clearly for a change in the law.

Over the past few weeks, we have heard many stories from victims of domestic abuse. They have changed my understanding of the scale of the problem: they are stories of abuse that last for years, even decades, and, very often, well beyond the end of a relationship. Coercive control only applying to those still in their abusive relationships was a dark gap in our current legislation, and I am so delighted that the Government have agreed to right that wrong. They send a powerful message to victims that the law is on their side.

In the weeks, months and years ahead, it will be crucial to raise awareness of this crime and to make victims and society more widely mindful that controlling behaviour, either in a relationship or after it has ended, is not okay. We all need to play our part in this; if we have friends with whom we suspect something is not quite right, we should not turn a blind eye. This is not about snooping or gossiping but about being there for each other.

The Government and their statutory agencies must also ensure that they do not make good law only to fall short in executing it. As we have heard a lot during the course of the Bill, training is paramount, whether it is for the police, judiciary, GPs or anyone else who could be the first point of contact. They must know how to spot the signs and have the right pathways to the next steps.

The media also has a big role to play. My noble friend Lady Sanderson made a brilliant speech in Committee, where she made the point that story lines in popular soaps are crucial to getting the message out there. She is quite right: let us face it, more people are watching “Coronation Street” than listening to us. I know that my noble friend is very sorry not to be speaking in today’s debate. She also deserves a lot of credit for the work that she has done in this area.

Businesses must also step up and make sure that their employees are supported and that they do what they can to raise awareness among their managers, and they must put in place strategies for people to seek support. Consumer-facing companies can also add their shoulder to the wheel: schemes like “Ask for ANI”, in over 3,000 pharmacies—as the Minister has mentioned many times—are hugely important, as is the work that companies like Lloyds Bank have done to offer support and advice to victims going through financial abuse. All of this can play a crucial role.

I also plead with the headline writers of some of our nation’s favourite news outlets not to belittle or include the defence of a killer over and above the reality of a brutal murder. All too often, we read that a nagging wife has been killed or that the victim was drunk when she died—so what? Coercive control, both in and outside relationships, can be complex and hard to understand, even for those experiencing it. Many victims may not even be aware that what is happening to them is abuse.

Part of the battle will now be to ensure that they understand the legal protections that they have and ensure that we give them all the help that they need to use them. I thank the Government again: this amendment really matters.

[Baroness Jolly (LD) [V]]

My Lords, Amendments 46 and 47, in the name of the noble Baroness, Lady Campbell of Surbiton, would amend the new clause in Amendment 45, proposed by the noble Baroness, Lady Lister of Burtersett, to ensure that the definition of “personally connected” in Section 76 of the Serious Crime Act 2015 includes the relationship between a disabled person and their carer, in line with the amendments of the noble Baroness, Lady Campbell of Surbiton, to the definition in Clause 2 of the Bill.

Amendments 45, 46 and 47 sit together, and I hope that the Minister can be persuaded to add her name to Amendments 46 and 47. The new clause proposed in Amendment 45 would align the definition of “personally connected” in Section 76 of the Serious Crime Act 2015 with that in Clause 2 of the Bill. The result is that the offence under that section of engaging in “controlling or coercive behaviour” would apply in relation to members of the same family or people who have been in an intimate relationship, whether or not they live together.

Amendment 46 seeks to ensure that the relationship between a disabled person and their carer is included. This amendment and Amendment 47 in the name of the noble Baroness, Lady Campbell of Surbiton, would amend the new clause proposed by the noble Baroness, Lady Lister of Burtersett, in Amendment 45 to ensure that the definition of “personally connected” in Section 76 of the Serious Crimes Act 2015 includes the relationship between a disabled person and their carer, in line with the amendments from the noble Baroness, Lady Campbell of Surbiton, to the definition in Clause 2.

I also highlight that the term “disability” includes learning disabilities, which is important in this context. Many parents choose to look after their children with a learning disability rather than entrust their care to an organisation. When the child becomes an adult and the parents are older and frail, what had been a loving relationship often becomes tense and fraught, and can lead to violence and abuse. This can apply equally when a person with a learning disability has a carer rather than parents. What started as a positive relationship can turn sour, and the abuse of one party by the other and violence are often the outcome. In this case, with no parents, it is the local authority that has the responsibility to sort the problem out.

This is a good suite of amendments and I am happy to support them.

[Baroness Hayman (CB) [V]]

My Lords, I will speak briefly to Amendment 45, but before I do so, perhaps I may record my concern at the situation described by the noble Baronesses, Lady Campbell, Lady Grey-Thompson and Lady Jolly, in relation to people with disabilities. I hope that the Minister will be able to give some comfort from the Front Bench on what is obviously a very unsatisfactory situation.

On Amendment 45, I want simply to add my thanks to the noble Baroness, Lady Lister, and the supporters of her amendment, both inside the House and those who have campaigned outside it, for this change to the provisions regarding post-separation coercive control. I also express my gratitude to the Minister for listening and, more than that, acting by adding her name to the amendment. Like the noble Baroness, Lady Lister, I have had a tremendously positive response to the news that the change was to be made. I can do no better than to quote from a note I have received from the director of the Daisy Programme in Norfolk, of which I am a patron. She has said, “We continue to witness at first hand the insidious nature of continued domestic abuse post separation and the controlling nature of perpetrators. Retraumatising of survivors is common as they continue to tell, retell and tell once again their stories, leaving little time to begin the process of rebuilding their lives.”

These amendments will support survivors and children who have been deeply impacted. As others have said, these are important amendments that will change people’s lives, and I welcome them.

[Baroness Uddin (Non-Afl) [V]]

My Lords, it is a privilege to take part in this debate. Before I speak to Amendment 45, I want to echo other noble Lords’ sentiments and say how heroic my friend the noble Baroness, Lady Campbell of Surbiton, has been in her undeniable and outstanding leadership. I am delighted to call her a friend. Another incredible champion of people with disabilities is the noble Baroness, Lady Grey-Thompson, who is also a friend. Her words are etched and lie heavily on my heart as someone who has cared for a disabled adult for 42 years. I hope that we can get to a place where we can find some solutions.

I thank and salute my noble friend Lady Lister and her long list of supporters and welcome Amendment 45, which seeks to strengthen the legislation on post-separation controlling or coercive behaviour, making it no longer a requirement that abusers and victims must live together for it to apply. This is an important amendment that will lead to post-separation abuse becoming a criminal offence. I am grateful to the Minister for her personal persistence and advocacy. Many survivors will today express small relief and quiet prayers for the protections to come.

There are many ways in which perpetrators can control the lives of survivors, to devastating effect, whether they live together or not. These include using financial dependency, and the survivor’s desire to protect their children from poverty; societal and cultural pressures; and a lack of belief on a survivor’s part that it is not her fault, that she has not contributed to her partner’s, husband’s, lover’s or family member’s violence or coercive behaviour. Ex-partners may also use cultural references, faith or social norms to continue to torment survivors, whose self-belief and confidence may have been substantially depleted with questions: why did she not leave? Was the decision to divorce or separate right? Was it in the best interests of the children?

I speak from considerable experience, having for years supported women who suffer from controlling behaviour, even after separation and divorce. I wish to single out one incident I witnessed earlier today outside my door of an ex-partner turning up at the survivor’s parents’ home, demanding to see her and her child. They have been divorced for nearly four years. The woman in question was so traumatised and frightened that I had to grab her, get her inside the house and calm her down. Her ex-partner was so obsessed with having the children and seeing the woman that he left only when I threatened him with reporting the matter to the police. Anyway, I do not want to go into any further details.

All survivors will understand the intense fear of the extents to which an angry perpetrator may go, in addition to external means of control: intimidation, threats of violence, and denigration of the mind through the instrument of internalised fear. The perpetrators do not even have to be present; survivors can easily be reached by modern methods. Constant voice, text and video messages can create psychological and emotional havoc by inducing imminent and ever-present danger while the survivor is silenced. This is often destructive to their long-term well-being.

As Surviving Economic Abuse outlines, economic abuse does not require physical proximity. It can escalate, or even start, after separation, creating significant barriers for victims seeking to rebuild their lives. This amendment is needed because abusers often continue to use coercive control after separation, and victims are at a heightened risk of homicide in this period. We all know that lack of access to economic resources can result in a victim staying with an abusive partner for longer and experiencing more harm as a result. Noble Lords will be familiar with the experiences of survivors who face additional forms of discrimination, including black and other minority women, women with disabilities, migrant women and women from LGBT communities, who continue to face serious barriers to protection, safety and support.

19:15

While the Bill crucially ratifies the Istanbul convention, the legislation does not meet the key commitments in this landmark treaty on violence against women and girls, including, most urgently, equal protection and support for migrant women. No survivors should be left without access to a safety net. It is essential that the Bill delivers reforms to “no recourse to public funds” and to safe reporting for migrant women.

While improvements to the criminal justice response to domestic abuse are needed, the Government are moving on non-fatal strangulation, threats to share intimate images and post-separation coercive control. However, survivors are calling for change to housing and welfare provision, well-informed family courts, protection and support for children and critical access to community-based services which may provide them with legal advice as well as therapeutic services, for them to be safe as they begin their journey to recovery.

No matter how far back I look—I have lived for 61 years—I can recall the suffering only of women in these contexts and circumstances. I agree that men suffer too and may have once been the sons of women who endured violence. I hope the Bill will ensure and enshrine that women receive a seamless service which is well co-ordinated, financially backed and underpinned by guaranteed services and law so that the next survivors can receive justice.

[Baroness Warwick of Undercliffe (Lab) [V]]

My Lords, I declare an interest as chair of the National Housing Federation, the trade body for housing associations.

I do not need to repeat the statistics so vividly described by my noble friend Lady Lister and others on the use of coercive control after separation. Suffice it to say that they are clear and troubling enough for the Government to acknowledge both that economic abuse is linked to physical safety and that something must be done swiftly to protect these women. I support all the points raised by my noble friend so powerfully in introducing this amendment; I also pay tribute to the noble Baronesses, Lady Campbell of Surbiton and Lady Grey-Thompson, whom I would have supported. I hope the Minister can respond positively to the dilemma in which they have so troublingly found themselves.

In my brief contribution I will highlight just three things, focusing on what further action is needed once the amendment is incorporated into the Bill and implemented. First, there has been in the past a missed opportunity to see patterns of behaviour which should have led to greater awareness of coercive control behaviours, so it is vital to create greater awareness and understanding of these patterns of behaviour and how economic abuse fits into them. That can be done only through training of professionals right across the police and criminal justice system. This has come up on other parts of the Bill, including very recently, and I hope the Minister will address it in her response.

Secondly, when legal aid is sought, survivors could be unfairly assessed as failing the means test due to money or assets they appear to own but which they are unable to access or control due to economic abuse. Will the Minister acknowledge this and undertake to refer it to her MoJ colleagues to ensure it is taken into account in the legal aid inquiry? In that context, I very much support Amendment 71 in the name of my noble friend Lord Kennedy.

Thirdly, the SEA charity, whose briefings on this—as every contributor to this debate has said—have been invaluable, highlights the inadequacy of data collection on controlling or coercive behaviours in both the Crime Survey of England and Wales and ONS reports. Can the Minister, in taking forward this legislation, undertake to ensure that this is brought to the attention of the relevant government department so as not to undermine the effectiveness of this excellent piece of legislation, which she has so ably steered through this House?

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, Amendment 45 is crucial and unreservedly welcome. It is awful to see someone subject to coercive control; to see how the woman—I have seen only women subject to it—is made mentally and physically ill by such passive-aggressive behaviour. Sometimes it is more active than passive. By adding her name to this amendment, the Minister has shown her understanding of this.

Amendments 46 and 47 are similarly essential. Coercive control can be very difficult to pick up under safeguarding. As the noble Baroness, Lady Jolly, stated, disability applies to those with profound learning difficulties as well as serious physical difficulties, but their communication difficulties can make it very hard to detect what is going on. As the noble Baroness, Lady Uddin, described, the terrible fear induced in the victim is something that feeds the controlling coercive behaviour from the abuser.

None of us wants to delay the Bill. I hope the Minister will take to heart and address the difficulties that my noble friends Lady Campbell of Surbiton and Lady Grey-Thompson have been put in, and will seek to ensure that the statutory guidance relating to the Bill recognises that there is true domestic violence occurring from personally connected intimate care providers.

[Baroness Burt of Solihull (LD)]

I am grateful to have the opportunity to speak. I was delighted to see the Minister’s name on Amendment 45 and the consequential Amendments 88, 89 and 96. That is three times that I have been delighted today so I do not quite know what is going on. I welcome the extension of “personally connected” in the context of coercive control to family members or people who have been in an intimate relationship, whether living together or not.

The noble Baroness, Lady Lister, talked about how important training for police and professionals is in the implementation phase. As several noble Lords have said, a lot of individuals who are being coercively controlled do not know or appreciate that fact. It is a bit like the story of the frog in the beaker where the water gets heated more and more, very gently, and the frog does not realise that it is trapped until it is too late. It really makes a difference if other people can recognise what is going on, perhaps even before the victim themselves.

Post-separation abuse is a terrible thing. Having thought that you had escaped the abuse but then realising that you are being dragged back and dragged down financially and emotionally takes a toll. We have heard a number of examples of just how awful that is, so I cannot say just how happy I am.

We have been pushing the boundaries somewhat regarding the definition of “personally connected” in several contexts. I will talk about disabled people in a second but, with regard to family members or people who have been in an intimate relationship, whether or not they are living together, I am glad that the Minister has listened. I am sure that is right, and the Bill will be stronger for it.

Amendments 46 and 47 extend the definition to the relationship between a disabled person and their carer. We had this discussion on Monday, so I will not repeat the arguments that were used then, but I was disappointed by the Minister’s response. The House showed its concerns and feelings, and I hope that the Minister takes them into account in her remarks, but also takes the opportunity to have another think before Third Reading and the Bill goes back to the House of Commons.

We strongly need disabled people to be heard. We heard strong arguments for this on Monday and tonight, not least from the noble Baroness, Lady Grey-Thompson. I hope that the Minister listens to them. I very much welcome Amendment 45.

[Lord Rosser (Lab) [V]]

Amendment 45 ensures that the existing offence of coercive or controlling behaviour applies to abuse that happens post-separation by extending the offence to cover those who no longer live together. It aligns the definition of “personally connected” in Section 76 of the Serious Crime Act 2015 with Clause 2 of the Bill, and the result is that the offence of controlling or coercive behaviour will apply to members of the same family or people who have been in an intimate relationship, whether or not they live together.

Amendments 46 and 47 amend Amendment 45 to include the relationship between a disabled person and their carer in the definition of “personally connected” in the Serious Crime Act 2015 to reflect the changes made to the Bill when the earlier amendments of the noble Baroness, Lady Campbell of Surbiton, were agreed on Monday. I congratulate my noble friend Lady Lister of Burtersett for the determination that she has shown in pursuing Amendment 45 and the strength of the case that she has marshalled in support. This is a key amendment for us and, most importantly, a key change for survivors living with abuse after separation. I hope that, after today, they feel that their voices have been heard. We also appreciate the Government’s willingness to support the amendment and the role that the Minister has played. We trust that the House now does likewise.

I also pay tribute to the work of the noble Baroness, Lady Campbell of Surbiton. We strongly support Amendments 46 and 47 in her name, but understand why she now feels that she cannot divide the House, in the light of the Government’s apparent stance on those amendments and the impact that could have on Amendment 45 if they were carried.

The House has already shown its support for the inclusion of carers in the definition of “personally connected”, through the vote on Monday in support of earlier amendments from the noble Baroness, Lady Campbell of Surbiton. We regard Amendments 46 and 47 as consequential parts of the package. As I have already stated, part of what Amendment 45, in the name of my noble friend Lady Lister of Burtersett, achieves is to align the definition of “personally connected” in the Bill with the Serious Crime Act 2015. On Monday, this House added carers to the definition of “personally connected” in the Bill. That is why we believe that the Government should recognise the outcome of the vote on Monday and accept Amendments 46 and 47 as effectively consequential, as the noble Baroness, Lady Campbell of Surbiton, asked. They should give a clear assurance that they accept them, as government support for Amendment 45 means that they will make sure that that amendment, in the name of my noble friend Lady Lister of Burtersett, is still enshrined in the Bill when it becomes an Act.

I hope that the Government think hard about their response to these amendments, particularly to Amendments 46 and 47. If they do not feel that they can give a positive response tonight, along the lines asked for by the noble Baroness, Lady Campbell of Surbiton, perhaps they could reflect further and come back on Third Reading.

19:30

[Baroness Williams of Trafford (Con)]

My Lords, as noble Lords have pointed out, Amendment 45 removes the cohabitation requirement contained within the controlling or coercive behaviour offence in Section 76 of the Serious Crime Act 2015. This would extend the reach of the offence, meaning that it may apply to post-separation abuse, or to any family member regardless of whether they lived with the victim.

As noble Lords will be aware, the current offence applies only to those who are “personally connected” as defined in Section 76 of the 2015 Act. This definition applies to those in an intimate personal relationship—whether or not they live together—or to those who live together and have either been in an intimate relationship or are members of the same family. The definition in the 2015 Act is therefore out of sync with the definition in Clause 2 of this Bill.

The Government have listened carefully to the debate in Committee, where the noble Baroness, Lady Lister of Burtersett, the noble Lord, Lord Hunt of Kings Heath, and many others argued for the controlling or coercive behaviour offence to be extended to cover post-separation abuse between intimate partners and interfamilial abuse regardless of whether the family members were living together. In Committee, I asked noble Lords to await the outcome of the review into the controlling or coercive behaviour offence—I really meant it—and I am pleased to say that this review has now been published.

The review found that police-recorded controlling or coercive behaviour offences, as well as prosecutions, have increased year on year since the introduction of the offence. However, the review also found there is still room for improvement in responding to this abhorrent crime. The review considered views from a number of stakeholders, who expressed concern that the cohabitation requirement in the offence is preventing some victims of this abuse from seeking justice, and that it poses challenges for police and prosecutors in evidencing and charging abusive behaviours under other applicable legislation.

Calls from domestic abuse services echo concerns around the cohabitation requirement of the offence, given that we know that victims who leave their perpetrators are often subjected to sustained or increased coercive or controlling behaviour after separation, and are statistically at the highest risk of homicide within the period immediately after they have left.

Controlling or coercive behaviour is an insidious form of domestic abuse and this Government are committed to ensuring that all victims are protected. We have heard the experts and considered the evidence on this issue and I am very pleased to support the amendments brought forward by the noble Baroness, Lady Lister. She has campaigned on it. She owns it. I am very happy that she is the sponsor. I commend the resolute campaigning on this issue by Surviving Economic Abuse and other organisations. I acknowledge the points made by the noble Baroness, Lady Warwick, and I will draw her comments to the attention of my colleagues in the MoJ.

Amendment 45 will bring the definition of “personally connected” as used in the controlling or coercive behaviour offence into line with that in Clause 2 of the Bill and send a clear message to both victims and perpetrators that controlling or coercive behaviours, irrespective of the living arrangements, are forms of domestic abuse.

This Government are committed to doing all we can support victims and to tackle offenders. I am delighted that, in removing the cohabitation requirement in the controlling or coercive behaviour offence, we can take another step towards ensuring that every victim has access to the protection they need.

Amendments 46 and 47 seek to expand the definition of “personally connected” within the revised offence of controlling or coercive behaviour to include both paid and unpaid carers. I made it very clear during the debate on Monday on earlier amendments tabled by the noble Baroness, Lady Campbell, that the Government absolutely recognise that abuse can be perpetrated by carers. The other point that I made on Monday was that many carers will be captured by the “personally connected” definition, being family members or partners. However, I reiterate that extending that definition in the context of what is a domestic abuse offence 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 an 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 of course covered by other legislation, and would confuse the meaning of “domestic abuse”.

The noble Baronesses, Lady Lister and Lady Burt, talked about the important issue of ongoing training. I acknowledge that there is more to do to ensure that the offence is understood, and we will update the statutory guidance, in consultation with police and others.

