(7 months ago)
Lords ChamberMy Lords, I shall speak briefly to Amendment 61, in the name of the noble Lord, Lord Ponsonby of Shulbrede, and Amendments 62 and 71, in the names of the noble Lords, Lord Polak and Lord Russell of Liverpool, and the noble Baroness, Lady Benjamin. In this, as ever, I must declare my interest as a state secondary school teacher.
The great thing about following the noble Baroness, Lady Benjamin, and the noble and learned Baroness, Lady Butler-Sloss, is that it is like somebody doing your homework for you. All the way through this stage of the Bill, we have talked about children as being separate victims, and we got the “Uncle Tom Cobley and all” reason back—in that, if you have to mention one, you have to mention all in this. I think we have to be specific. The noble Lord, Lord Ponsonby, and I went to the Lighthouse child house and saw its model. We saw how, when victims are treated specifically, we can get higher levels of prosecution, better health for them in future and save money in the outcome. Why would you not do that?
My Lords, I thank all noble Lords for their contributions to this debate. I first bring forth the Government’s Amendment 75, which requires that Welsh Ministers be consulted on any guidance on victim support roles under Clause 15, so far as the content relates to devolved matters. Victim support roles may operate across criminal justice settings and include devolved health and local authority responsibilities. It is therefore right and entirely in line with the devolution settlement that Welsh Ministers are properly and fully consulted and that the Welsh context is properly reflected in the resulting guidance that will flow from that. I warmly thank the noble Lord, Lord Ponsonby, for his Amendments 72 and 73, which relate to this matter. It is the Government’s view that government Amendment 75 covers that ground and that it is no longer necessary for the noble Lord to press his amendment in this respect.
Amendment 61 is about consultation with providers who are under a duty to collaborate. It would create a mandatory requirement for relevant authorities to consult those providing support to child victims during the formulation of their strategy under Clause 13. We have just heard moving contributions on children. As I said last week during the debate, the Government have been clear throughout Part 1 that the distinct needs of children should indeed be taken into account. That is reflected in particular in Clauses 13(4) and 15(5), which specifically relate to children, now defined as individuals under the age of 18. Those clauses, among other things, require the commissioners to make reasonable efforts to obtain the views of relevant victims, which will expressly include children. The guidance will underpin that duty and set out best practice for consulting child victims and those who provide services to such victims.
We have fully discussed children. I do not think I need repeat anything that I have already said. The position of children is very widely recognised. Therefore, in the Government’s view, Amendment 61 is overtaken by the provisions that already exist in the Bill and what has already been said on behalf of the Government in this respect.
I come to Amendment 79 in the name of the noble Baroness, Lady Lister, which relates to support for victims with no recourse to public funds. I thank her for tabling that amendment. The code is clear that victims are entitled to access services, including support services, under the code regardless of their resident status. As has been mentioned, there is also access to funding and support through the migrant victims of domestic abuse concession. That mechanism was expanded last February to give victims who are here as the partner of a worker or student a short period of lawful status, financial stability and support while they consider their future options. That is a major extension of the concession that was first introduced in 2012.
Of course, the Government have heard the concerns raised about the need for a longer-term solution in this matter. Basically, two points arise. First, this is not that easy to address in the context of the wider immigration system and immigration policy. We cannot ignore the fact that there is a risk of creating a route that is attractive to some who seek to shortcut or abuse the immigration system, rather than the genuine victims of domestic abuse whom we all seek to support. That has to be worked through. However, if I may speak frankly, while the Government will of course continue to support this important matter, which has been raised many times in recent years, resources are not unlimited and this must now take its place in the next spending review. No doubt the Government will then come to a view as to how resources are allocated.
In the meantime, there is support under the migrant victims of domestic abuse concession. There is also the support for the migrant victim scheme, which provides wraparound support, including accommodation, subsistence and counselling to victims with no recourse to public funds. As I understand it, that has supported over 1,200 victims since April 2021. I would like to go further towards the noble Baroness and others who have supported this amendment, but I hope that what I have been able to say will at least persuade her not to press it further.
I come now to Amendments 60, 64, 66 and 67, which variously relate to guidance defining specialist community-based services for victims of domestic abuse, sexual violence and so on, as well as the funding gap, a requirement that sufficient funding is provided annually to the relevant authorities to commission the relevant victim support services, and the establishment of cross-government “by and for” funding services. It is quite a large group, but your Lordships will have the general picture.