In answer to the question from the noble Baroness, Lady Lister, about what next, we will be strengthening the legislation around controlling or coercive behaviour to ensure that all victims of domestic abuse are able to receive protection, regardless of their living arrangements with their abusers. This summer we will be publishing a domestic abuse strategy, which will build on the work to date to help to transform the response to domestic abuse and to tackle perpetrators. We will consider the wider policy and data recommendations made in the review throughout the development and implementation of the strategy, and we will of course continue to engage with domestic abuse organisations throughout the process.

The noble Baroness mentioned monitoring. At the moment, all legislation is subject to ongoing review and monitoring, and we have the very important benefit of the domestic abuse commissioner, who I know will be keeping a very careful eye on how the legislation is working in practice.

I will not repeat the other points that I made on Monday, but I hope that, in the light of the debate then and my response today, the noble Baroness, Lady Campbell, will be content not to move her amendment. To be clear, the Government’s position on Amendment 45, should Amendments 46 and 47 be moved, is that we will not support Amendments 46 and 47. There is cross-party support for Amendment 45 as currently drafted, and I urge the House not to detract from that should it come to a vote on Amendment 46. The House must of course first reach a decision on that amendment.

[Baroness Campbell of Surbiton (CB) [V]]

My Lords, I thank all noble Lords who have supported my amendments. I am grateful for the very kind words about my own personal commitment to these issues and that of my noble friend Lady Grey-Thompson, who has wheeled with me through this amendment rollercoaster today. Disabled people, who face so many barriers in their fight for equal dignity and safety from those who may abuse their vulnerability, need this support; it gives them all strength to carry on.

I am of course deeply saddened by the Minister’s response. As I said earlier, I am not able now to divide the House; my hands are tied. I have no alternative than, very sadly, to withdraw my amendment.

Amendment 46 (to Amendment 45) withdrawn.

Amendment 47 (to Amendment 45) not moved.

[Baroness Lister of Burtersett (Lab) [V]]

My Lords, before the Question is put on Amendment 45, I first pay tribute to the noble Baroness, Lady Campbell of Surbiton, who is my noble friend, and the noble Baroness, Lady Grey-Thompson. They have made a tremendous sacrifice, and we should acknowledge that. It saddens me, because this is a time when I feel so happy that Amendment 45 is going to go through. I am just really sorry that it has been at the expense of what they have been campaigning for. I ask the Minister to reflect on the number of noble Lords who have asked her to think again about this before Third Reading.

On a happier note, I thank the Minister for her response on Amendment 45, of which she is of course a co-sponsor; I am particularly grateful that she has taken on board and answered in detail the question of “Where now?” This is really just the first step. There is a lot that needs to be done with the development of the domestic abuse strategy to make sure that we raise awareness and implement training, monitoring and so forth.

I want to take this opportunity to thank again all those who have made Amendment 45 possible. Those who have survived economic abuse must take such pride in what has been achieved this evening. I thank colleagues across the House, both those who have spoken this evening and those who spoke in Committee. I thank the Minister, the noble Baroness, Lady Williams of Trafford, who has, I am sure, been pivotal to the Government listening and then agreeing that this particular formulation of the amendment be put forward. I also thank the many women who have spoken out in recent years.

It seems fitting to give the last word to one of these women who has been in touch with me. This is what she said—I have reduced it down, because it was a longer email:

“The Government’s announcement … is such positive news. I just wanted to stay a huge thank you and let you know how grateful I am … and also to your colleagues for all their tremendous care and commitment. Thank goodness the Government has listened.”

Amendment 45 agreed.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, we have completed scrutiny of 10 groups of amendments and have a further seven to cover today, so I suggest that this might be a sensible moment for a short break.

19:44

Sitting suspended.

19:57

[The Deputy Speaker (Baroness Barker) (LD)]

My Lords, we now come to the group beginning with Amendment 48. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Amendment 48

Moved by

[Baroness Morgan of Cotes]

48: Before Clause 65, insert the following new Clause—
“Disclosure of private sexual photographs and filmsThreats to disclose private sexual photographs and films with intent to cause distress
(1) Section 33 of the Criminal Justice and Courts Act 2015 (disclosing private sexual photographs and films with intent to cause distress) is amended as follows. (2) In the heading, after “Disclosing” insert “, or threatening to disclose,”.(3) For subsection (1) substitute—“(1) A person commits an offence if—(a) the person discloses, or threatens to disclose, a private sexual photograph or film in which another individual (“the relevant individual”) appears,(b) by so doing, the person intends to cause distress to that individual, and(c) the disclosure is, or would be, made without the consent of that individual.”(4) In subsection (2)—(a) after “disclose” insert “, or threaten to disclose,”;(b) for “the individual mentioned in subsection (1)(a) and (b)” substitute “the relevant individual”.(5) After subsection (2) insert—“(2A) Where a person is charged with an offence under this section of threatening to disclose a private sexual photograph or film, it is not necessary for the prosecution to prove—(a) that the photograph or film referred to in the threat exists, or(b) if it does exist, that it is in fact a private sexual photograph or film.”(6) In subsection (4)(a), after “disclosure” insert “, or threat to disclose,”.(7) In subsection (5)—(a) in paragraph (a), for “the individual mentioned in subsection (1)(a) and (b)” substitute “the relevant individual”;(b) in paragraph (b), for “the individual mentioned in subsection (1)(a) and (b)” substitute “the relevant individual”.(8) For subsection (8) substitute—“(8) A person charged with an offence under this section is not to be taken to have intended to cause distress by disclosing, or threatening to disclose, a photograph or film merely because that was a natural and probable consequence of the disclosure or threat.”(9) In section 35 of that Act (meaning of “private” and “sexual”), in subsection (5)(c), for “the person mentioned in section 33(1)(a) and (b)” substitute “the relevant individual (within the meaning of section 33)”.(10) In Schedule 8 to that Act (disclosing private sexual photographs or films: providers of information society services)—(a) in the heading, after “Disclosing” insert “, or threatening to disclose,”;(b) in paragraph 5 (exception for hosting)—(i) in sub-paragraph (1), after “sub-paragraph (2)” insert “, (2A)”;(ii) in sub-paragraph (2), in the words before paragraph (a), after “if” insert “, in the case of information which consists of or includes a private sexual photograph or film,”;(iii) after sub-paragraph (2) insert—“(2A) This sub-paragraph is satisfied if, in the case of information which consists of or includes a threat to disclose a private sexual photograph or film, the service provider had no actual knowledge when the information was provided—(a) that it consisted of or included a threat to disclose a private sexual photograph or film in which another individual appears, (b) that the threat was made with the intention of causing distress to that individual, or(c) that the disclosure would be made without the consent of that individual.””Member’s explanatory statement
This new Clause would amend the offence under section 33 of the Criminal Justice and Courts Act 2015, of disclosing a private sexual photograph or film with intent to cause distress to an individual who appears in the photograph or film, so as to include threats to disclose private sexual photographs and films.

[Baroness Morgan of Cotes (Con) [V]]

My Lords, it is a pleasure to take part in the later stage of debates on this important Bill, and to move Amendment 48. I thank my noble friend Lady Hodgson and the noble and learned Lord, Lord Judge, for their support, and particularly my noble friend the Minister for adding his name to this amendment. I thank the noble Baronesses, Lady Crawley and Lady Grey-Thompson, who supported the amendment that I tabled in Committee, and I thank all the Ministers involved in the Bill, in this House and in the House of Commons, for their engagement on the issue of criminalising the threat of sharing intimate images.

I pay tribute to Refuge, particularly its tech abuse team, who first identified this as an issue, and to those brave survivors who have spoken out about the toll that the sharing of images and the threat of sharing images has taken on them. They have been very clear about the devastating long-term impact on their lives. If any noble Lord or anyone watching this debate has any doubt about that, I recommend that they watch the very powerful film that the survivor Zara McDermott has made about this, which was released within the last month.

20:00

I suspect that I am not alone in this House in often being asked what the House of Lords actually does. This amendment and the debate around it provide a very good example of how this House makes a real difference to the lives of our fellow citizens. An issue of harm was identified; a suitable legislative opportunity was spotted; an amendment was tabled and debated, and the Government have listened and accepted the arguments that were made. I very much welcome the Government’s support for Amendment 48 and the consequential amendments, which will extend the offence of disclosing intimate images with the intent to cause distress to cover threats to share those intimate images. It will make a significant difference to the 4.4 million people in England and Wales, including the one in seven young women, who have experienced this form of abuse.

These women have lived with the impact of the threat to share, often for many years, with little, if any, police support. The impacts include panic attacks for a fifth of women, suicidal ideation for 10% of women, and an increased risk of physical harm for one in seven women. Women are also changing their behaviours, as I said in my speech in Committee, often including going back to their abusers, granting them access to children or changing their evidence.

It was discussed in Committee that the Law Commission would be publishing proposals for further reform of image-based abuse offences. That report has now been published, and it highlights a number of further issues to be explored. I very much look forward to working to improve the law more broadly on image-based abuse and increasing protections for survivors. The report looks at the motivation element of both disclosure of and, now, threats to disclose intimate images. Currently, in order to be a crime, the intent to cause distress must be proved, and the commission has rightly pointed out that that is often difficult. It provisionally recommends amending the intent element of the offence because abusers often have motivations additional to the intent to cause distress, such as causing humiliation, taking revenge or smearing the reputation of survivors, which ought to be captured in the criminal law.

The Law Commission report also examines culturally specific elements of what might constitute an intimate image, which are not captured in various abuse laws. This requires careful investigation to ensure that no woman can be abused by the exposure or threatened exposure of what she and her community might judge to be intimate and to ensure that all women are protected.

Then, of course, we need to address the creation of deepfakes or photoshopped images, where images are altered to make it look like the survivors are the subject of the photo or video. They are commonly in pornographic materials, and not yet adequately covered in law. However, let us make no mistake: Amendment 48 and the creation of a new offence of threatening to disclose a private sexual image with the intent to cause distress is a significant step forward for the millions of women who have experienced this deeply distressing form of domestic abuse.

As I said in Committee, at the moment the police and others, such as the Crown Prosecution Service, are often not clear about which offence the threat to share could be prosecuted under. That is why I and many other noble Lords were keen that this amendment be accepted. Amendment 48 could give the police, the CPS and the wider criminal justice system the legal tools they need to investigate and prosecute a significant proportion of these threats, and offer women the protection and peace of mind they need to move on. That is especially true if the proposed remedy includes the deletion of the images from the perpetrator’s devices, so I strongly encourage the Government to look into that and adopt that proposal. I also encourage the Government to ensure that the police and the CPS have the training they need to thoroughly investigate and prosecute these crimes, and to ensure that these agencies and the specialist services that support survivors have the resources they need to ensure that survivors can achieve justice.

Although there is clearly more to follow, given the Law Commission’s recently published consultation on taking action against intimate image-based abuse, I am very pleased that the Government have not waited but have taken heed of the arguments that I and other noble Lords have made. The tech is not waiting, and the abusers are not waiting to cause these devastating impacts. I am very pleased to commend these amendments, which I hope will secure the support of the House.

[Baroness Crawley (Lab) [V]]

My Lords, I will be brief, but as my name was on the original amendment I wanted to thank the noble Baroness, Lady Morgan, for her passion and persistence in ensuring that the Bill will now be the vehicle for finally making threats to share intimate images a criminal offence. Thanks also must go to the Government and to the Minister for really listening—not only to the campaigners and those of us who spoke in Committee but, far more importantly, to those many millions of women who have been subjected, and continue to be subjected, to this invidious behaviour.

We have heard today of how an entire town has been sent intimate images of young women from that town. This is a growing crime, as online sites grow and more young people are betrayed and humiliated. As the chair of Refuge put it, changing the law to criminalise threats to share could not come soon enough for those one in seven young women who experience this form of abuse in the UK. This will finally provide them with the recourse to justice that they deserve.

[Lord Judge (CB) [V]]

My Lords, I too acknowledge with enthusiasm and, if I may say so, admiration the dedicated energy of the noble Baroness, Lady Morgan, to resolving this issue and achieving this reform. This is a simple amendment, or will be a series of simple amendments. The clause in question addresses what everybody who has spoken in the past, whether in Committee or at Second Reading, knows is pernicious and malevolent behaviour. It should be criminalised and now it will be; good.

Importantly, if I may just digress, the achievement of this objective by recasting Section 33 of the Criminal Justice and Courts Act 2015 means that every potential victim will fall within the new protected ambit of the offence, whether or not she—it is, of course, nearly always she but sometimes may be he—forms part of any domestic arrangement or personal relationship, or none. They may be a total stranger. Behaviour like this causes distress, anxiety and offence by whomsoever and in whatever circumstances it occurs.

In the context of the debate we have just had on Amendments 46 and 47, it would apply to someone in the position of a carer. I wonder why that is strange in the context of the debate that has just happened; for the purposes of this amendment, it is not strange at all. I thank the Minister for reflecting, for accepting that there is no time to waste and for an approach which will be welcomed on all sides of the House.

I will add a footnote: like the noble Baroness, Lady Morgan, I shall hope to continue to examine the ingredients of this offence, and in particular the state of mind currently required on the basis of the new clause inserted by Amendment 48—old Section 33 of the 2015 Act—just to make sure that it satisfactorily addresses how strong an intent is required. I feel that having a positive, specific intent to cause distress is not appropriate. It certainly would not be appropriate for someone who had acquired the intimate photographs, perhaps without paying for them if they were sent through modern technology, and just decided to publish them. I think “intent to cause distress” is too strong, but that is a detail for today. We will come back to it and trouble the Minister about it, no doubt, in discussions.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I was rather surprised to discover that the Government have accepted this amendment. The disclosure of sexual photographs and films is egregious and abusive, but I am not convinced that primary legislation is the place to criminalise threats to disclose in this way. I seek clarification and reassurance from the Minister.

I am concerned about the elision between speech and action. Angry words exchanged in the height of relationship break-ups, for example, might now be taken as literal and on a par with action. Domestic abuse is not the same as domestic arguments. These arguments can be verbally vicious and intemperate on both sides. When intimate interpersonal relationships turn sour, there can be a huge amount of bitterness. Things are said and threats made in the heat of the moment. I do not understand why primary legislation should be used to criminalise these things.

Of course I understand that a threat, or a continued threat, to expose intimate images of the most personal nature can be abusive—it may not be, but it can be. However, if it is abusive, I do not understand why it is not covered by the ever-broadening definition of abuse in this Bill. If the threat was used as part of coercive control—for example, “I will publish these photos unless you do whatever”—would that not be captured by the coercive control provisions of the Bill?

The amendment notes that, for a person to be,

“charged with an offence...of threatening to disclose a private sexual photograph or film, it is not necessary for the prosecution to prove … that the photograph or film referred to in the threat exists, or … if it does exist, that it is in fact a private sexual photograph or film.”

This feels like a dystopian, post-modern removal of actual abuse into the absurd world of virtual threats, relating to non-existent artefacts and images. I do not understand why this specific form of threat needs to be in the legislation.

I will give a couple of examples of similar threats, even though they are not of images, which were definitely intended to cause distress. One person I know years ago threatened her partner that she would reveal details of some of his more dodgy tax goings-on about which she, as his wife, knew. If she had done as she had promised, and posted them on Facebook, it would have been very embarrassing. It would undoubtedly have been an incredibly distressing breach of privacy. It was being used as leverage in an alimony and custody battle, but it was just a threat.

In another instance, a husband threatened that he would show his estranged wife’s mother and her friends private letters to her then lover, and expose her secret affair. Those threats were horrible, but should they be illegal? I am just worried that such grim threats can sadly be used but then never acted on and, as such, should surely have no place in the law courts. In both examples, the threats were never acted on. One couple separated amicably in the end. The other couple reconciled and are happy to this day.

I understand the modern world, online tech issues and the images we have been discussing. But I am worried about the threats point. Should threats be elided with action in this way, or will we potentially criminalise speech? This is a dangerous, slippery slope.

Finally, I am concerned that this could give a green light to more and more offences being considered in need of official intervention, investigation and prosecution. The police could potentially become overly preoccupied and drowned out with complaints of threats, rather than focusing on pursuing the properly egregious examples of abusive actions, such as publishing the said images.

[Baroness Hodgson of Abinger (Con) [V]]

My Lords, Amendment 48 is in my name and those of my noble friends Lady Morgan and Lord Wolfson, and the noble and learned Lord, Lord Judge. I will also speak to the other amendments in this group. I congratulate my noble friend Lady Morgan on moving Amendment 48 so ably.

20:15

The strength of feeling on revenge porn and threats to share images was clear from our debates during the earlier stages of the Bill, with support coming from all sides of the House. Individual case studies referenced have demonstrated the sheer scale and devastating impact of how threats to share sexual images or videos without consent are being used as a tool of coercive control. Once again, I commend Refuge’s The Naked Threat report and the support organisations working in this space. Previously, the law did not appear clear about this, so these provisions make it possible to hold perpetrators to account.

I will be brief because others have already made the arguments, but I thank all the Ministers and their teams for being willing to listen and move on this important point. I hugely welcome the Government’s support of these new provisions and their willingness to use the Domestic Abuse Bill to make these changes.

[Lord Russell of Liverpool (CB)]

My Lords, like everybody else who has spoken, I say that this is extremely welcome. We thank the Minister for listening to so many voices. It is great that the Government have listened, although, if I were being uncharitable, I would say they have listened somewhat belatedly. I am very pleased that the Law Commission review is now under way. I reflect that it took the influence of a very influential and effective recent Cabinet Minister to persuade her own party to listen, when so many voices have been trying to get the Government to listen over quite a long period. However, thanks are due, and thanks are given.

I am concerned that we often seem to be behind the curve when it comes to so many aspects of online harm and harassment-type behaviour in general. In today’s newspaper there was mention of a YouGov survey which has just been done. Of 1,000 women, 96% of them do not and would not report incidents of harassment to the authorities. One of them pointed out that the police can act if somebody drops litter on the street but are unable to act if somebody is harassed on the street, and that does seem wrong. I think 46% of the 1,000 ladies said, when asked why they did not report harassment, that it was because they had no belief whatever that it would change anything. That is a reflection on the various authorities and organisations that are meant to help victims of harassment. If they feel like that, there is clearly something wrong.

The noble Baroness, Lady Crawley, mentioned the extraordinary small market town somewhere in the United Kingdom where no fewer than 70 women have had intimate images shared on an online forum where somebody commented that they are “traded like Pokémon cards”. What must it feel like, as a woman or a man— as a human being—to have intimate images of yourself traded like Pokémon cards? On this online forum if you have an interest in a particular town you can message people on the forum who circulate these images and ask: “Do you have anybody from this particular town or who went to this particular school?” That is really shameful; the fact it is going on shames us all.

I am pleased that we are, belatedly, in catch-up mode. But I find it excruciatingly embarrassing and unacceptable that victims are suffering in many different ways, while Her Majesty’s Government and Parliament occasionally appear to be dithering over regulation and legislating. In doing that we are letting ourselves down, but far more importantly, we are letting the victims down.

[Baroness Uddin (Non-Afl) [V]]

My Lords, it is a pleasure to follow the noble Lords who have spoken, and I am very grateful to the noble Baroness, Lady Morgan, and, of course, the Government, for accepting these necessary amendments.

At the outset, I also record my thanks to Dr Ann Olivarius of McAllister Olivarius, a very eminent lawyer who, about a decade ago, began her campaign against so-called revenge porn. Her outstanding work, both here and in the US, has definitely made a very significant contribution to the fact that we have had legislation for the last five years and it is a criminal offence to share sexual images without consent.

I welcome this amendment to extend the offence of disclosing

“private sexual photographs and films with intent to cause distress”

to an individual who appears in the photograph or film— known as a “revenge porn” offence—so as to include “threats to disclose”. One in 14 adults has experienced threats to share intimate images or films of themselves. Young women aged 18-34 are disproportionately impacted by this form of abuse, with one in seven reporting that she has experienced such threats.