First, I very much thank the right reverend Prelate and others for their engagement on these amendments, along with representatives from the sector. Of course, the duty to collaborate under the Bill will need to have regard to the joint needs assessments, and the local strategies, which will be published, should include evidence of how the relevant authorities have carried out their needs assessments, as well as how those assessments have informed commissioning decisions.
I can commit that noble Lords will see in the draft guidance, shortly to be available, that it will set a clear expectation for local commissioners to share both a self-contained joint needs assessment document and joint strategies with the Ministry of Justice to enable the Government to bring together local intelligence on need. I very much hope and expect that this will provide the national framework for addressing the problems raised in this debate.
My Lords, Amendment 76 has been tabled to clarify that victims of crime can get the support they need without fear of legal action under confidentiality clauses, also known as non-disclosure agreements or NDAs. NDAs can and do serve a valid purpose to protect commercially sensitive information and deliver a clean break where parties seek closure on an issue, but they have been misused to make victims fear repercussions if they seek access to justice or support services. Reporting a crime to the police is already protected under common law, but the legal position is not as clear as it could be. The Government wish to avoid a situation where NDAs might be used to prevent victims telling support services and close family about criminal conduct that has happened to them.
I am therefore pleased to bring forward this amendment, which makes it clear in primary legislation that confidentiality clauses cannot be legally enforced to the extent that they prevent victims reporting a crime or accessing confidential advice and much-needed support. It sets out who a victim can make disclosures to and for what purposes, which includes the police, regulatory bodies, lawyers, support services, and a victim’s partner, parent, or child. However, to protect legitimate uses of NDAs, subsection (3) of the proposed new clause makes it clear that disclosure to those permitted third parties must not be for the primary purpose of releasing information into the public domain, because we want to avoid a situation where somebody, for example, uses a lawyer to front up the disclosure of confidential information when that is not justified.
My Lords, it is really a pleasure to respond to this group from these Benches, because there is real progress. It is important to record thanks to everybody who has made this progress happen. I very much welcome the clarification that the Minister has made in Amendment 76. The noble Baroness, Lady Brinton, is quite right, though, that this is a first step. Indeed, today a useful brief was sent to me and possibly other noble Lords from the Bar Council, which makes the point that the issue of non-disclosure agreements is ripe for legislative change. The Bar Council welcomes the Government’s intention to implement legislative reform and recognises that some NDAs are abusive in nature. NDAs cannot cover criminal acts, and under existing common-law protections many are already unenforceable, but those who are asked to sign them are not always aware of the relevant legal principles. When you have the Bar Council and everybody else on your side, you know that this is an important first step.
On the Government’s amendments, I welcome Amendment 85, as the noble Baroness, Lady Newlove, welcomed it. I thank the Minister and his team for listening and for bringing forward this amendment, which was aired in Committee very powerfully indeed by the noble Baronesses, Lady Watkins and Lady Newlove. Then, of course, there is a suite of amendments in the name of the noble Baroness, Lady Bertin. I was very pleased to be able to support these in Committee. These Benches are absolutely in favour of them; they have the support of the whole House. I know from the very long time ago when I was a Minister how much work goes into getting to this place. I congratulate the noble Baroness and say how much we are in favour of these amendments.
The noble Baroness, Lady Morgan, is absolutely right to be disappointed about the Government not accepting Amendments 87A and 88A. It is probably clear that we have not come to the end of this. The noble Baroness is quite right in nodding to say, “We have definitely not come to the end of this discussion about what needs to happen to support victims with requests for dealing with digital and other information, and providing the right kind of safeguards for them”.
The noble Baroness, Lady Meacher, is right, and she has our Benches’ support for her amendment. If there were to be a Division on this then it would be next week. Between now and then we need to look at what the Minister has said to see if we can push him a bit further than he has gone, and then maybe we could avoid that, but the noble Baroness needs to know that she has these Benches’ support, and probably that of the Liberal Democrats, if we need to take the issue further. All in all, we have made great progress.
I shall answer a couple of questions and make one clarification. I think it was the noble Baroness, Lady Lister, who said, “Come on now, when are the code and the protocol going to be available?” I am afraid that, at this point, I cannot advance matters further other than to say, according to my instructions, that the code will be available for parliamentary scrutiny this spring—I know that is not as precise as anyone would like—and that the protocol will be launched later this year. These matters are under the control of the Home Office, and we had a discussion earlier about the relationship between 102 Petty France and Marsham Street. That is as far as I can go at the moment, and I apologise to the noble Baroness that I cannot be more precise.
I am prepared, as always, to have a further exchange of views on Amendment 96. I am not sure we can take it much further but we are always ready to listen, since throughout the Bill we are dealing with the problem of striking a balance between effective immigration control and victim support, and unfortunately there are always trade-offs to be made.
To respond to my noble friend Lady Morgan about requests for relevant information, new Section 44A(6) requires that the request is proportionate. The authorised person must be satisfied that there is no other means of obtaining the information or, if there are such means, that they are not practicable. The decision to release the information ultimately lies with the third party, and that third party has their own obligation under the Data Protection Act and their own duties of confidentiality owed to the person concerned. Again, I respectfully suggest that, bearing in mind my noble friend Lady Bertin’s amendments, the balance between fair-trial rights and victim protection is effectively drawn in the result that we have arrived at. It is not perfect, I know, but it seems to be a practical solution to a very difficult problem.
I hope the Minister will forgive me for interrupting him, but I want to thank him for suggesting that we might meet to discuss Amendment 96 before we come back next week. Obviously, I would be delighted to have a discussion about that.
I am always happy to meet, but we might not get much further.
I just wanted to put on record that we have agreed that we will meet, and I welcome that.
My noble friend Lord Marks of Henley-on-Thames wanted to speak to these two amendments but is unable to be here today, for which he apologises.
In Committee, the Government’s position, which was entirely sympathetic in principle—the noble Earl is rarely unsympathetic—was that the Law Commission is going to consider this in any event, so we should wait for it to do so before pressing the matter further. However, my noble friend says that that is not good enough. There is no reason for a further report before proceeding with the provision of free legal representation and advice for rape victims. If we wait for the Law Commission then there will have to be a further consultation, but that is not necessary—Liberal Democrats do not say that consultations are not necessary lightly—and then there has to be the process of producing a report and then, finally, a Bill. All in all, that is a long delay on an issue on which the principle is uncomplicated and, in any event, conceded. We support these two amendments.
My Lords, I am grateful to the noble Lord, Lord Ponsonby, and, in her absence, the noble Baroness, Lady Thornton, for Amendments 77 and 78, which, as we have heard, seek to require the development of proposals for schemes to give victims of rape access to free independent legal advice and representation.
I agree that it is extremely important that victims are aware of their rights and confident in those rights, particularly when preparing for trial and when requests for their personal information are made. While it would be novel to provide access to free legal advice and representation for just one type of crime, we recognise that, if there is one category of people who are especially vulnerable, it is victims of rape and sexual offences. We also recognise that victims of these crimes are more likely to receive requests for sensitive personal information as part of an investigation, and that there are calls for independent legal advice to help victims with that situation as well.
That is why the Bill tackles the problem in a different way, by introducing measures designed to minimise requests for information, as my noble and learned friend Lord Bellamy explained in the previous group of amendments. Through the Bill we are placing a new statutory duty on the police to request third-party material relating to victims only when necessary, proportionate and relevant to a reasonable line of inquiry. Following the amendments tabled by my noble friend Lady Bertin, which the Government have accepted, there will also be a requirement that the Requests for Victim Information code of practice must state that the police and other law enforcement agencies should start an investigation with the presumption that requests for counselling notes are not necessary or proportionate.
My noble friend’s amendments also mandate that counselling notes can be requested by police only if they are likely to have “substantial probative value” to a reasonable line of inquiry. This higher threshold will ensure that police are not routinely requesting counselling notes and that the privacy of these victims is respected.
As I have said, we do not want to create a hierarchy of support by granting government-funded legal advice to victims of just one type of crime. Alongside that, there are some complex and sensitive considerations regarding the introduction of independent legal advice for such victims. In particular, we have to be mindful of the role of the victim as a witness in proceedings and avoid anything that might have an unintended impact on the defendant’s right to a fair trial. This concern emerged very explicitly from the pilot scheme run in the north of England. I direct that point particularly to the noble Baroness, Lady Hamwee, and, in his absence, the noble Lord, Lord Marks; we need to take account of the findings from that pilot, which expressed those concerns. A subsidiary but still important point is to consider the potential impact on timeliness as a result of another process being inserted into the system. That was another concern that arose in the pilot.