Like other noble Lords, I commend Refuge’s The Naked Threat research, which found that the vast majority—72%—of threats experienced by women were made by partners or ex-partners, making it a clear domestic abuse or domestic violence issue. Therefore, the Domestic Abuse Bill is not only the right legislative vehicle for what is clearly a crime related to domestic violence or abuse but a piece of legislation that would allow the Government to make these required changes imminently. As such, I am very grateful for that.

Some 83% of women threatened by their current or former partners experience other forms of abuse alongside these threats. One in 10 women threatened by a current or former partner felt suicidal as a result of the threats, and 83% said that the threats damaged their mental health or emotional well-being. More than one in seven of these women felt a continuous risk of physical violence because of these threats. Only one in three women felt empowered to report this behaviour to the police, and, of those women, less than 14% said that they had received a good response. I am also deeply concerned about the lack of reports coming from black and other minority women.

As I have said previously in this Chamber, perpetrators of domestic abuse are increasingly using technology and the internet to control and abuse their partners and ex-partners. Threats to share images are used to control, coerce and abuse when they are in a relationship, and, after they have separated, this form of abuse is disproportionately perpetrated against younger women. Survivors of this form of abuse lack the vital legal protection that they need, with the police often telling survivors—or making them believe—that they cannot take any action until the abuser has shared the images, leaving survivors in fear and enabling perpetrators to use these threats to control them.

Like the noble Baroness, Lady Morgan, I thank Refuge, the Equality and Human Rights Commission and Barnardo’s, among others, which recommend making threats to share intimate images a crime, and extending the offence of controlling and coercive behaviour in an intimate family relationship to remove the cohabitation requirement. This is most welcome; it would therefore cover post-separation abuse, which would protect 4.4 million adults who have experienced this form of abuse.

Young people are the group most likely to be in an abusive relationship. A survey of 13 to 17 year-olds found that 25% of girls and 18% of boys reported having experienced some form of physical violence from an intimate partner. However, the Children’s Society found that 77%—a majority—of local authorities that responded to its FoI request do not have a policy or protocol in place for responding to under-16s who experience teenage relationship abuse, with just 39% of local authorities providing specialist support services for under-16s and 26% of local authorities providing no specialist support for this age group. Tragically, 500 children—mostly teenagers, but some as young as eight years old—were victims of image-based abuse.

The UK Safer Internet Centre is a partnership of three leading charities, including the Internet Watch Foundation. It reported an increase in the number of young people trying to view sexual abuse materials online, and that in just one month of lockdown its analysts blocked 8.8 million attempts by UK users to access such images and videos. We continue to see a rise in the number of children being groomed online into producing self-generated indecent images. I shudder to think of the underreporting, particularly among young people from black and minority-ethnic communities.

Can the noble Lord say what action the Government are considering to influence, inform and educate children and, more widely, the general population? What research, if any, have the Government undertaken into the impact of online abuse of women and intersectional online abuse of women from black and minority communities?

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

My Lords, this is such a sensible addition to Section 33 of the Criminal Justice and Courts Act 2015. It is excellent news that the Government have now accepted it.

I was interested to hear the argument of the noble Baroness, Lady Fox, about whether threats of any sort should be criminalised. That may be an argument for another time, looking at other threats, but I have no doubt that threats in the context of Section 33 are entirely appropriate and should be criminalised.

However, I share the view of the noble and learned Lord, Lord Judge, about the phrase “with intent to cause distress”. Before this particular clause becomes law, it would be helpful to look at whether that should, in fact, be adjusted.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I will be brief. I would like to congratulate everybody who brought us to this successful outcome, including the Government. It is staggering to count how many times we have all congratulated the Government this evening. It is a rare event and one to be enjoyed while it lasts.

I would just like to say that the law alone is never enough to protect victims and achieve justice. As the noble Baroness, Lady Uddin, pointed out, we need training for everybody, but in particular for police officers, and to some extent lawyers, to make sure they are able to sensitively and effectively bring perpetrators to justice. I have argued strongly for anti-domestic violence training for police officers, and this is part of it. Threatening to leak nude photos can be a crime, and I am happy that this amendment will be put into the Bill.

20:30

[Lord Paddick (LD) [V]]

My Lords, I start by addressing directly the comments of the noble Baroness, Lady Fox of Buckley. I have spoken before about the abusive relationship that I was in 20 years ago. What I have not talked about is the intimate video that my then partner recorded and subsequently kept in his father’s safe in France. People may question why anyone would allow such a video to be recorded, but in a coercive and controlling relationship, compliance is rewarded and defiance is punished. When what you most want is the love of your partner, and you know that not doing what he wants could result in alienation, abuse or physical violence, you acquiesce to things that you would not normally participate in.

I lost count of the number of times he threatened that, if he I left him, he would make the video public. It was not until I went on a residential training course beyond his immediate control and started talking to a female colleague that I realised how unhealthy the relationship was and how unacceptable his behaviour was. I resolved to end it. When I told him the relationship was over, after the initial fear from his threats to kill me, followed by the relief I felt when he finally removed his belongings from my home, the dread that he would deliver on his promise to release the intimate video became even more intense. That is why this amendment is needed.

As the noble Baroness, Lady Morgan of Cotes, and the noble and learned Lord, Lord Judge, have said, revenge may also be a motivation and further reform may be necessary. I am grateful to the noble Baroness, Lady Morgan, for raising the issue of threatening to disclose private sexual photographs and films with an intent to cause distress, and to the noble Lord, Lord Wolfson of Tredegar, for accepting her amendments. Threatening to disclose such material can be used as a means of coercive control both during a relationship and after it has ended, so we on these Benches support these important changes.

[Baroness Wilcox of Newport (Lab) [V]]

My Lords, I must begin by applauding the frankness and honesty of the noble Lord, Lord Paddick, in his speech. It is truly humbling to hear him speak so bravely about his own former coercive partner.

In bringing this much-needed amendment to the House, the noble Baroness, Lady Morgan, has recognised the changes that have occurred in society since the widespread introduction of mobile phone technologies and social media coverage. It has changed irreversibly the way in which we communicate, and the inherent dangers of the misuse of that communication have become increasingly prevalent. I warmly support her tenacity in getting the amendment through the process. Clearly, her colleagues and former colleagues in Government have listened and acted on her arguments. It will make a difference.

As a former teacher of media studies, I had no idea, just five years ago, when I was last in the classroom, how exploitative or dangerous the medium would become. The threat to share intimate or sexual images and films is an increasingly common tool of coercive control, which can have enormous negative impacts on survivors of abuse. While the sharing of intimate and sexual images without consent is a crime, threats to share are not, leaving survivors of this form of abuse without the protection of the criminal law.

During my reading for this topic, I was powerfully moved by a key report, Shattering Lives and Myths, written by Professor Clare McGlynn and others at Durham Law School, which was launched in 2019 at the Supreme Court. It sets out the appalling consequences for victims of intimate images being posted on the internet without consent.

Threats to share these images play on fear and shame and can be particularly dangerous where there may be multiple perpetrators or where so-called honour-based abuse is a factor. The advent of new technologies enables perpetrators to make these threats even where such images do not exist. But there is no clear criminal sanction for this behaviour. Lack of support leaves victims and survivors isolated, often attempting to navigate alone an unfamiliar, complex and shifting terrain of legal provisions and online regulation. The Domestic Abuse Bill is the most appropriate vehicle to make this change. Victims and survivors would benefit almost immediately and it would help them prevent further abuse and get away from their perpetrator. This amendment will close that gap in the law.

[Lord Wolfson of Tredegar (Con)]

My Lords, my noble friend Lady Morgan is to be congratulated on bringing forward these amendments. As she has explained, the amendments seek to extend the scope of the offence at Section 33 of the Criminal Justice and Courts Act 2015, commonly known as the revenge porn offence, additionally to criminalise threats to disclose such images. Importantly, in any prosecution there is no need to prove the images exist at the time of the threat.

I reiterate that the Government consider that the revenge porn offence has worked well to date. There have been over 900 convictions for the offence since its commencement in April 2015. I am pleased to see that the creation of this offence has offered victims protection under the criminal law from the deeply distressing behaviour of sharing private intimate images.

I am very grateful for the discussions that I have had with the sponsors of the amendment in addition to my friend Lady Morgan: my noble friend Lady Hodgson of Abinger and the noble and learned Lord, Lord Judge. I have been happy to add my name on behalf of the Government to the amendment.

However, we cannot rest on our laurels. We must be alert, as the noble Lord, Lord Russell of Liverpool, said, to changes in technology, including the misuse of social media and the opportunities to abuse and distress others that such developments can bring. While we have a range of criminal offences that in many instances can deal with those who threaten to share intimate material with others, it is vital that we ensure that the criminal law remains fully equipped to deal with any new problems in this constantly developing area.

It was with this in mind that the Government asked the Law Commission to review the law in this area. That review has considered the existing offences relating to the non-consensual taking and sharing of intimate images to identify whether there are any gaps in the scope of protection already offered to victims. Noble Lords will be pleased to note that on 27 February the Law Commission published the consultation paper on the review. The consultation ends on 27 May and I encourage noble Lords to consider contributing to that public engagement, as my noble friend Lady Morgan of Cotes said.

The consultation paper puts forward a number of proposals for public discussion, including the need to address those who threaten to disclose intimate images. I look forward to the Law Commission’s full proposals in this area once its final recommendations are published later this year. I agree with the noble Lord, Lord Russell of Liverpool, that the law must keep pace with technological developments. I would not say that we are behind the curve but I think that it is fair to say that the curve itself is constantly moving. While it would be wrong of me to pre-empt the consultation and the Law Commission’s eventual findings, I think the fact that the commission has acknowledged that threats to disclose intimate images should be further considered adds strength to the calls to extend the revenge porn offence, as provided for in Amendment 48.

We have listened to the passionate calls for change from victims. They have bravely shared their distressing, and sometimes life-changing, experiences of suffering at the hands of those who would manipulate and torment them with threats to share their most personal and intimate images. That point was made during this short debate by the noble Baronesses, Lady Crawley and Lady Uddin, and in particularly moving terms by the noble Lord, Lord Paddick. Since I have just mentioned the noble Baroness, Lady Uddin, I remind her that sex and relationship education is part of the national curriculum.

We have also taken note of the views of campaigners and fellow parliamentarians. I remember the strength of feeling in this House in Committee, when my noble friend and others proposed a similar amendment to the one now before us. We have reflected on those calls and that debate and we are happy to support these amendments, which will extend the parameters of the Section 33 offence to capture the threat of disclosure.

As was noted by the noble and learned Lord, Lord Judge, and the noble and learned Baroness, Lady Butler-Sloss, Amendment 48 stays as close as possible to the provisions and drafting of the existing Section 33 offence, rather than making any broader changes to the law in this area. I suggest that that is the right approach given the Law Commission’s ongoing work. I assure the noble and learned Lord and the noble and learned Baroness that the Law Commission is specifically considering the intent issue as part of its work. I am grateful that the amendment also has the support of the noble Baronesses, Lady Jones of Moulsecoomb and Lady Wilcox of Newport.

I should say something in response to the speech made by the noble Baroness, Lady Fox of Buckley. This is nothing to do with criminalising speech and we are not dealing with just domestic abuse here. This is a broad offence that applies throughout criminal law; it does not apply just in the context of domestic abuse. While I agree that other criminal law offences, such as blackmail and harassment, can be applicable in this area—a point I made in Committee—the Government have been persuaded that it is right and appropriate to have this specific offence in this area of the law.

For those reasons, I believe that this reform will create a clear and consistent enforcement regime for both threats and actual disclosures, thereby providing greater protection to those who may have had to endure such intrusive and distressing behaviour. It has been a pleasure to be able to add my name to these amendments, and I join my noble friend in commending them to the House.

[Baroness Morgan of Cotes (Con) [V]]

My Lords, I thank all noble Lords who spoke in the debate on these amendments. As we heard the noble Lord, Lord Russell, put so eloquently, victims are suffering. I am pleased that the Government have decided that they do not have to wait until the conclusion of the Law Commission process.

Like other noble Lords, I pay particular tribute to the noble Lord, Lord Paddick, for being so brave and clear about his own personal experiences of these issues, which will be outlawed by my amendment. I thank him for sharing his experiences with the House.

Like the Minister, I took careful note of what was said by the noble and learned Lord, Lord Judge, and the noble and learned Baroness, Lady Butler-Sloss. They pointed out that this is not the end of the matter, of course, and that the use of “intent” will be looked at during the course of the Law Commission consultation.

For those who remain in any doubt, I want to share just one of the stories that I heard about. It relates to Rachel, a lady who was physically abused by her partner. After her partner had been arrested and released by the police because of the physical abuse, he threatened to disclose the many images he held on his phone to Rachel’s family and friends unless she went back to the police to change her evidence about the level of physical abuse that she had suffered. She did so and he thought that he had gotten away with it until, sadly, the abuse continued to escalate; at that point, Rachel decided that she had to get out of the family home with her children. I am pleased to say that she is now in a much more positive and better place, but the fact that victims are changing their behaviour and evidence, allowing perpetrators access to their families and returning to them, shows, in addition to the mental suffering, the very real toll that the threat of showing these images has on their lives. It just shows the very real effect that these victims suffer.

I thank the Minister for adding his name to my amendment and I thank his officials in the Bill team, who worked so hard on drafting this amendment and the consequential ones. I am grateful to them and to him for allowing me to move this amendment, and I take great pleasure in moving Amendment 48.

Amendment 48 agreed.

20:45

Amendment 49

Moved by

[Baroness Newlove]

49: Before Clause 65, insert the following new Clause—
“Strangulation or suffocation
(1) In Part 5 of the Serious Crime Act 2015 (protection of children and others), after section 75 insert—“Strangulation or suffocation75A Strangulation or suffocation(1) A person (“A”) commits an offence if—(a) A intentionally strangles another person (“B”), or(b) A does any other act to B that—(i) affects B’s ability to breathe, and(ii) constitutes battery of B.(2) It is a defence to an offence under this section for A to show that B consented to the strangulation or other act.(3) But subsection (2) does not apply if—(a) B suffers serious harm as a result of the strangulation or other act, and(b) A either—(i) intended to cause B serious harm, or(ii) was reckless as to whether B would suffer serious harm.(4) A is to be taken to have shown the fact mentioned in subsection (2) if—(a) sufficient evidence of the fact is adduced to raise an issue with respect to it, and(b) the contrary is not proved beyond reasonable doubt.(5) A person guilty of an offence under this section is liable—(a) on summary conviction—(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the coming into force of paragraph 24(2) of Schedule 22 to the Sentencing Act 2020), or(ii) to a fine,or both;(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine, or both. (6) In this section “serious harm” means—(a) grievous bodily harm, within the meaning of section 18 of the Offences Against the Person Act 1861,(b) wounding, within the meaning of that section, or(c) actual bodily harm, within the meaning of section 47 of that Act.75B Offences under section 75A committed outside the United Kingdom(1) If—(a) a person does an act in a country outside the United Kingdom,(b) the act, if done in England and Wales, would constitute an offence under section 75A, and(c) the person is a United Kingdom national or is habitually resident in England and Wales,the person is guilty in England and Wales of that offence.(2) In this section—“country” includes territory;“United Kingdom national” means an individual who is—(a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,(b) a person who under the British Nationality Act 1981 is a British subject, or(c) a British protected person within the meaning of that Act.”(2) Schedule (Strangulation or suffocation: consequential amendments) contains consequential amendments.”Member’s explanatory statement
This amendment provides that it is an offence for a person to strangle another person, or to commit any other kind of battery against a person that affects the person’s ability to breathe (such as covering the person’s mouth or nose or sitting on the person’s chest). The maximum penalty for the offence is 5 years’ imprisonment.

Amendment 49 agreed.

[The Deputy Speaker (Baroness Barker) (LD)]

We now come to the group beginning with Amendment 50. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Amendment 50

Moved by

[Baroness Kennedy of The Shaws]

50: After Clause 68, insert the following new Clause—
“Reasonable force in domestic abuse cases
(1) Section 76 of the Criminal Justice and Immigration Act 2008 (reasonable force for purposes of self-defence etc.) is amended as follows.(2) In subsection (5A) after “In a householder case” insert “or a domestic abuse case”.(3) In subsection (6) after “In a case other than a householder case” insert “or a domestic abuse case”.(4) After subsection (8F) insert—“(8G) For the purposes of this section “a domestic abuse case” is a case where—(a) the defence concerned is the common law defence of self-defence,(b) D is, or has been, a victim of domestic abuse, and(c) the force concerned is force used by D against the person who has perpetrated the abusive behaviour referred to in paragraph (b). (8H) Subsection (8G)(b) will only be established if the behaviour concerned is, or is part of, a history of conduct which constitutes domestic abuse as defined in sections 1 and 2 of the Domestic Abuse Act 2021, including but not limited to conduct which constitutes the offence of controlling or coercive behaviour in an intimate or family relationship as defined in section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship).”(5) In subsection (9) after “householder cases” insert “and domestic abuse cases”.”Member’s explanatory statement
This Clause seeks to clarify the degree of force which is reasonable under the common law of self-defence where the defendant is a survivor of domestic abuse alleged to have used force against their abuser.

[Baroness Kennedy of The Shaws (Lab) [V]]

It is a great privilege to take part in this debate and to hear the voices of so many people with expertise in this field —sometimes direct experience—speaking with wisdom and compassion about why the law had to change.

I remind noble Lords that not so very long ago there used to be a way of referring to domestic abuse as “a domestic”, as though it were lesser than ordinary crime. It has been a long and hard struggle to have the law shift and change, for the agenda and context to change and for our political and legal classes to understand the full import of domestic violence and the toll it takes on our lives and the whole of society. That is why it has been so uplifting to listen to this debate over the last few weeks. I will move for two new statutory defences to be included in the Bill and give notice that I intend to divide the House.

In 2017, the Home Office Minister for Crime, Safeguarding and Vulnerability said there needed to be a root and branch review of how women are treated in the criminal justice system when they themselves are victims of abuse. Unfortunately, criminal law still fails to protect those whose experience of abuse drives them to offend. I strongly urge this House that there cannot be two classes of victim: those who somehow win our compassion and for whom we are desirous of a much fairer system and those who somehow fall outside that kind of protection.

We know that the law has failed women in many different areas for many years, and that one of the reasons why has been the absence of women in lawmaking—in the senior judiciary and in Parliaments. Happily, we have seen that changing in our society over recent decades, but there is still work to be done. I am attempting in these amendments, supported by colleagues around the House, to fill a really important gap—for those who perhaps have least voice because they end up in prison.

These amendments are supported by virtually every organisation involved—I do not know any organisation involved in domestic abuse that is not supporting this change. Once you really know about abuse and its ultimate potential consequences, which can often be the death of a woman or a victim of abuse, you know that sometimes the person on the receiving end can take no more and, out of despair and desperation, inflicts violence. We have to understand the context, and what has often been missing in the courts was a full understanding of domestic violence and the context. I know that, even in this House, we learn from each other and from each other’s experience, directly and indirectly, about what is involved and what the long-term impact of domestic abuse can be. It has been in only recent times, for example, that forms of abuse other than violence have been shown to have long-term consequences that can be so damaging to someone’s mental health. That learning has, in turn, to be fed into the law.

The organisations supporting these amendments include Women’s Aid, Rights of Women, Refuge, the Criminal Bar Association and the Centre for Women’s Justice, which has been a very important part of the research-gathering for these amendments. One of the pieces of work has come out of a report recently published by the Centre for Women’s Justice, Women Who Kill: How the State Criminalises Women We Might Otherwise Be Burying. The Victims’ Commissioner supports these changes. The domestic abuse commissioner- designate supports these amendments. Unfortunately, at the moment, the Government do not. Is this about not wanting to be seen in any way to support persons who might be accused of crime, rather than seeing that you are really supporting victims?

The first of the amendments, Amendment 50, has a new statutory defence relating to self-defence and the reasonableness test that applies to it. This amendment would afford justice to women who, after long-term abuse, are unable to avail themselves of self-defence when they are accused of harming their abuser, using force against their abuser or, indeed, killing their abuser. Why does self-defence not work in these circumstances? The reason is that the force used in self-defence must be reasonable, but because of their experience of relentless abuse and their physical disadvantage, women often reach for a weapon. As a result, their action is often deemed disproportionate because, in examining whether something is reasonable, which is an objective test, the question is asked, “Is it proportionate to what was happening to her at the time?”

Of course, it might not seem proportionate if a woman runs to the kitchen drawer, or reaches to the kitchen counter, and picks up a knife, or, as Sally Challen did, reaches for a hammer and causes a fatal blow to her controlling, abusive husband. I even represented a woman who took a rolling pin and hit her husband, causing an injury to his skull that ended in his loss of life. But he had abused her over years and years, and she could not take any more. So, we have to look at the ways in which we can contextualise this form of abuse, and look at why self-defence does not work for women. The research conducted in the report by the Centre for Women’s Justice really lays it out very clearly.

I just raise the comparison that I put before the House originally, when I spoke at Second Reading and then in Committee. I pointed out that there had already been a departure from the normal rules when dealing with a householder. The Government’s response then was to distinguish a householder’s fear if someone trespassed on to their property—an Englishman’s home is his castle—as, not knowing who they may be, they may take a weapon from a drawer and use it fatally, from the position of a victim of domestic violence taking a weapon in her hand.

I suggest that the point was ill made, because no one is suggesting a parallel. A departure has been made from the normal rules, which were made with a different perception in mind, by men of law who had not imagined the circumstances of domestic violence, the long-term abuse, the toll that it takes and the psychological impact it has on someone—the rising fear, the reading of a situation, the complexity referred to by the Minister and the dynamic that is created in these relationships. The point that I was making was that a departure has been made for the circumstances of the householder. If we are prepared to make it there, why are we so reluctant to make it here, particularly when it is going to be made use of by women—rare as these cases are—defending themselves against someone?

We heard today of the Government’s change of heart in their concession that non-fatal strangulation should become a crime, properly recognised by the courts at the right level. I have not worked on a single homicide where such a strangulation has not put people in fear that, one day, it will extinguish their life. That has been part of the histories that they have given to the court about the way in which they have been treated over the years.

The concern here is that self-defence is not working in these cases. The amendment seeks to introduce the test that was introduced for the householder, which is that, instead of being reasonable and proportionate, it would have to be grossly disproportionate to lose the right to draw down self-defence as a rationale or defence for conduct and for seeking an acquittal. For most of these women, because they face a conviction of murder if they fail, those acting for them persuade them to plead guilty of manslaughter. They are driven down another road that will lead to a conviction, but that is not the justice of the situation. They plead guilty to manslaughter, are convicted and end up in prison. That conviction will have consequences for their lives—employment and so much else—when they have been at the receiving end of abuse. That is quite wrong. It is in the hands of the Government to make a difference and I call upon them to reconsider their position.

I turn now to an interesting piece of academic work that was written under the names of Sheehy, Stubbs and Tolmie in 2012. It is about defences against homicide from battered women, as a comparative analysis of laws in Australia, Canada and New Zealand. This House can be persuaded by research from elsewhere, if changes have been made in other common law jurisdictions. It would be good for us to take a lead. When Theresa May introduced this legislation, she spoke of the United Kingdom leading the world in making changes to law that would bring proper justice to anybody facing domestic abuse, particularly women. Seeing whether others have made those changes first is not necessary, but it is helpful to look at research.

21:00

The research by Sheehy, Stubbs and Tolmie shows that the same problems exist in other jurisdictions. In Canada, they have tried to find ways of dealing with this by contextualising. Self-defence would be measured as having to be grossly disproportionate only if the nexus was with a context of domestic abuse. They then talk about how tweaking away at other parts of it have not been successful.

Self-defence is still a problem in these three jurisdictions. They point out that the guilty pleas women end up tendering to lesser charges of manslaughter because they cannot invoke self-defence mean that they risk compromising their innocence. They deny themselves the acquittal they would be deserving of if the law were fairer. That is the reason for Amendment 50.

Amendment 51 draws on a similar experience of women not being able to use the law because it was manmade. It did not ever contemplate the circumstances in the lives of women coerced and compelled into acts they are not consenting to in the ordinary way because of the ways they have to live with partners. I was taken with what the noble Lord, Lord Paddick, just said about compliance being rewarded and defiance being punished—that toxic way of having to live with an abusive partner, where you are having to please and do things to prevent abusive conduct.

Amendment 51 is the second statutory defence we are seeking to introduce. This provides a defence where a person is compelled to commit a crime because they live in a situation of domestic abuse. They live in fear, under the control of their abusive partner and there is a history of domestic abuse. There has to be the nexus with domestic abuse. It is not about everybody being able to make the claim; there would have to be that history. There would have to be evidence of abuse and of being compelled to commit the crime.

It happens and the circumstances will be familiar to people who have dealings with the courts: where women who are abused and under the control of their partner are forced to store stolen goods, hide guns or drugs and end up before the courts. They end up losing their liberty and are separated from their children. It is a horrible cycle: their children are taken into care; if they live in council accommodation, they lose their accommodation and the destruction becomes intergenerational. We really have to examine this to see whether we can find a fairer and more just way of doing things.

The general principle of criminal law is that those who chose to break the law are held responsible for their crime, and so it should be. But this amendment would create an exception. The exception is on the grounds that the choice is not being made voluntarily. It is not going to apply in every case, but it will in cases where there is clear evidence of coercion, a fear of violence or being killed by a partner and a sense of powerlessness, which we know is the experience of those subject to serious domestic abuse.

It is not one size fits all, which was a concern expressed by the noble Baroness, Lady Fox of Buckley. This is very much about looking at the evidence in a particular case and creating a nexus between the history of abuse and the compelling of someone to commit a crime. The question will arise: what is wrong with duress? Is duress not a defence in law? I should say that duress rarely avails itself to any defendant because it sets such a high bar. It is particularly hard for women who have been abused. Again, the tests are unsuitable for this situation because, of course, they turn on questions such as, “Was the threat such that it would overbear the will of an ordinary person?” There is also what used to be called the reasonable man test, although we now call it the reasonable person test, as though that cancels out the problems. However, it does not do that because you have to weave in aspects of the woman’s experience. The threat must be of death or of serious harm. The question is asked, “Did he actually say that he was going to kill you if you did not hide his gun?” But he does not have to say the words because she will know that that threat was persistent while they were living together.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am sorry to interrupt the noble Baroness. I appreciate that she has three amendments to introduce—

[Baroness Kennedy of The Shaws (Lab) [V]]

The third one does not count.

[Lord Parkinson of Whitley Bay (Con)]

She has taken 20 minutes to do so already and the House is keen to debate the amendments she is putting forward. If she could do so briefly, it will give noble Lords the opportunity to do just that.

[Baroness Kennedy of The Shaws (Lab) [V]]

I feel that that was unnecessary, but I was coming to my conclusion anyway. There must be a causal link between the threat and the decision of the defendant to break the law, and that is a high bar. I strongly urge the House to support this new statutory defence for women who are compelled to commit crimes so that they can put it before the court where it can be tested and measured evidentially. If it passes the test, she can be acquitted.

Amendment 66 is a list of the offences to which this would not apply because of their gravity. I hope that the Crown does not think that there are two kinds of victims: those who are somehow deserving and those who are undeserving. The end of the road is when women are forced to do things that take them into the criminal ambit because of a history of abuse. I beg to move.

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

My Lords, we have heard a passionate and erudite speech by the noble Baroness, Lady Kennedy of The Shaws. I have attached my name to her Amendment 51 principally because I was struck by the similarity, which is mentioned in the explanatory statement, to what is set out in the Modern Slavery Act 2015, where someone cannot be found guilty of committing a criminal act if they have been subjected to the coercion of modern slavery. I can see the same parallel between that and the domestic abuse situation which has been put so well by the noble Baroness. I therefore say, in the interests of brevity, that the noble Baroness has said it all and I shall support her, certainly on Amendment 51, if she puts it to a vote.

[Baroness Hamwee (LD) [V]]

My Lords, I am glad that the noble Baroness is intent on pursuing these two amendments, to which I have added my name. She mentioned a report published recently by the Centre for Women’s Justice. The report mentioned that a defendant must be prepared, which I think means in both senses of the term, to disclose in court in the presence of the deceased’s family, how he—it is usually he—had treated her; it is usually her. I would add to that the further difficulty of disclosing the behaviour in the relationship in front of one’s own family. Shame is another component of what we have been discussing, however misplaced it is.

I mention this because I want to use this opportunity to ask the Minister about the MoJ’s review of the issues raised in this debate. I heard the Secretary of State for Justice being interviewed yesterday about the sentencing Bill which has just been introduced in the Commons. He talked about the views of a victim’s family. He referred to the victims’ commissioner, having talked to her about the disproportionately high sentences imposed because the weaker partner, as has been referred to, had to arm herself because she could not defend herself with her bare hands against a stronger person. Can the Minister tell us more? There is clearly a relationship between this and what we are discussing in the context of these amendments. Amendment 50 is not about sentencing but about culpability, and if there should be a review, we should not delay.

During the Bill’s passage, I have been struck by how fast our understanding of domestic abuse has been developing. The noble Baroness, Lady Kennedy, referred to this. In Committee, the right reverend Prelate said that she is a passionate defender of trauma-informed interventions. I am with her there. Would we have heard that 10 years ago? Perhaps 10 years ago, because that was post Corston, but it would have been quite rare in the sort of debate that we are having now, not in specialised circles and among professionals, but in this sort of debate.

Reading the report that I have just referred to, I was struck by the observation that often abuse is disclosed very late, sometimes after conviction, especially when abuse has taken the form of coercive control. The noble Baroness, Lady Kennedy, explained in Committee that this was the form of abuse in all the cases that she had been involved in. So much of our debate has touched on, if not centred on, training. I refer to this here because it is a shorthand way of referring to a thorough understanding of the subject, or as thorough as it can be, while understanding of the whole issue continues to develop.

In Committee, the Minister, when arguing for the status quo, said that it is important to ensure that wherever possible, people do not resort to criminal behaviour—well, indeed. The amendment proposed is quite limited. To quote from the 2008 Act as amended for the householder cases,

“the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.”

He also argued, as, he said, an “enthusiastic” fan of the common law, that

“the courts are quicker, more nuanced and more flexible in developing the common law”.—[Official Report, 3/2/21; col. 2285.]

They are not quick, nuanced, and flexible enough, or we would not be having this debate. I do not know the genesis of the 2008 Act but clearly it was thought then that it was necessary to produce legislation on reasonable force for the purposes of self-defence, and then of course we had the householder defence. I hope that as an equally enthusiastic parliamentarian—the enthusiasms are not mutually exclusive—the Minister takes the view that there are occasions when Parliament should lead the way.

21:15

I find it difficult to accept, and indeed I cannot accept, that there can be a householder defence—“the Englishman’s home is his castle”, which some called for—but not an equivalent defence in the extreme cases dealt with by Amendment 50.

I have also added my name to Amendment 51. In Committee, I referred to the Modern Slavery Act, which the noble Lord, Lord Randall, mentioned, and I do not want to repeat that. But I came across a briefing from the Prison Reform Trust that included a paper from the Criminal Bar Association, written in 2017. It addressed the potential application of duress to domestic abuse and coercion. It quoted the noble and learned Baroness, Lady Hale, in the 2005 case of Hasan—as usual, she was in the vanguard—and I cannot do better than to quote her. Although it was obiter, what she said was very clear and relevant:

“I have no difficulties envisaging circumstances in which a person may be coerced to act unlawfully. The battered wife”—

we have moved on from that sort of terminology, but this was in 2005—

“knows very well that she may be compelled to cook the dinner, wash the dishes, iron the shirts and submit to sexual intercourse. That should not deprive her of the defence of duress if she is obliged by the same threats to herself or her children to commit perjury or shoplift food … It is one thing to deny the defence (of duress) to people who choose to become members of illegal organizations, join criminal gangs, or engage with others in drug related criminality. It is another thing to deny it to someone who has quite a different reason for becoming associated with the duressor and then finds it difficult to escape. I do not believe that this limitation on the defence is aimed at battered wives at all, or at others in close personal or family relationships with their duressors and their associates, such as their mothers, brothers and sisters.”

These are important amendments, and we support them enthusiastically.

[The Lord Bishop of Gloucester [V]]

My Lords, I spoke in support of Amendments 50 and 66 in Committee and have added my name to them again. I remind noble Lords of my interests as listed in the register. As ever, I am grateful to the noble Baroness, Lady Kennedy, for setting out the amendments so clearly and with such expertise. It is also a privilege to follow the noble Baroness, Lady Hamwee, and I echo all that she has said.

I speak not as a lawyer but as the Anglican Bishop for prisons and a long-time advocate for women in the criminal justice system. There is still a great need for reform. In recent years, it has been recognised that we need to rethink how women in the criminal justice system are treated and their paths straightened. With the Female Offender Strategy, the Government seem to have conceded to a more nuanced approach but we are still waiting for it to be fully implemented.

Here is an opportunity for the Government to recognise that far too many women in prison or under supervision in the community are survivors of domestic abuse and that that unimaginable experience has driven them to offend. If we are convinced of the need to protect all survivors of domestic abuse then we have a moral obligation to dig deeper and extend that protection to all those, mainly women, who have offended while being coerced or controlled by an abusive partner, as we have heard. The experiences of those who retaliate against abusive partners in self-defence or after years of horrific abuse must be taken into account. Protection must be afforded to those who are compelled to offend as part of, or as a direct result of, their experience of abuse.

There are many outstanding organisations that support vulnerable women in the criminal justice system, not least women’s centres such as the one run by Nelson Trust in Gloucester or Anawim in Birmingham. They, along with others, have numerous stories to tell of how domestic abuse has driven someone to use force against their abuser. I am a big advocate of community-based support, which, as we have heard, offers a holistic, trauma-informed response to these women. I am glad about the development of much-needed, police-led diversion work, and that judges and magistrates have been given the resources and information to sentence women appropriately.

However, this legislation is also required here. As I said in Committee, we are not talking in the abstract. The decisions we make have a real and lasting impact on people’s lives. The most vulnerable, with limited life choices, deserve our attention and voice. However, if the compassionate argument is not strong enough and finance is your only focus, it makes no sense to spend nearly £50,000 a year to lock someone in prison when about £5,000 a year would enable a women’s centre, with professional expertise, to support, holistically in the community, someone who has been diverted from the criminal justice process, in recognition that their alleged offending was the direct result of their experience of abuse—and where their prosecution would not be in the public interest. This legislation will enable that to happen.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I agree with every word that we have heard so far, and I have signed all three of these amendments—I think that they are superb and have been carefully and expertly drafted. It is deeply unfortunate that the Government have not adopted them as part of their unusually co-operative approach in this Bill.

The need is very clear: the deeply sad Sally Challen case was only one proof point of the lack of legal protection available for survivors of domestic abuse. Women get a terrible deal in the criminal justice system. Most are there for non-violent offences, and many are there for really minor things like not paying their TV licence. However, sometimes, violence does happen, and, where that is related to domestic abuse, there needs to be a sufficient legal defence to recognise the reduced culpability.

It is obvious that judges and, sometimes, lawyers do not understand coercive control and other abuses. The excellent report from the Centre for Women’s Justice, which the noble Baroness, Lady Kennedy of The Shaws, referred to, is called Women Who Kill—I will give a copy of the executive summary to the Minister afterwards to make sure that he reads it. It lays out the response of the criminal justice system to women who kill abusive partners and the way the law itself, and the way it is applied, prevent women from accessing justice.

Women who have been abused by the man they kill are unlikely to be acquitted on the basis of self-defence. Of the 92 cases included in the research for the report, 40—that is 43%—were convicted of murder. Some 42—that is 46%—were convicted of manslaughter, and just six, which is only 7%, were acquitted. The use of weapons is an aggravating factor in determining the sentence, and the report found that, in 73 cases—that is 79%—the women used a weapon to kill their partner. This is fairly unsurprising, given women’s relative size and physical strength and their knowledge of their partner’s capacity to be violent.

However, as other noble Lords have pointed out, this contrasts with the legal leeway given to householders if they kill or injure a burglar. Therefore, we need legislative reform to extend provisions of householder defence to women who use force against their abuser. It is discriminatory to have a defence available to householders defending themselves but not to women in abusive relationships defending themselves against someone who they know can be dangerous and violent towards them.

In the week that Sarah Everard was abducted and, we suppose, killed—because remains have been found in a woodland in Kent—I argue that, at the next opportunity for any Bill that is appropriate, I might put in an amendment to create a curfew for men on the streets after 6 pm. I feel this would make women a lot safer, and discrimination of all kinds would be lessened.

However, once convicted, women’s chances of successful appeal are extremely slim. Society’s understanding of domestic abuse has come such a long way, even in the last few years, yet a jury is forced to apply outdated ideas of self-defence, such as responding to a threat of imminent harm, which have no relation to the realities of domestic abuse.

The Government have said that they are persuaded on the issue but will

“monitor the use of the existing defences and keep under review the need for any statutory changes.”

I simply do not believe that that is true. It is not appropriate for the sort of crimes that we are talking about. As such, can the Minister please tell me which Minister is charged with this review, how many civil servants are involved and when will they report?

[Lord Paddick (LD) [V]]

My Lords, my noble friend Lady Hamwee has already set out our support for all three of these amendments but I want to address the Minister’s remarks in Committee on Amendment 50.

I have seen misogyny described as the hatred of women who fail to accept the subordinate role ascribed to them by a patriarchal society, who fail to conform to the misogynist’s belief that women should be no more than compliant and decorative, whose role is to serve the needs of men. Out of such a false and outdated narrative comes the idea that physically stronger men should stand and fight while physically weaker women should run away. I am very sad to say that this appeared to be the Government’s position when we discussed these amendments in Committee.

In Committee, the Minister said correctly that what is sought is an extension to the current provisions to enable victims of domestic abuse to have the same level of protection as those acting in response to an intruder in their home. That is, the degree of force used in self-defence by the defendant would have to be grossly disproportionate rather than simply disproportionate.

The Minister suggested that judges have developed common law defences and that we should trust them to apply these to domestic abuse cases. However, the Government did not trust the judges when it came to someone acting in response to an intruder in their home, passing primary legislation to change the acceptable degree of force to include disproportionate force in such circumstances by means of Section 76 of the Criminal Justice and Immigration Act 2008.

The Minister took up the challenge I put to him to demonstrate the difference between this amendment and Section 76. He said that in the case of an intruder, the householder is put in a position where they are acting

“on instinct or in circumstances which subject them to intense stress.”—[Official Report, 3/2/21; col. 2285.]

He also noted that the amendment did not appear to deal with the defendant’s option to retreat. Section 76 makes it clear there is no duty for a householder to retreat. With the greatest respect to the Minister, I suggest that it would appear from the Government’s response that neither he nor those advising him have been the victim of domestic violence. I have, and I can tell the Minister that when you are cornered in your own home—the one place where you should feel safe—by an abusive partner who is using physical violence against you, you are subjected to intense stress and there is a distinct possibility that you will react instinctively.

As I said in Committee, in my experience, having been physically threatened by an intruder and having been physically assaulted by my then partner, the intense stress is far worse and sustained when the person you rely on for love and affection snaps and attacks you or subjects you to abuse over a prolonged time. My own experience of domestic violence is that retreat just encourages further violence. Why should a victim of domestic violence retreat but the victim of a burglary stand and fight?

As noble Lords will have gathered by now, I am not a believer in domestic abuse being defined as a gendered crime—that it is overwhelmingly male violence against women. In my case, it was the fact that my abusive partner was far stronger than me that meant he felt able to attack me. However, two-thirds of victims are women and the overwhelming majority of them will be victims of male violence. Men are, on average, physically stronger than women and abusive men may even seek out weaker women to facilitate their abuse. Women are therefore far more likely to have to resort to the use of a weapon in what would otherwise be an unequal physical contest when they are attacked by a male partner. Their use of force is therefore more likely to be considered disproportionate, albeit understandable.

21:30

We then had what appeared to be an attempt to cling to the wreckage of the Government’s failed arguments: the assertion that the amendment

“would need to be accompanied by guidance and training for the police, the CPS, the probation service, defence lawyers and the judiciary to ensure that it was applied as intended.”—[Official Report, 3/2/21; col. 2286.]

Well, I would jolly well hope so. Presumably, that is exactly what happened when the Government enacted Section 76 of the 2008 Act. If it was not a problem then, it should not be a problem now.

I have the utmost respect for the Minister and I take full account of the fact that he repeatedly prefaced his remarks in Committee with “We have been advised that”. But I suggest to him, for the reasons I have explained, that there is more of a case for this amendment than there is for Section 76 of the 2008 Act. Perhaps one of the reasons why the Government, and potentially noble Lords around the House, might disagree is that they may more easily envisage themselves in the situation of confronting an intruder than of being the victim of domestic abuse. I do not blame them for that. Personally, I never understood why battered wives went back to their abusers, until I became a victim of domestic violence myself.

I have been in both these situations: being attacked by an intruder and by a lover. From that objective position, I personally support Amendment 50 and we, as Liberal Democrats, support all the amendments in this group. I am glad that the noble Baroness, Lady Kennedy of The Shaws, has said that she will press her amendments to votes because we on these Benches will be voting with her.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 50 is proposed by my noble friend Lady Kennedy of The Shaws, along with Amendments 51 and 66. These amendments were debated in Committee and when my noble friend tests the opinion of the House at the end of this debate, the Labour Benches will support her. Today and during Committee my noble friend, and other noble Lords who have spoken, have highlighted how domestic abuse can lead to death. We all know of the terrible figures about women who die at the hands of a partner or former partner.

My noble friend’s amendment draws attention to the tragic situation where some women—the victims of the abuse—find themselves in the dock when they have in the end killed their abuser, often after years of horrific abuse and in situations where they feared they were going to be killed. The Sally Challen case is an example of where coercive control had not been fully understood by the courts; further, pleading self-defence has not been working for women. My noble friend, who has many years of experience in the criminal justice system, has told the House of truly tragic situations where women have not been treated fairly, or where the horror of the situation that they and their children found themselves in has not been properly appreciated.

These amendments seek to correct this imbalance and would, in my opinion, put the law in the right place by protecting those victims who have had to defend themselves in situations where they have feared for their life. The law should provide them with the ability to mount a defence, along with an understanding by the court of the horrors of domestic abuse and the need, when your life is in danger from an abusive partner or ex-partner, to take actions which are not grossly disproportionate to defend oneself.

As my noble friend said, a situation often plays out where a woman is taken along a route where she has to plead guilty to manslaughter and is convicted. On release from prison, such women have problems for the rest of their lives, for example with employment; they may also find that they have lost their home, or their children may be taken into care.

My noble friend also carefully explained the intent behind Amendment 51; the noble Lord, Lord Randall of Uxbridge, drew attention to his support for it. It mirrors the coercive control provisions of the Modern Slavery Act.

The noble Lord, Lord Paddick, asked a powerful question: why is it that victims of domestic abuse are meant to retreat while someone under attack from intruders in their home has greater protection? That cannot be right.

This has been a very good debate and I look forward to the Minister’s response. As I said, we on these Benches will certainly support the noble Baroness when she divides the House.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am extremely grateful to the noble Baroness, Lady Kennedy of The Shaws, for providing a full and detailed explanation of the reasons she believes that these amendments should be included in this Bill. In addition to the noble Lords who have spoken today, I am aware of the support that these proposals received last Thursday evening at the parliamentary event hosted by the noble Baroness and Jess Phillips MP on this subject. So that noble Lords do not think that only Kennedys can support other Kennedys, I join the noble Lord, Lord Kennedy of Southwark, in acknowledging and paying tribute to the noble Baroness’s work in, and experience of, this area.

The noble Baroness has put two amendments before the House; they are conceptually distinct, so I will address them in turn. Amendment 50 deals with the defence of the reasonable use of force by victims of domestic abuse who, in self-defence, react to violence from an abusive partner. Amendment 51 would create a new statutory defence for victims of domestic abuse who commit a criminal offence. The third amendment, Amendment 66, is intimately linked to and logically consequent on Amendment 51.

I turn first to the reasonable use of force and Amendment 50. Although the Government are wholly sympathetic to the plight of victims of domestic abuse, we are unpersuaded that there is a gap in the law here that needs to be filled. Nor do we feel that the circumstances of a victim of domestic abuse, who has often experienced that abuse over a prolonged period, are necessarily comparable to that of a householder who suddenly finds an intruder in their home and acts instinctively.

Let me expand on that point. Section 76 of the Criminal Justice and Immigration Act 2008 covers a specific circumstance. Its focus is on those occasions where an intruder, who is unlikely to be known to the householder, puts the householder in a position where they react instinctively as a result of intense stress. By comparison, in domestic abuse cases, the response may not be a sudden instinctual one but may follow years of physical and/or emotional abuse.

Furthermore—and this is an important point—the current law on self-defence and loss of control allows that any previous and extended history of domestic abuse be taken into account. I respectfully disagree with the point made by the noble Baroness, Lady Jones of Moulsecoomb, that the law on self-defence is, to use her word, outdated. It is not. As a result, it does not seem necessary to extend Section 76 of the 2008 Act to a wider set of circumstances as proposed by this amendment, given the defences that already exist in law.

I note too that no mention has been given in this new clause to a defendant’s option to retreat from the abuse, and I make that point with due care. I acknowledge, and am well aware, that an abused woman or man may not have that option. However, although Section 76 of the 2008 Act makes clear that there is no duty to retreat, the option to retreat remains a factor, and, where that is established on the facts of the particular case, it is a matter that will always be taken into account.

Therefore, although I warmly reciprocate the kind words that the noble Lord, Lord Paddick, said about me, and while I respect and acknowledge his personal history and experience, about which he has spoken extremely movingly on a number of occasions, I know that he will not like what I am going to say. I stand by the points that I have just made about the comparison or lack thereof between the householder situation and the situation of a victim of domestic abuse. I think at one point he came close to an implied charge of misogyny. I respectfully say that that does not easily sit with my approach to many amendments to the Bill or indeed the way in which I have dealt with the Bill itself. The issue between us is one of principle.

I am aware too that the noble Baroness who proposed the amendments has stated that there are difficulties with establishing the common-law defence of self-defence in cases of reactive violence by a survivor of domestic abuse against their abusive partner or former partner. As I stated in Committee, the ethos of the Bill is to improve and provide better support for victims of domestic abuse and to recognise and indeed highlight the wide-ranging impacts and implications of such behaviour. In raising the profile of domestic abuse, the Government hope to strengthen not only statutory agency support for victims and survivors but to improve the effectiveness of the justice system in better protecting those who suffer such abuse while bringing perpetrators to justice.

To that extent, I share the aims of the right reverend Prelate the Bishop of Gloucester. I assure her that this is not a question of finance; it is a question of the proper approach that the law should take in this area. That is because it is important for the Government to ensure that there is fair and equal access to justice for all. The law has to balance both the recognition of the abuse that has been suffered and the impact that it has had on a victim against the need to ensure that people, wherever possible, do not revert to criminal behaviour. I was pleased to hear that the noble Baroness, Lady Hamwee, agreed with me, at least on the latter proposition. The Government believe that that balance is currently reflected in the law—a law that continues to evolve but nevertheless strikes the right balance between those factors.

In making that last point, I referred in Committee to the fact that courts can often be quicker, more nuanced and more flexible in developing the common law than can Parliament in introducing a statutory provision that can be too rigid and narrowly drawn and may become more problematic than useful. I expressed myself as a fan of the common law, and I confirm again this evening that my enthusiasm for it is undimmed. Of course I agree with the noble Baroness, Lady Hamwee, that sometimes Parliament can lead the way—but not here.

Before I conclude my remarks on this amendment, I shall reply to one other point made by the noble Baroness, Lady Jones. She said that the Government have moved on several parts of the Bill, so why not this one? The reason is that, for the reasons I have set out, there is a principled argument that we make and which we stand by. I suggest that that argument is rooted properly in the way that the law is now applied and in the distinction between the domestic abuse case and the householder case. Towards the end of her remarks, the noble Baroness asked me a couple of quickfire questions. I am not sure that I have picked them all up, so if, on reading the Official Report, I find that they are relevant to this amendment, I will respond to them.

Although the Government are sympathetic to the aim behind Amendment 50, we remain entirely unpersuaded that it is needed, given the current defences that exist in law and the increased help, support and advice that will be available to victims of domestic abuse throughout the rest of the Bill.

21:45

I now turn to the conceptually distinct Amendment 51 and the linked Amendment 66. These propose a statutory defence for victims of domestic abuse who commit an offence. These amendments provide such a new statutory defence for victims of domestic abuse who commit a criminal offence and set out the offences to which the defence for victims of domestic abuse who commit an offence will not apply. The Government here also remain unpersuaded. We are unpersuaded that the model on which the proposed new clause is based—Section 45 of the Modern Slavery Act 2015—is either apt or effective.

I make four broad points in this context. First, we are particularly concerned about the anomalies that these amendments could create for other offences. As I stated in Committee, there are a range of serious offences to which the Section 45 defence does not apply. They are mainly serious sexual or violent offences, and the Section 45 defence does not apply to avoid creating legal loopholes through which serious criminals could escape justice. They are set out in Schedule 4 to the 2015 Act, which the amendment here seeks to replicate. While I note that the proposed new schedule seeks to replicate that list of excepted offences, pinpointing the behaviour that caused the offence nevertheless remains problematic. If we accept that the proposed statutory defence of compulsion to do an act is attributable to a person being a victim of domestic abuse—rather than a victim of trafficking, slavery or other relevant exploitation under the Modern Slavery Act—the question becomes: at what point in time, and to what type or level of domestic abuse, should any statutory defence be available?

When it comes to providing a defence to a potentially serious criminal charge, it is not appropriate simply to say that there can be any level of abuse that gives rise to such a defence, which is a complete defence to the charge, or that such abuse can be defined, as the Bill does—and I am proud of that—in the widest possible sense. That is not the case with the provisions relating to modern slavery. The defence there does not apply to the widest definition of exploitation of a person, but instead applies to behaviour which meets an existing criminal offence threshold—a threshold for a reasonable person to withstand behaviour directed against them. We are concerned about what could amount to domestic abuse in this context, and therefore what could trigger this absolute defence. That means that the position is so wide-ranging that it potentially provides a full defence to any criminal act, save those offences specifically listed. That is the first broad point.

Secondly, the Government are also concerned that a full defence for a defendant who has been subject to domestic abuse would create difficulties for other defendants who had been subject to other forms of harm, such as racial harassment or sexual harassment from strangers.

Thirdly, the proposed statutory defence would not only overlap with existing defences and prosecution policies, but undoubtedly cause confusion as to which law or policy would be applicable. Uncertainty within the criminal law is not to be welcomed, as it increases the risk of making the law inconsistent, unfair and possibly ineffective. That is not in the interests of justice.

Fourthly, the Government are aware of anecdotal evidence from law enforcement partners and others that the Section 45 defence is being misused. I made that point in Committee. There are reports that some offenders are falsely claiming that they are victims of modern slavery to escape justice. That is a very worrying development. It is why the Government are now working with criminal justice partners to assess how that defence is being used in practice, and why the Government are so cautious about the creation of a similar defence which might also be abused in a similar manner.

There are currently several defences potentially available in law to those who commit offences in circumstances connected with their involvement in an abusive relationship or situation. There are full defences—duress and self-defence—as well as, in homicide cases, the partial defences of loss of control or diminished responsibility. These defences are available to a defendant who is a victim of domestic abuse. Full defences, including duress and self-defence, are defences to any crime and, if pleaded successfully, result in acquittal. Partial defences, such as diminished responsibility and loss of control, reduce a charge from murder to manslaughter.

Moreover, where a person accused of a criminal offence has been subjected to domestic abuse, this will be considered throughout the criminal justice system, from the police investigation, through the CPS charging decision, to defences under the existing law, and finally as a mitigating factor in sentencing. One thing the Bill does is raise awareness and understanding of the devastating impact of domestic abuse on victims, survivors and their families. But defendants also need to make sure that their legal representatives and the CPS are aware, as soon as possible, of whether they have previously been a victim of domestic abuse and provide details of their domestic abuse history, as this will have an impact on any charging decisions and when considering guilty pleas.

That will need to be offset against the recognition of the harm done by the perpetrator of the crime, and the impact on the victim. It is important to ensure, as I said earlier, that wherever possible, people do not resort to criminal behaviour. It is this ethos that is currently reflected in the law and which seeks to strike the right balance between these various factors. For those reasons, the Government are unable to support the need for a new statutory defence, or indeed for a new defence on the reasonable use of force by victims of domestic abuse. Given that defences are available now in law, and given that courts can interpret and take account of any previous history of domestic abuse in their consideration of a case before them, amendments seeking new defences are considered unnecessary and likely to prove extremely problematic in their application in practice. We will keep the current defences under review.

In response to the point made by the noble Baroness, Lady Hamwee, about the discussion of the Bill in another place, there is a distinction between the defence to an offence, which is what we are talking about, and the sentencing approach, which is, I think, what she was referring to.

We will keep the position under review but, for the reasons I have set out, we have principled objections to both amendments. The noble Baroness, Lady Kennedy, intends to divide the House on each amendment and, as she has given that intimation of her intention, I invite all noble Lords to reject each of them.

[The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)]

I have received no requests to speak after the Minister; accordingly, I call the noble Baroness, Lady Kennedy of The Shaws.

[Baroness Kennedy of The Shaws (Lab) [V]]

My Lords, I am of course disappointed but not surprised by the response, as it was indicated that I would not receive the response that some other amendments have. It is regrettable, because all the evidence points towards problems in both these areas. There are women being convicted of crimes where they have clearly been coerced and their abusive partners are forcing them to commit crime. In relation to homicide and, indeed, lesser crimes, self-defence is not available to women because of the “disproportionate” issue. The measure should be just the same as in the intruder case. The distinction that the noble Lord seeks to make between that and the householder is really without merit and not convincing. I am sure he is having to read from a brief and he will know himself.

Anyone who really knows about domestic abuse knows that this is instinctive: when someone snaps, in the end, it is because they cannot take any more. That is why they reach for a weapon; they know that they cannot take on the sort of force that they have experienced in the past. This is a failure of understanding. It is being unable to stand in the shoes of someone in these circumstances.

I do not blame the noble Lord, Lord Wolfson, in any way. It is just that there is a process of learning here, which we have all been on. It may be easier to understand someone nearly being strangled, but harder to understand the moment when, instinctively and in terror, a person who has been abused over a long period suddenly reaches for a weapon in their defence. Not to understand that is regrettable, so I will move both these amendments and test the opinion of the House.

21:55

Division 3

Ayes: 298

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Labour: 137
Liberal Democrat: 81
Crossbench: 51
Independent: 14
Bishops: 8
Green Party: 2
Conservative: 2
Plaid Cymru: 1

Noes: 241

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Conservative: 212
Crossbench: 18
Independent: 5
Democratic Unionist Party: 4
Ulster Unionist Party: 2

22:08

Amendment 51

Moved by

[Baroness Kennedy of The Shaws]

51: After Clause 68, insert the following new Clause—
“Defence for victims of domestic abuse who commit an offence
(1) A person is not guilty of an offence if—(a) the person is aged 18 or over when the person does the act which constitutes the offence,(b) the person does that act because the person is compelled to do it,(c) the compulsion is attributable to their being a victim of domestic abuse, and(d) a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act.(2) A person may be compelled to do something by another person or by the person’s circumstances.(3) Compulsion is attributable to domestic abuse only if—(a) it is, or is part of, conduct which constitutes domestic abuse as defined in sections 1 and 2 of this Act, including but not limited to conduct which constitutes the offence of controlling or coercive behaviour in an intimate or family relationship as defined in section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship), or(b) it is a direct consequence of a person being, or having been, a victim of such abuse.(4) A person is not guilty of an offence if—(a) the person is under the age of 18 when the person does the act which constitutes the offence,(b) the person does that act as a direct consequence of the person being, or having been, a victim of domestic abuse as defined at subsection (3)(a) above, and(c) a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act.(5) For the purposes of this section “relevant characteristics” means age, sex, any physical or mental illness or disability and any experience of domestic abuse.(6) In this section references to an act include an omission.(7) Subsections (1) and (4) do not apply to an offence listed in Schedule (Offences to which the defence for victims of domestic abuse who commit an offence does not apply).(8) The Secretary of State may by regulations amend Schedule (Offences to which the defence for victims of domestic abuse who commit an offence does not apply).(9) The Secretary of State must make arrangements for monitoring of the types of offence for which victims of domestic abuse are prosecuted and use this evidence to inform an annual review of the offences listed in Schedule (Offences to which the defence for victims of domestic abuse who commit an offence does not apply) and any amendment to Schedule (Offences to which the defence for victims of domestic abuse who commit an offence does not apply).”Member’s explanatory statement
This new Clause would provide a statutory defence for survivors of domestic abuse, in some circumstances, who commit an offence. It is closely modelled on section 45 of the Modern Slavery Act 2015.

22:08

Division 4

Ayes: 283

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Labour: 132
Liberal Democrat: 78
Crossbench: 50
Independent: 10
Bishops: 7
Green Party: 2
Conservative: 1
Plaid Cymru: 1

Noes: 245

---

Conservative: 219
Crossbench: 15
Democratic Unionist Party: 5
Independent: 5
Ulster Unionist Party: 1

22:22

[The Deputy Speaker (Baroness Barker) (LD)]

We now come to the group consisting of Amendment 52. Anyone wishing to press this amendment to a Division must make that clear in debate.

Amendment 52

Moved by

[Lord Marks of Henley-on-Thames]

52: After Clause 68, insert the following new Clause—
“Controlling or coercive behaviour by persons providing psychotherapy or counselling services
(1) A person (“A”) commits an offence if—(a) A is a person providing or purporting to provide psychotherapy or counselling services to another person (“B”),(b) A repeatedly or continuously engages in behaviour towards B that is controlling or coercive,(c) the behaviour has a serious effect on B, and(d) A knows or ought to know that the behaviour will or may have a serious effect on B. (2) A’s behaviour has a “serious effect” on B if—(a) it causes B to fear, on at least two occasions, that violence will be used against B, or(b) it causes B psychological harm which has a substantial adverse effect on B’s usual day-to-day activities.(3) For the purposes of subsection (1)(d) A “ought to know” that which a reasonable person in possession of the same information would know.(4) In proceedings for an offence under this section it is a defence for A to show that—(a) in engaging in the behaviour in question, A believed that he or she was acting in B’s best interests, and(b) the behaviour was in all the circumstances reasonable.(5) A is to be taken to have shown the facts mentioned in subsection (4) if—(a) sufficient evidence of the facts is adduced to raise an issue with respect to them, and(b) the contrary is not proved beyond reasonable doubt.(6) The defence in subsection (4) is not available to A in relation to behaviour that causes B to fear that violence will be used against B.(7) A person guilty of an offence under this section is liable—(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both.”

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

My Lords, we had an extensive debate on our amendment in this form in Committee. We have brought it back on Report because we are determined to make progress on criminalising the fraudulent behaviour of the charlatan psychotherapists and counsellors this amendment is directed at. I believe we have made some progress since Committee and I am grateful to the noble Lord, Lord Parkinson of Whitley Bay, and the noble Baroness, Lady Penn, from the Department of Health and Social Care for their time, attention and sympathetic response at the meeting they arranged for a number of us who support this amendment.

I certainly think the meeting increased government understanding of the truly shocking wrongs these charlatans perpetrate towards the young people they prey on, the prevalence of this behaviour and the perniciousness of its effects—with the lives of many young and vulnerable people ruined, often permanently. Our debate and the meeting also reminded the Government of a long history of attempts to secure legislation curbing this behaviour and of the strength of feeling and determination of those who strive for change on this issue —an issue which is certainly not going to go away.

As we discussed in Committee, these totally unqualified charlatans ply their trade by offering what they call counselling or psychotherapy services, mostly to young adults, to whom they often charge very substantial fees. They then build up in their patients or clients—in reality, their victims—a misplaced trust in them and engineer a false dependence by a process of transference. This exploitation is often assisted by the perpetrators implanting entirely false memories in their victims of imagined but illusory abuse during their childhood, usually by their parents.

The process is aimed at alienating these young people from their parents and other family members—often permanently—inflicting profound and long-lasting psychological damage upon them. The noble Baroness, Lady Finlay, with all her extensive experience, tellingly described this unscrupulous exploitation of vulnerability, which is what this amendment aims to stop.

My understanding is that the Government maintain their position that the new offence we advocate should not be part of the Bill because, they say, there is a concern to confine the Bill to the domestic context, and these so-called counsellors and psychotherapists provide their services outside their victims’ homes. I disagree with that position for two reasons. The first is that this abuse is in fact domestic abuse, because its perpetrators, although not operating from within their victims’ family homes, are usurping the position of their victims’ parents and family members. As the noble Baroness, Lady Finn, put it in Committee,

“the self-styled development coach preys on their vulnerable clients and tears them away from their families, to the extent that they break off all contact and become estranged. There are countless such cases. The goal of such therapy is coercion and control, to debilitate and disable—abuse, if ever there was.”—[Official Report, 8/2/21; col. 23.]

Secondly, I do not believe we should be too precious about the ambit of a particular piece of legislation, including this Bill. The Domestic Abuse Bill before us amends other legislation in a large number of its provisions. Our amendment would add a new clause modelled on Section 76 of the Serious Crime Act 2015. Other amendments have been made to that Act in this Bill, notably the non-fatal strangulation offence incorporated in the Bill this afternoon, which inserts a clause of general application after Section 75—a clause which is not restricted to domestic abuse.

I suggest that if new legislation is necessary and within scope of the Bill—as the Public Bill Office decided our amendment was when it accepted it—we should legislate. The way to legislate on this issue is by adapting Section 76 of the Serious Crime Act, as we advocate.

It is high time for legislation. In Committee, the noble and learned Lord, Lord Garnier, explained the history of his involvement with seeking legislation on this issue when he was Solicitor-General. He raised the question of why, if they can legislate to outlaw this behaviour in France, Belgium and Luxembourg, we cannot legislate here. We have received no answer to that question.

The noble Lord, Lord Hunt of Kings Heath, also made the point that we have been trying fruitlessly to make progress for more than 20 years. The noble Baroness, Lady Mallalieu, pointed out that this type of alienation is nothing new; domestic alienation has been happening for 50 years, with the quasi-healers operating with immunity. So have the other forms of domestic abuse we are tackling in this Bill—but we are now trying to tackle them. The Bill involves an enlightened process on which we are embarked, but we should take care that in seeking enlightened progress, we do not make it exclusive.

Both before and since the debate in Committee, I have received a number of letters—some long, all well argued, clearly emotional and universally tragic—from parents and other family members who have, through no fault of their own, lost the relationships they once enjoyed with children and relatives, leaving them heartbroken and bereft, on the basis of falsehoods peddled by exploitative quacks. My noble friend Lady Jolly pointed out the degree to which this so-called therapy is entirely unregulated, and she powerfully demonstrated how relevant that was.

At our meeting, the noble Baroness, Lady Penn, raised the possibility of regulating psychotherapists by statutory instrument, and that is something we would be keen to follow up. However, it will certainly continue to be insufficient, as it has been to date, to rely on voluntary registration with the Professional Standards Authority, as mentioned by the noble Lord, Lord Parkinson of Whitley Bay, in Committee.

Strong and effective regulation will help and should be introduced, as proposed by my noble friend Lord Alderdice in his Private Member’s Bill as long ago as 2001. However, the thrust of our amendment is to criminalise this predatory abuse, and we need legislation to do that on the statute book. The Government seem to sympathise with that aim and the direction of our amendment, their unhappiness being at the prospect of including it in this Bill. But the one thing I have not heard from the Government is any suggestion that a coercive control offence modelled on Section 76, as this amendment is, is not a suitable way to achieve our aim. We therefore encourage the Government, even at this late stage, to accept this amendment or commit to legislation in this area.

22:30

If our amendment is not accepted, we will be back. If the Government cannot accept it now, will they please say what they propose? If not now, when? This cannot wait much longer. Victims and their families continue to suffer. They all need and deserve statutory protection. I beg to move.

[Lord Garnier (Con)]

My Lords, I co-signed and spoke in favour of this amendment when it was moved in Committee by the noble Lord, Lord Marks of Henley-on-Thames, and supported by the overwhelming majority of contributors to that debate. His arguments are as powerful today as they were in February. I join him in thanking my noble friends Lord Parkinson and Lady Penn for discussing the issue with us on Zoom since Committee. It was a helpful and useful meeting.

I explained in Committee—reasonably cogently, I hope—why this amendment would work both theoretically and practically as an addition to the criminal law and that, although not an exact replica, it is similar to laws in force in at least three other countries that adhere to the European Convention on Human Rights, namely Belgium, France and Luxembourg.

The Government raised two substantive arguments against the amendment in Committee. First, my noble friend Lord Parkinson of Whitely Bay said in his courteous response that a new offence criminalising controlling or coercive behaviour by persons providing psychotherapy or counselling services would alter the “dynamic” of a Bill specifically about domestic abuse and, further, would upset the Bill’s “architecture”. Secondly, my noble friend said that there were other remedies more suited to dealing with the issue such as registration with, or accreditation by, existing and respected professional bodies. Quacks and charlatans do not bother with accreditation; they do not bother with qualifications gained after years of study. But if accreditation is to have value, it needs to be underpinned by the force of the criminal law to deter the quacks and charlatans.

No doubt, requiring psychotherapists to be professionally qualified and accredited members of a professional body would enable well-motivated counsellors to gain standing and proper recognition. It already assists members of the medical and legal professions—such as the noble Baronesses, Lady Finlay and Lady Mallalieu, the noble Lords, Lord Marks and Lord Alderdice, and me—to be members of the royal societies, colleges or other bodies regulating our respective professions. It also, of course, assists our patients and clients.

More pertinently, however, it is a criminal offence under Section 49 of the Medical Act 1983—not just a breach of a regulation or professional etiquette—for someone wilfully and falsely to pretend to be, take or use the name or title of

“physician, doctor of medicine, licentiate in medicine and surgery, bachelor of medicine, surgeon, general practitioner or apothecary, or any name, title, addition or description implying that he is registered under any provision of this Act, or that he is recognised by law as a physician or surgeon or licentiate in medicine and surgery or a practitioner in medicine or an apothecary.”

A similar criminal offence is set out in Section 21 of the Solicitors Act 1974, and a man was recently jailed for over four years for a string of deception-related offences that included pretending to be a barrister by unlawfully carrying out what is known as a reserved legal activity.

My noble friend the Minister accepted the argument put by the noble Baroness, Lady Mallalieu, that as a country we have been slow to appreciate the scale of coercive behaviour. He further acknowledged that most noble Lords who supported this amendment in Committee had pointed to evidence and indeed to specific cases suggesting that fraudulent psychotherapists and counsellors were taking advantage of their position to supplant friends and families in the minds and affections of their clients for the purpose of turning them against those friends and families.

So far as worries about the Bill’s “dynamic” or “architecture” are concerned, one can accept or reject them depending on how urgently one thinks the problem needs to be addressed. I suggest that this is no more than a variation of the oft-repeated line that this or that amendment, while commendable in almost every respect, is being attached to the wrong Bill. The Minister told us in Committee that he did not want to be seen to be downplaying the seriousness of the issue, and of course I accept his word without question. It may well be that this amendment does not fit into the precise definition of domestic abuse within the particular relationships specified in the Bill, but as the noble Lord, Lord Marks, has just said, it is in order and it complies with its Long Title.

Like other amendments which have been accepted by the Government today, in my submission this amendment does not upset the Bill’s architecture. Looking at just two relatively recent Acts of Parliament, one is entitled to ask if the Government’s architectural analogy is a good one. The Criminal Justice Act 2003 deals with subjects as varied as search warrants, bail, cautions, disclosure, mode of trial, appeals, bad character evidence, sentencing and release on licence. The Policing and Crime Act 2009 covers subjects as diverse as the appointment of senior police officers, prostitution, selling alcohol to children, gang-related violence, confiscation of property and airport policing, among others. The architectural combination of the Baroque, the Romanesque and the Gothic in the cathedral of Santiago de Compostela has a more cohesive theme than many Acts of Parliament. If that building has stood for many centuries, I suspect that this Bill can accommodate this amendment.

Many of our criminal law statutes are Christmas trees on to which people hang the latest fad, but this amendment has been carefully thought about. It is necessary and it is timely. I would not want it to be thought that the Government’s desire to get this right through further cautious study was simply an excuse for delay and the cultivation of long grass.

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, we discussed in Committee that there are no laws against anyone operating as a therapist, psychotherapist or counsellor. Cheap online courses allow people to cheat to complete them, leading to qualifications that are often meaningless. The Health and Care Professions Council is a statutory regulator for practitioner psychologists in the UK. “Registered psychologist” and “practitioner psychologist” are protected titles, as are the specialist titles “clinical psychologist”, “counselling psychologist”, “health psychologist” and others. The title “chartered psychologist” is also protected by statutory regulation, meaning that a psychologist is a chartered member of the British Psychological Society, but not necessarily registered with the Health and Care Professions Council. However, the title of “psychologist” by itself is not protected, meaning that if psychologists do not use one of the protected titles, they can offer their psychological services without any regulation. The public have no idea that these people are not regulated in any way; even if serious concerns are expressed or complaints raised about them, they remain immune from investigation because they are not registered.

These people can wreak huge harm and havoc in other people’s lives. They can drain them of all their finances, create false assertions, produce false evidence and exploit them, driving them away from family members who love them and would support them, and trapping them in a cycle of ever more dangerous psychological dependency. Yet, the victims of such charlatan practitioners have no redress. That is why this amendment is needed and I strongly support it.

[Lord Alderdice (LD) [V]]

My Lords, in addition to the powerful arguments that have already been brought by noble friends, I have a few more. The first question is whether the amendment is appropriate to a Bill about domestic abuse. Few would argue that the victims of domestic abuse are not entitled to seek emotional and psychological help and support. The problem is that, either when they are undergoing the abuse or when they are trying to put their lives back together after a period as a victim of abuse, they are likely to seek psychological help.

If they can access psychotherapists, psychologists or others through the health service, there is a degree of protection. Even in a context where there is no statutory registration of psychotherapists working within the health service, as is the case, there is a degree of protection for the patient or client. But the majority of psychotherapists do not work in the health service; they work in private practice, community facilities or voluntary organisations, but not in the health service.

This produces two kinds of vulnerability. First, as we have already discussed, the victims themselves are open to be abused by those who claim to be psychotherapists, but who have a malign influence. I do not think I would have to go terribly far in your Lordships’ House to find uncertainty or confusion about what is a psychiatrist, psychologist, psychotherapist or similar title. One could hardly expect vulnerable victims to be more able to parse and find an appropriately trained person.

There is a further complexity, which has been made worse by Covid. Many perfectly reasonable and helpful people who are not registered psychotherapists and, in some cases, are not registered with any organisation never mind statutorily are working in quite isolated situations themselves now. I have talked to some psychotherapist colleagues, who are working from morning until night, every day of the week, on Zoom, with very vulnerable people. They are isolated themselves, socially and professionally, so their relationships with their patients and clients begin to have a degree of dependency. These people are not even professionally protected so, apart from the malign individual who consciously exploits the victim of domestic abuse, either currently or after their victimhood, it is not hard to see how a person who is not particularly malign may find themselves behaving in that way, for a series of psychological reasons.

What is troubling is that the knowledge of this has been around for a long time. In 1971, the Government commissioned and received a report from Sir John Foster. It was stimulated by concern about the Church of Scientology, but it looked at people who used coercive or controlling behaviour when providing psychotherapy or counselling services under that institution. The recommendation was that there needed to be registration —50 years ago. In 1978, Paul Sieghart produced a report with the same recommendations and, in 1981, Graham Bright produced a Private Member’s Bill in the other place based on Paul Sieghart’s report to register psychotherapy.

When I was appointed as the first consultant psychiatrist in psychotherapy in Ireland, north or south, I started training in psychotherapy through the medical faculty at Queen’s University Belfast, not just for those who were medically qualified but for others who were not, to enable them to become properly qualified. However, I quickly discovered that there was lots of what I call “wild psychotherapy”, so I talked to the Department of Health and Social Services, which agreed and provided some funds. We appointed one of my staff, Gillian Rodgers, to do a report, and she presented it to the department in May 1995—nothing was done.

22:45

As has already been referred to, I went to see the noble Baroness, Lady Hayman, who was Health Minister in the Lords, in 1999. She agreed, saying, “Yes, there is a serious problem; will you try to do something about it?” I did: I got together with all the psychotherapy organisations and we eventually brought forward a Bill, with their agreement, in the early 2000s—two Bills in fact. The Government did not follow either of them, although the second went through your Lordships’ House.

This is not a recent problem, but it is getting worse for a whole series of reasons. If the Government argue that this is not the Bill, I do not think that is valid: it is the Bill that can address it, at least for the victims of domestic abuse. I think that the Government are bound to let us know when and how they intend to bring in the registration of psychotherapy for the protection of clients and patients, and vulnerable therapists, who themselves are working outside the health service and do not have the protection that they need in these difficult times. I look forward to what the Minister has to say, and I hope that he will be able to go further than Governments have gone in 50 years of failure to follow up on the report that they themselves commissioned in 1971.

[Baroness Mallalieu (Lab) [V]]

My Lords, the arguments about the Bill being suitable for this measure that have been advanced again today by the noble Lords, Lord Marks and Lord Alderdice, and the noble and learned Lord, Lord Garnier, were powerfully deployed in Committee. They cut no ice with the Minister, and I have seen nothing to indicate since then that there is likely to be any change of heart. This will mean that this is yet another missed opportunity to deal with a very real problem.

In Committee, the noble Lord, Lord Parkinson, accepted that there is a need to find a remedy for this damaging and often criminal preying on the vulnerable who seek help for mental distress from unregulated and often totally unqualified self-styled talking therapists. There is ample evidence of the harm that has been caused: the noble Baroness, Lady Finlay, has just given us some. Victims have been alienated from their families, and, as I remember from my years in practice at the criminal Bar, on occasion this led to criminal trials based on what later appeared to be false memories implanted by self-styled talking therapists.

However, I believe that there has been a degree of progress since Committee, and I was very grateful to be included in the meeting that the noble Lord, Lord Marks, arranged with the noble Baroness, Lady Penn, the Minister and others; I thank the Minister for that. It became clear from that meeting that there are at least two ways in which a solution could be achieved if this Bill is not allowed to be the vehicle to deal with this.

Apparently, under the Health Act, regular reviews take place to decide whether specific occupations should require compulsory registration. This means that a successful applicant must meet proper standards and checks, and faces sanctions if the rules are broken. The change from voluntary to compulsory registration can be made by regulation, so no primary legislation is required.

The bogus practitioners of talking therapies, at whom this amendment is directed, currently do not have to register; as a start, they should be required to do so. These people use a variety of names for what they do and might well try to change their descriptions to avoid mandatory registration of a particular category. However, a generic name can surely be found and such a relatively minor difficulty overcome. After all, they are all talking therapists.

It became clear from our meeting that members of the public but also, surprisingly, some of those who direct them to these services, such as GPs, need to be better informed of the importance of using only registered practitioners. The public surely deserve to be better protected and compulsory registration would help to do just that. However, more is required, too: having to register might make it difficult for those who do not meet the required standards, but not impossible for the unscrupulous to continue to operate. There are criminal elements to the way in which some of these so-called therapists operate, which this amendment addresses. They will still need to be addressed in addition to compulsory registration. If that cannot be done in the Bill, as the Government contended in Committee—I still hope that they will change their mind—it can and should be met by a provision, possibly in a forthcoming health Bill or, as suggested by the noble Lord, Lord Marks, and the noble and learned Lord, Lord Garnier, in other legislation to be brought forward as soon as possible.

These are not isolated cases. When the noble Baroness, Lady Jolly, raised this matter in the House last year, she received an astonishingly large response from victims and their families. This type of abuse, as the noble Lord, Lord Alderdice, just said, has gone on unchecked for many years. It continues to sever children from their families, causes mental harm and misery to victims and their relations, and in some cases leads to serious false allegations being made. All sides agree that a remedy is needed yet every time an attempt is made to find one, successive Ministers have said, “Not this Bill—not my department, guv”.

Two common defects in our present system of government are stopping abuses being prevented in future. The first, I fear, is a culture of siloed departments: “We can’t deal with this or that because it’s someone else’s brief, someone else’s department”. Too often, there is a reluctance or failure to collaborate across departments to pass on and follow-up a problem which arises, or there is a change of Minister so that the problem falls—as this one has done over and over again down the years—into a black hole of inaction between them. It was therefore encouraging that the noble Baroness, Lady Finn, also attended the meeting with the noble Lord, Lord Parkinson. The second is the shortage—not an absence but certainly a shortage—of Ministers who, when those in their department say “We can’t do it” say to them: “This is a real problem. I want to find a solution. Please go away and come back with a way in which we can do it.”

The Minister was very helpful in our meeting, which enabled us to focus on the direction of some possible solutions. What we now need from him, if he cannot change his mind about the admissibility of the amendment in this legislation, is a commitment that the issue will at least receive urgent attention across departments and, after so long be treated as a priority. In this of all weeks, it is worth perhaps saying that people in mental turmoil who need help will, we hope, go searching for it. Failure to guide them to genuine help from properly registered practitioners is allowing some to fall into unscrupulous and dangerous hands. I do hope that the Minister will give us the assurance we need tonight.

[Lord Fairfax of Cameron (Con) [V]]

My Lords, I too speak this evening in support of the amendment of the noble Lord, Lord Marks. I apologise that I was unable to speak in Committee but I have read that debate, including the speeches of the noble Lord, Lord Marks, the noble and learned Lord, Lord Garnier, the noble Baronesses, Lady Finlay and Lady Jolly, and the noble Lord, Lord Hunt of Kings Heath. I agree with all that they said.

I developed an interest in this subject because I personally knew two families where young adult, female family members were, might I say, captured by what the noble Lord, Lord Marks, has called a charlatan counsellor—with prolonged, distressing and tragic consequences for the families and individuals in question. But as he and the noble and learned Lord, Lord Garnier, have reminded us this evening, this issue is much more widespread: so much so that, as the House has heard, France, Belgium and Luxembourg have legislated against this behaviour.

At this late hour, I do not propose to repeat the arguments compellingly put both this evening and in Committee in favour of similar legislation being enacted here. My understanding is that the Government, as they have said before, may be sympathetic in general but, as several speakers this evening have intimated, too often one gets the timeworn mantra from the Government that this is not the right time and not the right Bill. I remember this particularly being said several years ago in relation to the Leveson Section 40 point.

My question to the Minister this evening is the same as that put by the noble Lord, Lord Marks, and other noble Lords. If that is the Government’s position, when will be the right time to legislate against these reprehensible practices by charlatan counsellors who cause so much distress to so many families? In closing, I respectfully suggest that, as the noble Lord, Lord Alderdice, said, government inaction on this issue has already dragged on unacceptably long.

[Baroness Jolly (LD) [V]]

My Lords, this has been an interesting debate and I thank all Members who have taken part. The proposed new clause in my name and those of my noble friend Lord Marks of Henley-on-Thames and the noble and learned Lord, Lord Garnier, both of whom have spoken very forcefully, would create an offence of:

“Controlling or coercive behaviour by persons providing psychotherapy or counselling services”


in a person’s home.

We have heard that my noble friend Lord Alderdice, himself a psychiatrist, has long taken an interest in this issue, even tabling a Private Member’s Bill. The noble Baroness, Lady Finlay of Llandaff—another doctor—the noble Lord, Lord Fairfax of Cameron, and the noble Baroness, Lady Mallalieu, have made excellent cases for outlawing these charlatans. I thank them all for their robust and informed support.

Some time ago, I was approached by someone whose child in their 20s had their life ruined by an unregistered and untrained counsellor. Both the behaviour of and treatment by this charlatan were coercive and turned the child completely against their family. This is not something that many families talk about at length, but after hearing the dinner hour debate in the House some time ago, when my noble friend Lord Marks and the noble and learned Lord, Lord Garnier, both spoke, a significant number of people approached me and provided the evidence that convinced us that this is an issue that deserves attention from government.

What is done by these bogus counsellors is lawful but also amoral, unethical and without shame. I ask the Minister to support the proposed new clause. Without it, charlatans posing as professionals will be able to ruin yet more families and more young, vulnerable lives.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 52 moved by the noble Lord, Lord Marks of Henley-on-Thames, seeks to insert a new clause into the Bill. This issue was debated in Committee and I was clear then that I supported the intention of the proposed new clause but was not convinced that this was the right Bill. There is always a problem with finding ways to address issues, whether through primary or secondary legislation, or finding a Bill that is in scope or the regulation or order that can be used to make the necessary changes.

On the issue itself, both in Committee and on Report, a powerful case was made by the noble Lord, Lord Marks of Henley-on-Thames, the noble and learned Lord, Lord Garnier, and my noble friend Lady Mallalieu. This is a serious matter where people can be victims of some very dubious, unscrupulous and frankly criminal practices.

As we have heard, a traumatised person seeking help from a counsellor, therapist or psychotherapist has absolutely no idea whether that person is properly trained and able to give them professional help—or, as the noble Lord, Lord Marks of Henley-on-Thames, said, a charlatan preying on young people or vulnerable clients to debilitate and exert control. The risk is that the counsellor is untrained and unqualified and will do lasting damage to their client.

23:00

In responding to this debate, I hope the Minister is able to set out a pathway to remedy this undeniably serious problem so that patients who run the risk of becoming victims of further trauma or abuse are helped and supported. Is the remedy to seek some form of compulsory registration, for other health professionals to be clear about the importance of only using registered therapists, and to agree on a name on which everyone is clear so that there is no confusion?

I hope there is some movement from the Government today. Clearly, there have been a number of useful meetings since Committee. I agree that we need to deal with this serious problem, so I hope the Minister will be able to give us a positive response.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful to the noble Lord, Lord Marks of Henley-on-Thames, and all other noble Lords who have supported this amendment, for again setting out the case for it. The amendment seeks to create an offence of controlling or coercive behaviour for psychotherapists and counsellors providing services to clients.

Amendment 52 seeks, in effect, to replicate the coercive or controlling behaviour offence under Section 76 of the Serious Crime Act 2015. This offence was created to close a gap in legislation regarding patterns of coercive or controlling behaviour in a domestic abuse context; that is, during a relationship between intimate partners, former partners or family members. As such, the offence applies only to those who are “personally connected” as defined within Section 76 of the 2015 Act. The amendment would extend the offence beyond those who are personally connected as defined by that Act so that it applied to psychotherapists and counsellors.

In Committee, and again today, the noble Lord, Lord Marks, and others have strongly made the point that unregulated and fraudulent psychotherapists are able to take advantage of their clients’ vulnerability by supplanting parents and families in the affections and minds of their clients, with the purpose of turning them against their friends and families through a process called transference. The noble Lord has suggested that this abuse should be caught by the controlling or coercive behaviour offence because therapists are abusing their position of trust and the dependence of their clients.

As my noble and learned friend Lord Garnier noted, we have had a number of debates on this issue and on the importance—in the Government’s submission—of preserving the meaning of “personally connected” in relation to domestic abuse, both in this Bill and, by extension, for the purposes of the Section 76 offence. The Government recognise that noble Lords have raised an important issue and have made some spirited and cogent arguments in favour of doing something now. However, we still feel it is important to acknowledge that domestic abuse, including controlling or coercive behaviour, is a unique type of abuse underpinned by an emotional and affectionate bond between the victim and the perpetrator, as well as a complex power dynamic. The paid-for or commercial nature of the psychotherapist-client relationship represents a fundamentally different power dynamic from that of domestic abuse. In answer to the noble Lord, Lord Marks, my noble and learned friend Lord Garnier and others, that is why we do not believe that it is appropriate to replicate the Section 76 offence in other contexts such as this. I am grateful to the noble Lord, Lord Kennedy of Southwark, for recognising that this might not be the right Bill in which to do it.

As I mentioned in Committee, this is a matter for consideration by the Department of Health and Social Care. I am pleased that a number of noble Lords who have spoken in Committee and again tonight had the opportunity to discuss it in more detail with my noble friend Lady Penn, on behalf of that department, and with me. I am glad they found the discussion productive, as we did. I am grateful to those noble Lords for their time and engagement with us and with officials from both the Home Office and the Department of Health and Social Care.

As noble Lords noted, there is at present a system of accredited voluntary registration by the Professional Standards Authority for Health and Social Care. The authority has a process for quality-assuring voluntary registers of health and care professionals in the UK who are not subject to statutory regulation. It currently accredits 10 voluntary registers relating to counselling and psychotherapy, providing assurance to the public in relation to around 50,000 talking therapy professionals. These registers should be used by service users to choose a practitioner to meet their needs and to be assured that they are safe, trustworthy and competent to practise. To gain accreditation from the authority, organisations must meet 11 standards for accredited registers. I set those out in Committee so will not do that again now, but any registrant who is removed from an accredited register for conduct reasons cannot join another accredited register.

I recognise that these registers are voluntary, as a number of noble Lords have pointed out, but they provide assurance that practitioners who are on the registers are safe, trustworthy and competent. The noble Baroness, Lady Mallalieu, is right that more can be done in this area, and the Department of Health and Social Care is working with the Professional Standards Authority to improve awareness of the accredited registers programme and to encourage service users and providers—people such as GPs, as she says—to seek out the services of practitioners on an accredited register rather than unregistered individuals.

The Government are committed to a proportionate system of safeguards for the professionals who work in the health and care system, and from time to time we bring new professions into regulation. It is important that decisions to regulate a profession are evidence-based and consider the risks posed by the profession in the round, not just the risks posed by unscrupulous practitioners. The Professional Standards Authority has developed its “right-touch assurance” tool with the aim of providing advice on how best to regulate different groups in health and care. Where the Government are satisfied that the conditions for regulation of a profession are met, that can be taken forward through secondary legislation using powers in the Health Act 1999, a point that, as noble Lords mentioned today, we have explored in our helpful discussions since Committee.

The Department of Health and Social Care is currently conducting a programme of work to reform the professional regulation framework for healthcare professionals. That will provide an opportunity to consider whether the professions protected in law are the right ones and to ensure that the level of regulatory oversight is proportionate to the risks to the public.

I am conscious, as the noble Lord, Lord Alderdice, set out in his contribution, that this is an issue that has been around for a very long time—since 1971, in some form—and he has been working on it for many years. I hope that reassurance and the points that have been raised, both in these debates and in our meeting since Committee, will be fed into that work. Perhaps this will provide further reassurance: as a couple of noble Lords have alluded to, one person who spoke in Committee but is not speaking today is my noble friend Lady Finn. If nothing else, I hope noble Lords will note that they have another person on the government side who is fully sighted on these issues.

The noble Lords who have spoken in favour of the amendment have once again underlined this important issue, but I hope they will accept why we believe this is not the appropriate Bill in which to pursue the regulation of psychotherapists and counsellors. I have no doubt that they will take the further opportunity to debate this issue soon in the context of Department of Health-led legislation and, moreover, as I have indicated, the issue of regulation can be considered afresh in the context of the forthcoming review of the regulation of healthcare professionals.

The noble Lord, Lord Kennedy of Southwark, spoke of a pathway. It may not have as many paving stones as noble Lords might wish but I hope that they can discern one, and that on that basis the noble Lord, Lord Marks, will be content to withdraw his amendment.

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

My Lords, it is late in the evening and I shall be brief. We have heard a detailed argument from the noble and learned Lord, Lord Garnier, and my noble friend Lord Alderdice as to why this amendment fits so clearly within the ambit of the Bill. From my noble friend Lord Alderdice we also heard how close is the link between therapy and domestic abuse, and from all around the House we have heard how overdue this measure is and that it is not a recent problem that we are seeking to address.

It is also significant that this amendment attracts support from doctors and lawyers and Members of your Lordships’ House who are neither. The noble Baroness, Lady Finlay, said how common and how wrong it is that bogus therapists can take advantage of their clients, causing them real harm. The noble Lord, Lord Fairfax, was one of many Peers who know families who have been victims of this abuse, and he also powerfully argued for an end to inaction on the part of government. My noble friend Lady Jolly was another, who described graphically the behaviour of these charlatans as unethical and without shame. The noble Lord, Lord Kennedy, described our case on the amendment as a powerful case for change and called for action. So let us, please, not miss yet another opportunity, as the noble Baroness, Lady Mallalieu, put it. As the noble Baroness said, compulsory registration must sit alongside criminal sanctions, in just the way as the noble and learned Lord, Lord Garnier, pointed out. An offence of coercive control modelled on the Serious Crime Act may not be the only way to achieve it, but it is a good one.

Whatever form an amendment of the criminal law takes, the House and the Government know clearly what it is that we are trying to achieve. They really ought now to be implementing change, rather than closing the road to change. The Government need to get over the temptation to insist on drawing the distinction between what the noble Lord, Lord Parkinson, described as the emotional and affectionate bond that characterises domestic abuse and the type of abuse that these charlatans and quacks perpetrate on their victims. It will be interesting to see whether the Government can move away from insisting on that distinction. I described it earlier as a precious distinction, but it is purist at best.

“Not this Bill, not now” is no answer to the suffering of victims. We need the Government to be prepared to say, “Yes, this Bill and now”. At the very least, if they cannot say that, “The very next Bill, and soon”. We will take such opportunities as we can to bring about change. I accept that there will be opportunities to come, as the noble Lord, Lord Parkinson of Whitley Bay, indicated, and they may well be in health-driven legislation. On that basis, I beg leave to withdraw this amendment tonight, but we will be back seeking change in due course.

Amendment 52 withdrawn.

Schedule 2: Amendments relating to offences committed outside the UK

[The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)]

We now come to the group beginning with Amendment 53. Anyone wishing to press this or anything else in the group to a Division must make that clear in the debate.

Amendment 53

Moved by

[Lord Wolfson of Tredegar]

53: Schedule 2, page 65, line 37, leave out from beginning to end of line 10 on page 66
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 66, line 21.

[Lord Wolfson of Tredegar (Con)]

My Lords, these amendments fulfil an undertaking I gave in Committee in response to amendments tabled by my noble friend Lady Bertin that sought to ensure that UK citizens who commit marital rape in countries where such behaviour is not criminal may none the less be prosecuted in the UK.

I said then that we would consider this matter ahead of Report and, bearing in mind that the extraterritorial jurisdiction provisions are UK-wide, that we would also consult the devolved Administrations to ensure a consistent approach across the UK. We have done both —we have considered and we have consulted. I am pleased to say that, with the agreement of Ministers in Scotland and Northern Ireland, government Amendments 53 to 55, 58 to 61 and 63 to 65 achieve what my noble friend intended, and will apply to relevant legislation throughout the UK. I shall remind the House briefly, given the hour, of the provisions.

Schedule 2 to the Bill contains amendments to various enactments to provide for extraterritorial jurisdiction over certain offences under the law of England and Wales, Scotland and Northern Ireland. This will ensure that, as required by the Istanbul convention, the UK will be able to prosecute these offences when they are committed outside the UK by one of our nationals or habitual residents. The scheme is this: part 1 of the schedule covers England and Wales, part 2 covers Scotland, and part 3 covers Northern Ireland.

In keeping with the normal principles of extraterritorial jurisdiction and the terms of the convention, there is a requirement that a prosecution for one of the relevant sexual offences—these include rape where the victim of the offence is aged 18 or over—may be brought in the UK only when the offending behaviour is also an offence in the country where it happens. This is known as dual criminality.

23:15

In most circumstances, that dual criminality requirement is not a barrier to prosecution because most serious sexual offences against adults are likely to be criminal in most other countries. However, as my noble friend Lady Bertin identified, it could mean that, in some circumstances, UK authorities would not be able to prosecute someone for marital rape committed outside the UK if such behaviour is either not included in or exempt from the equivalent offence in the other jurisdiction. This is a narrow gap, but we believe that it is right, as a matter of principle, to amend the Bill to cater for it.

As it stands, the Bill applies a dual criminality requirement for relevant sexual offences committed against adults outside the UK by UK nationals and by UK residents. Government Amendments 53 to 55 would amend part 1 of Schedule 2 to remove the dual criminality requirement for UK nationals who commit offences under Sections 1 to 4 of the Sexual Offences Act 2003 against adult victims outside the UK. With the agreement of Ministers in Scotland and Northern Ireland, government Amendments 58 to 61 and 63 to 65 will amend parts 2 and 3 of the schedule to make corresponding changes to the Scottish and Northern Irish legislation and orders. These amendments will mean that UK nationals who commit marital rape in the small number of countries where such behaviour is not criminal may none the less be brought to trial in the UK.

However, a dual criminality requirement will continue to apply for UK residents. This means that we could prosecute UK residents who commit marital rape abroad only if the behaviour is also criminal in the country where it is committed. We should not prosecute, for example, a Ruritanian national who is habitually resident in England for doing something in Ruritania that is not criminal under Ruritanian law. I remind the House that existing law already makes the same distinction between UK nationals and UK residents in relation to extraterritorial sexual offences where the victim is aged under 18.

In short, these amendments will ensure that our nationals comply with our laws even when abroad. At the same time, the amendments respect important principles of international law and comity in relation to non-UK nationals ordinarily resident in the UK.

Finally, government Amendments 56, 57 and 62 have been included at the request of Ministers in Scotland. These make additional amendments to part 2 of Schedule 2 to provide—for offences where a dual criminality requirement is being retained—a rebuttable presumption that the act in question constitutes an offence under the law of the country where it took place. This mirrors existing provisions throughout the UK in relation to extraterritorial sexual offences against children and other provisions in this Bill extending extraterritorial jurisdiction to offences that do not currently have extraterritorial effect. The relevant provisions simply provide a procedure under which the defendant can challenge the prosecution to prove that what was done was an offence under the laws of the country where the act was done.

Again, I express my thanks to my noble friend Lady Bertin for raising this issue. For these reasons, I beg to move.

[Baroness Bertin (Con) [V]]

My Lords, given the hour I will be very brief. I thank the Government and my noble friend the Minister for listening and laying their own amendments to close the loophole I raised in Committee. It is a very small gap, but one it is right to fill. Doing so sends the right signal domestically and internationally. The UN said in a recent report that the home is still one of the most dangerous places for women. In many countries, sex is still seen as an automatic part of the marriage contract. No data on marital rape is collected in many countries, where not only is it not a crime but social pressure means that it is rarely reported or discussed. We have been pioneers in this area of law; it is right that this country be able to uphold the high standards of our legislation at all times.

[Lord Paddick (LD) [V]]

My Lords, I am very grateful to the noble Baroness, Lady Bertin, for identifying this gap whereby marital rape is not an offence in some countries and therefore British nationals would not have been convicted had they committed marital rape in them. I am very grateful to the Minister for responding to the identification of that gap and closing it effectively.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, this group of amendments addresses marital rape, whereby rape could be committed by a UK citizen in a country that does not consider it a crime and, presently, no prosecution could be brought. The noble Baroness, Lady Bertin, brought the matter to the attention of the House in Committee and has been successful in persuading the Government of the merits of her case and the importance of closing this loophole.

I offer her my sincere congratulations on her success. Her actions will protect women and girls from the horrific crime of rape and ensure that no rapist or perpetrator of these vile crimes can evade justice through making use of this loophole in the law and hide behind the fact that marital rape is not a crime in a small number of countries. This is a good example of the House of Lords doing its job well. An important issue was raised, well argued and supported across the House; the Government considered it carefully and responded positively, bringing forward their own amendments to address the issue.

[Lord Wolfson of Tredegar (Con)]

My Lords, I hope the House will forgive me again if my reply is very brief, not because the issue is not important but because there is obvious agreement across the House. I again thank my noble friend Lady Bertin for bringing this matter to the Government’s attention and for the discussions we have had. I thank the noble Lord, Lord Paddick, for his kind words on this matter this evening, which I appreciate. I also thank the noble Lord, Lord Kennedy of Southwark; I am very pleased to have his and his Benches’ support on this matter. I will not say any more given the time, but I commend this amendment to the House.

Amendment 53 agreed.

Amendments 54 to 65

Moved by

[Lord Wolfson of Tredegar]

54: Schedule 2, page 66, leave out lines 12 and 13
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 66, line 21.

55: Schedule 2, page 66, line 21, leave out from “Wales,” to “an” in line 22 and insert “subsections (1) and (2) of section 72 also apply to”
Member’s explanatory statement
The effect of this amendment is that, for a UK national to be guilty in England and Wales of rape or sexual assault as a result of an act in a country outside the UK where the victim was 18 or over, it is not necessary for the act also to be an offence in that country.

56: Schedule 2, page 67, line 17, at end insert—
“(2AA) For the purposes of subsection (2A)(a), an act punishable under the law in force in the country is an offence under that law however it is described in that law.(2AB) The condition specified in subsection (2A)(a) is to be taken as satisfied unless, not later than such time as may be prescribed by Act of Adjournal, the accused serves on the prosecutor a notice—(a) stating that, on the facts as alleged with respect to the act in question, the condition is not in the accused’s opinion satisfied,(b) setting out the grounds for the accused’s opinion, and(c) requiring the prosecutor to prove that the condition is satisfied.(2AC) But the court, if it thinks fit, may permit the accused to require the prosecutor to prove that the condition is satisfied without the prior service of a notice under subsection (2AB).(2AD) In proceedings on indictment, the question whether the condition is satisfied is to be determined by the judge alone.”Member’s explanatory statement
This amendment provides, in section 11 of the Criminal Procedure (Scotland) Act 1995, for a rebuttable presumption that an act committed in a country outside the UK, which would be an assault if committed in Scotland, is an offence in that country.

57: Schedule 2, page 67, line 18, leave out “(2A)” and insert “(2AA)”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 67, line 17.

58: Schedule 2, page 67, line 35, leave out “or is habitually resident in Scotland”
Member’s explanatory statement
This amendment would limit section 54D(1) of the Sexual Offences (Scotland) Act 2009 (being inserted by this Bill) to UK nationals only (and not also those habitually resident in Scotland) and is linked with the Minister’s amendments at page 67, lines 38 and 42.

59: Schedule 2, page 67, leave out lines 38 and 39
Member’s explanatory statement
This amendment removes the condition in section 54D(1) of the Sexual Offences (Scotland) Act 2009 that, for a UK national to commit an offence in Scotland in relation to an act in a country outside the UK, the act must also be an offence in that country.

60: Schedule 2, page 67, line 42, at end insert—
“(1A) If—(a) a person who is habitually resident in Scotland does an act in a country outside the United Kingdom,(b) the act constitutes an offence under the law in force in that country, and(c) the act, if done in Scotland, would constitute an offence to which this subsection applies,then the person commits that offence.”Member’s explanatory statement
This amendment means that, for a person habitually resident in Scotland to commit an offence in Scotland in respect of an act in a country outside the UK, it remains a condition under section 54D of the Sexual Offences (Scotland) Act 2009 that the act is an offence in that country.

61: Schedule 2, page 68, line 1, leave out “subsection (1) applies” and insert “subsections (1) and (1A) apply”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 67, line 42.

62: Schedule 2, page 68, line 3, at end insert—
“(2A) For the purposes of subsection (1A)(b), an act punishable under the law in force in the country is an offence under that law however it is described in that law.(2B) The condition specified in subsection (1A)(b) is to be taken as satisfied unless, not later than such time as may be prescribed by Act of Adjournal, the accused serves on the prosecutor a notice—(a) stating that, on the facts as alleged with respect to the act in question, the condition is not in the accused’s opinion satisfied,(b) setting out the grounds for the accused’s opinion, and(c) requiring the prosecutor to prove that the condition is satisfied.(2C) But the court, if it thinks fit, may permit the accused to require the prosecutor to prove that the condition is satisfied without the prior service of a notice under subsection (2B).(2D) In proceedings on indictment, the question whether the condition is satisfied is to be determined by the judge alone.”Member’s explanatory statement
This amendment provides, in section 54D of the Sexual Offences (Scotland) Act 2009, for a rebuttable presumption that an act committed in a country outside the UK, which would be an offence if committed in Scotland, is an offence in that country.

63: Schedule 2, page 70, leave out lines 5 to 15
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 70, line 22.

64: Schedule 2, page 70, leave out lines 17 and 18
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 70, line 22.

65: Schedule 2, page 70, line 22, leave out from beginning to “an offence” and insert “Paragraphs (1) and (2) also apply to”
Member’s explanatory statement
The effect of this amendment is that, for a UK national to be guilty in Northern Ireland of rape or sexual assault as a result of an act in a country outside the UK where the victim was 18 or over, it is not necessary for the act also to be an offence in that country.

Amendments 54 to 65 agreed.

Amendment 66

Moved by

[Baroness Kennedy of The Shaws]

66: After Schedule 2, insert the following new Schedule—
“OFFENCES TO WHICH THE DEFENCE FOR VICTIMS OF DOMESTIC ABUSE WHO COMMIT AN OFFENCE DOES NOT APPLYCommon law offences
1 False imprisonment.2 Kidnapping.3 Manslaughter.4 Murder.5 Perverting the course of justice.6 Piracy.Offences against the Person Act 1861
7 An offence under any of the following provisions of the Offences Against the Person Act 1861—(a) section 4 (soliciting murder);(b) section 16 (threats to kill);(c) section 18 (wounding with intent to cause grievous bodily harm);(d) section 20 (malicious wounding);(e) section 21 (attempting to choke, suffocate or strangle in order to commit or assist in committing an indictable offence);(f) section 22 (using drugs etc to commit or assist in the committing of an indictable offence);(g) section 23 (maliciously administering poison etc so as to endanger life or inflict grievous bodily harm);(h) section 27 (abandoning children);(i) section 28 (causing bodily injury by explosives);(j) section 29 (using explosives with intent to do grievous bodily harm);(k) section 30 (placing explosives with intent to do bodily injury);(l) section 31 (setting spring guns etc with intent to do grievous bodily harm);(m) section 32 (endangering safety of railway passengers);(n) section 35 (injuring persons by furious driving);(o) section 37 (assaulting officer preserving wreck);(p) section 38 (assault with intent to resist arrest).Explosive Substances Act 1883
8 An offence under any of the following provisions of the Explosive Substances Act 1883—(a) section 2 (causing explosion likely to endanger life or property);(b) section 3 (attempt to cause explosion, or making or keeping explosive with intent to endanger life or property);(c) section 4 (making or possession of explosives under suspicious circumstances).Infant Life (Preservation) Act 1929
9 An offence under section 1 of the Infant Life (Preservation) Act 1929 (child destruction).Children and Young Persons Act 1933
10 An offence under section 1 of the Children and Young Persons Act 1933 (cruelty to children).Public Order Act 1936
11 An offence under section 2 of the Public Order Act 1936 (control etc of quasi-military organisation).Infanticide Act 1938
12 An offence under section 1 of the Infanticide Act 1938 (infanticide). Firearms Act 1968
13 An offence under any of the following provisions of the Firearms Act 1968—(a) section 5 (possession of prohibited firearms);(b) section 16 (possession of firearm with intent to endanger life);(c) section 16A (possession of firearm with intent to cause fear of violence);(d) section 17(1) (use of firearm to resist arrest);(e) section 17(2) (possession of firearm at time of committing or being arrested for specified offence);(f) section 18 (carrying firearm with criminal intent).Theft Act 1968
14 An offence under any of the following provisions of the Theft Act 1968—(a) section 8 (robbery or assault with intent to rob);(b) section 9 (burglary), where the offence is committed with intent to inflict grievous bodily harm on a person, or to do unlawful damage to a building or anything in it;(c) section 10 (aggravated burglary);(d) section 12A (aggravated vehicle-taking), where the offence involves an accident which causes the death of any person;(e) section 21 (blackmail).Criminal Damage Act 1971
15 The following offences under the Criminal Damage Act 1971—(a) an offence of arson under section 1;(b) an offence under section 1(2) (destroying or damaging property) other than an offence of arson.Immigration Act 1971
16 An offence under section 25 of the Immigration Act 1971 (assisting unlawful immigration to member state).Customs and Excise Management Act 1979
17 An offence under section 170 of the Customs and Excise Management Act 1979 (penalty for fraudulent evasion of duty etc) in relation to goods prohibited to be imported under section 42 of the Customs Consolidation Act 1876 (indecent or obscene articles).Taking of Hostages Act 1982
18 An offence under section 1 of the Taking of Hostages Act 1982 (hostage-taking).Aviation Security Act 1982
19 An offence under any of the following provisions of the Aviation Security Act 1982—(a) section 1 (hijacking);(b) section 2 (destroying, damaging or endangering safety of aircraft);(c) section 3 (other acts endangering or likely to endanger safety of aircraft);(d) section 4 (offences in relation to certain dangerous articles).Mental Health Act 1983
20 An offence under section 127 of the Mental Health Act 1983 (ill-treatment of patients).Child Abduction Act 1984
21 An offence under any of the following provisions of the Child Abduction Act 1984—(a) section 1 (abduction of child by parent etc);(b) section 2 (abduction of child by other persons).Public Order Act 1986
22 An offence under any of the following provisions of the Public Order Act 1986— (a) section 1 (riot);(b) section 2 (violent disorder).Criminal Justice Act 1988
23 An offence under section 134 of the Criminal Justice Act 1988 (torture).Road Traffic Act 1988
24 An offence under any of the following provisions of the Road Traffic Act 1988—(a) section 1 (causing death by dangerous driving);(b) section 3A (causing death by careless driving when under the influence of drink or drugs).Aviation and Maritime Security Act 1990
25 An offence under any of the following provisions of the Aviation and Maritime Security Act 1990—(a) section 1 (endangering safety at aerodromes);(b) section 9 (hijacking of ships);(c) section 10 (seizing or exercising control of fixed platforms);(d) section 11 (destroying fixed platforms or endangering their safety);(e) section 12 (other acts endangering or likely to endanger safe navigation);(f) section 13 (offences involving threats).Channel Tunnel (Security) Order 1994 (S.I. 1994/570)
26 An offence under Part 2 of the Channel Tunnel (Security) Order 1994 (SI 1994/570) (offences relating to Channel Tunnel trains and the tunnel system).Protection from Harassment Act 1997
27 An offence under any of the following provisions of the Protection from Harassment Act 1997—(a) section 4 (putting people in fear of violence);(b) section 4A (stalking involving fear of violence or serious alarm or distress).Crime and Disorder Act 1998
28 An offence under any of the following provisions of the Crime and Disorder Act 1998 —(a) section 29 (racially or religiously aggravated assaults);(b) section 31(1)(a) or (b) (racially or religiously aggravated offences under section 4 or 4A of the Public Order Act 1986).Terrorism Act 2000
29 An offence under any of the following provisions of the Terrorism Act 2000—(a) section 54 (weapons training);(b) section 56 (directing terrorist organisation);(c) section 57 (possession of article for terrorist purposes);(d) section 59 (inciting terrorism overseas).International Criminal Court Act 2001
30 An offence under any of the following provisions of the International Criminal Court Act 2001—(a) section 51 (genocide, crimes against humanity and war crimes);(b) section 52 (ancillary conduct).Anti-terrorism, Crime and Security Act 2001
31 An offence under any of the following provisions of the Anti-terrorism, Crime and Security Act 2001—(a) section 47 (use of nuclear weapons);(b) section 50 (assisting or inducing certain weapons-related acts overseas);(c) section 113 (use of noxious substance or thing to cause harm or intimidate). Female Genital Mutilation Act 2003
32 An offence under any of the following provisions of the Female Genital Mutilation Act 2003—(a) section 1 (female genital mutilation);(b) section 2 (assisting a girl to mutilate her own genitalia);(c) section 3 (assisting a non-UK person to mutilate overseas a girl’s genitalia).Sexual Offences Act 2003
33 An offence under any of the following provisions of the Sexual Offences Act 2003—(a) section 1 (rape);(b) section 2 (assault by penetration);(c) section 3 (sexual assault);(d) section 4 (causing person to engage in sexual activity without consent);(e) section 5 (rape of child under 13);(f) section 6 (assault of child under 13 by penetration);(g) section 7 (sexual assault of child under 13);(h) section 8 (causing or inciting child under 13 to engage in sexual activity);(i) section 9 (sexual activity with a child);(j) section 10 (causing or inciting a child to engage in sexual activity);(k) section 13 (child sex offences committed by children or young persons);(l) section 14 (arranging or facilitating commission of child sex offence);(m) section 15 (meeting a child following sexual grooming);(n) section 16 (abuse of position of trust: sexual activity with a child);(o) section 17 (abuse of position of trust: causing or inciting a child to engage in sexual activity);(p) section 18 (abuse of position of trust: sexual activity in presence of child);(q) section 19 (abuse of position of trust: causing a child to watch a sexual act);(r) section 25 (sexual activity with a child family member);(s) section 26 (inciting a child family member to engage in sexual activity);(t) section 30 (sexual activity with a person with a mental disorder impeding choice);(u) section 31 (causing or inciting a person with a mental disorder impeding choice to engage in sexual activity);(v) section 32 (engaging in sexual activity in the presence of a person with a mental disorder impeding choice);(w) section 33 (causing a person with a mental disorder impeding choice to watch a sexual act);(x) section 34 (inducement, threat or deception to procure sexual activity with a person with a mental disorder);(y) section 35 (causing a person with a mental disorder to engage in or agree to engage in sexual activity by inducement, threat or deception);(z) section 36 (engaging in sexual activity in the presence, procured by inducement, threat or deception, of a person with a mental disorder);(aa) section 37 (causing a person with a mental disorder to watch a sexual act by inducement, threat or deception); (ab) section 38 (care workers: sexual activity with a person with a mental disorder);(ac) section 39 (care workers: causing or inciting sexual activity);(ad) section 40 (care workers: sexual activity in the presence of a person with a mental disorder);(ae) section 41 (care workers: causing a person with a mental disorder to watch a sexual act);(af) section 47 (paying for sexual services of a child);(ag) section 48 (causing or inciting child prostitution or pornography);(ah) section 49 (controlling a child prostitute or a child involved in pornography);(ai) section 50 (arranging or facilitating child prostitution or pornography);(aj) section 61 (administering a substance with intent);(ak) section 62 (committing offence with intent to commit sexual offence);(al) section 63 (trespass with intent to commit sexual offence);(am) section 64 (sex with an adult relative: penetration);(an) section 65 (sex with an adult relative: consenting to penetration);(ao) section 66 (exposure);(ap) section 67 (voyeurism);(aq) section 70 (sexual penetration of a corpse).Domestic Violence, Crime and Victims Act 2004
34 An offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing a child or vulnerable adult to die or suffer serious physical harm).Terrorism Act 2006
35 An offence under any of the following provisions of the Terrorism Act 2006—(a) section 5 (preparation of terrorist acts);(b) section 6 (training for terrorism);(c) section 9 (making or possession of radioactive device or material);(d) section 10 (use of radioactive device or material for terrorist purposes);(e) section 11 (terrorist threats relating to radioactive devices etc).Modern Slavery Act 2015
36 An offence under any of the following provisions of the Modern Slavery Act 2015—(a) section 1 (slavery, servitude and forced or compulsory labour);(b) section 2 (human trafficking).Ancillary offences
37_(1) An offence of attempting or conspiring to commit an offence listed in this Schedule.(2) An offence committed by aiding, abetting, counselling or procuring an offence listed in this Schedule.(3) An offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting) where the offence (or one of the offences) which the person in question intends or believes would be committed is an offence listed in this Schedule.”

Amendment 66 agreed.

[The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)]

We now come to the group consisting of Amendment 66A. Anyone wishing to press this amendment to a Division must make that clear in debate.

Clause 71: Homelessness: victims of domestic abuse

Amendment 66A

Moved by

[Lord Randall of Uxbridge]

66A: Clause 71, page 56, line 12, at end insert—
“( ) In section 199 (local connection), after subsection (1) insert—“(1A) A person who is, or is likely to become, a victim of domestic abuse is deemed to have a local connection to any authority for the purposes of an application to that authority under section 183.””

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

My Lords, I am sure everyone will be relieved to know that I do not intend either to detain the House for long or to press my amendment to a Division. I feel slightly guilty because I am keeping noble Lords late, but I raised this issue in Committee and, to be honest, was not very satisfied with the answer. I looked again in Hansard to see exactly what my noble friend said and would like to reiterate some of my concerns with that answer.

My amendment concerns the fact that somebody who has suffered domestic abuse might well have moved from the local authority where they lived when suffering the abuse, either to a refuge or to a friend or parent’s house. Then, being homeless, they present themselves to the local authority. A lot of local authorities will say that to have housing provided to them, they must have a local connection—in other words, they must have lived there for some time. Obviously, that would not necessarily be the case, and they may want to be well away from where the abuse took place.

I looked again at my noble friend’s reply. She said:

“The existing legislation and guidance on this matter is clear that a housing authority cannot refer an applicant to another housing authority where they have a local connection if they or anyone who might be reasonably expected to reside there would be at risk of domestic abuse in that area.”


That sounds fine, expect I was not quite sure what the legislation was. My point, which I will get to in a little while, is about the force of guidance. My noble friend continued:

“The Homelessness Code of Guidance for Local Authorities makes clear that a housing authority is under a positive duty to inquire where the applicant would be at risk of actual or threatened domestic violence.”


I am a little concerned that “actual or threatened domestic violence” might not be the whole gamut of domestic abuse that we have been discussing throughout the Bill. She went on to say:

“It stipulates that authorities should not impose a higher standard of proof of actual violence”.—[Official Report, 8/2/21; col. 72.]


That concerns me. Is it just where actual or threatened violence has taken place, rather than some of the other forms of abuse that we might be talking about?

My noble friend said that the local connection test was

“to keep a degree of fairness to ensure that those who live locally are prioritised and that no one authority gets oversubscribed.”—[Official Report, 8/2/21; col. 72.]

Of course, that is exactly what it is. Having been a constituency Member of Parliament for many years, housing was one of the top issues that people came to see me about at my advice surgeries. However, if there are genuine concerns, that degree of fairness should be given to those people who cannot live anywhere else. The idea that they could be moved around, not only to return to where they have the local connection but to find a local authority that is sympathetic, worried me.

Finally, I wonder what the force of guidance is, as opposed to actual legislation. I hoped that this might get into the Bill, just to give succour to those people. I mentioned quite a few examples in Committee which I will not go through again. The Minister is aware of the situation. Can she provide more clarity on what I have just outlined?

23:30

[The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)]

I call the noble Baroness, Lady Burt of Solihull. We are having connection difficulties. I call the noble Lord, Lord Kennedy of Southwark.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I am pleased to offer my full support for Amendment 66A, moved by the noble Lord, Lord Randall of Uxbridge. I would have happily signed the noble Lord’s amendment and apologise for not doing so. The noble Lord set out his case well—namely, that victims of domestic abuse must often endure lifelong risks from the perpetrator. The risk does not end when the relationship comes to an end and, as the noble Lord, Lord Randall, told us, it is often when the relationship has ended that the risk significantly increases.

I can see, therefore, as I am sure other noble Lords can, that some victims will want to get as far away as possible from the perpetrator. However, the action of some local authorities in introducing a local connection rule, whether for access to refuge places or for the provision of housing, puts victims at risk. The noble Lord’s amendment seeks to ensure that, in England, victims can seek the protection of moving away to another place when seeking new housing, and that no local rules can be brought to bear that frustrate that protection or that desire if that is what the victims wish to do. With this and the other amendments that we are debating about enabling victims to make a choice that affords them the protection that they feel comfortable living with—that is what this is about—the noble Lord is looking for a positive response from the Minister on how we can move this forward. I am confident that we shall get that.

I should declare my relevant interest as vice-president of the Local Government Association, as this is a housing matter. I look forward to the Minister’s response.

[Baroness Williams of Trafford (Con)]

My Lords, I hope I can provide that assurance. My noble friend Lord Randall explained that Amendment 66A seeks to amend the Housing Act 1996. As the noble Lord, Lord Kennedy, just explained, that Act deems victims of domestic abuse to have a local connection to the relevant local authority in England when seeking homelessness assistance under Part 7 of the Act.

I indicated in Committee, and will say again, that the existing legislation and guidance on this matter are clear. A victim of domestic abuse, or indeed anyone who is homeless or at risk of homelessness, can approach any local authority in England for assistance without a local connection. Once a local authority has accepted an application, it will then make inquiries around local connection, among other criteria. Ordinarily, if someone does not have a local connection in the area, but has a local connection elsewhere, the local authority may then refer that person to the other local authority. However, the legislation is clear that a housing authority cannot refer an applicant to another housing authority where they have a local connection if they, or anyone who might reasonably be expected to reside with them, would be at risk of domestic abuse.

The homelessness code of guidance makes clear that a housing authority is under a positive duty to inquire whether the applicant would be at risk of actual or threatened domestic abuse and stipulates that authorities should not impose a high standard of proof of actual violence in the past when making its decision. If an applicant is at risk, they can present at another local authority. As such, protections are already in place for victims of domestic abuse which ensure that they are not housed in a local authority area where there is a risk of violence or abuse and ensure that local connection is not a barrier to accessing that homelessness assistance. The local connection test seeks to keep a degree of fairness, ensuring that those who live locally are prioritised and no one authority gets oversubscribed, which is an important point.

The statutory guidance already ensures that victims of domestic abuse should not be hindered by local connection criteria when accessing support services. As I indicated, the Government are committed to proactively engaging with local authorities to ensure that there is a thorough and proper understanding of the new duty and wider domestic abuse policy, including in relation to local connection.

I acknowledge that it is clear from engagement with the sector and points raised by noble Lords today that there is perhaps a misunderstanding that Amendment 66A would impact on social housing allocations. Social housing falls under a different part of the Housing Act 1996 so, regrettably, the amendment before us would not meet my noble friend’s aim.

With regard to social housing legislation, since 2012 local authorities have had the power to decide who qualifies for social housing in their area, including through the use of a local connection test. However, statutory guidance published in 2013 advises local authorities to consider making appropriate exceptions, including for people moving into an area to escape violence. Guidance issued in 2018 goes further and strongly encourages all local authorities not to apply a local connection test to victims of domestic abuse in refuges or other safe temporary accommodation. With those words, I hope I have been able to satisfy my noble friend and, consequently, that he will be content to withdraw his amendment.

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

My Lords, I thank the noble Lord, Lord Kennedy, and my noble friend. I am sorry that the noble Baroness, Lady Burt, did not have her connection—obviously it was not a local one. I will have to be satisfied; I think we are nearly there. I noticed that my noble friend changed some of the words—to “abuse” rather than “violence”; I think that is right.

She has been slightly saved by the bell. It had been pointed out to me that the amendment was not quite fit for purpose in what I had aimed to do. I tabled another amendment late and, if we had not got as far as we have today, I would have been able to speak to it next time, but that will not happen. I shall leave it there and I beg leave to withdraw the amendment.

Amendment 66A withdrawn.

Consideration on Report adjourned.

House adjourned at 11.37 pm.