These are all far-reaching considerations which, I suggest, require expert input before any statutory measures are considered. The Law Commission’s review will consider all these factors, including—the noble Lord, Lord Ponsonby, may like to note—the impact of existing schemes in other jurisdictions. When it publishes its report later this year, its findings and recommendations on independent legal advice will provide us with the robust evidence base that we will need should we wish to go forward and develop the sort of policy proposals that the amendment points us towards. Therefore, it is right for us to wait for those findings.
There is a further point of principle which I ought to flag: it really is not appropriate to place a duty on the Secretary of State in primary legislation to develop policy, especially without any specification of what such proposals should entail and who is responsible for implementing them once they have been developed. Once again, it is much better that we await the Law Commission’s recommendations.
I know how important this issue is to noble Lords opposite, but I hope that I have given the noble Lord, Lord Ponsonby, sufficient pause as regards his original intention to divide the House. There are some good reasons why the amendments should not be pressed, which I hope I have been able persuade him of. I therefore very much hope that he will withdraw Amendment 77 and not move Amendment 78.
My Lords, I am not convinced by the noble Earl. When he opened, he acknowledged that this is an especially vulnerable group and that some cases have a case for novel funding arrangements. He talked about the possibility of unintended consequences of unfair trials—a comment about the pilot funding scheme. In other jurisdictions, such as the family court, there is funding for victims of domestic abuse. If a woman—and normally it is a woman—is a victim or potential victim of domestic abuse, there is funding available in that case as well. Given that this is such a vulnerable group, and since this is an issue of great importance to many Members of this House, I would like to test the opinion of the House on Amendment 77.
My Lords, although this has been a relatively short debate, it has been quite comprehensive. All noble Lords have spoken with brevity about these sensitive issues.
I will highlight two points. First, I pick up the point of the noble Lord, Lord Meston, about how any order made by the Crown Court should automatically be reviewed by the family court. That was a useful addition to the amendment, although I suspect my noble friend may be pressing the amendments as they are. Nevertheless, I thought it was an insightful point.
My other point about Amendment 91, on psychologists and people with professional expertise, is that the problems extend beyond experts. In family courts, I see McKenzie friends who clearly have their own agendas, and it is an issue with which one has to deal—but that is a tangent to the main points in these amendments. If my noble friend chooses to press her amendment, we will of course support her.
My Lords, we have before us various amendments that deal essentially with family justice. I will deal first with Amendment 91, which proposes that only experts regulated by the Health and Care Professions Council undertake certain psychological assessments. The Government entirely appreciate the aim of this amendment—something needs to be done. This problem probably extends to healthcare generally. In the Ministry of Justice, we have been in discussion with the Department of Health about the term “psychologist”, what it means, whether one should regulate it and so forth. The Government’s position is that only psychologists who are regulated should be undertaking psychological assessments in the family court.
The short point is that this is going to be better dealt with under the Family Procedure Rules than in primary legislation. In particular, in this Bill, for reasons of scope, you can deal with it only in relation to victims of criminal conduct. We need an across-the-board solution, worked out through the Family Procedure Rule Committee, to implement changes that would ensure that, where a psychologist undertakes any psychological assessment in private law children proceedings, they are suitably regulated and that that broader work encapsulates any other problems that arise in relation to unregulated experts. The position of the Lord Chancellor is that this matter should be undertaken now by the Family Procedure Rule Committee—which operates in very close collaboration with practitioners, judges and all those involved in the family law scene—to implement changes, rather than it being done through this primary legislation.
I fully understand the point that the Minister is making. Can he indicate whether this problem has now been referred to the relevant Family Procedure Rule Committee? If it has, I would hope that it would get urgent and speedy consideration. If it has not, when will it be?
There have been preliminary discussions with the committee but it has not formally started work. I cannot give the noble Lord a precise date, but I can say that there is a reserve power under Section 78A of the Courts Act 2003 which entitles the Lord Chancellor to require the Family Procedure Rule Committee to consider the point. In the Government’s submission, that is the way that this should be dealt with, rather than in this necessarily narrow Bill.
It would be extremely regrettable if the Family Procedure Rule Committee were to refuse to embark on this exercise, particularly in the light of the comments made in the House today and in the other place. It is clearly something that should be done. That is as far as I can reasonably go at the Dispatch Box. That is essentially our position on Amendment 91: let us take it down the route of the Family Procedure Rule Committee.
Amendment 83 brings us to Jade’s law and Clause 16. This is where one parent murders the other. It is a very specific situation, because you have got only one parent left. In all other situations that we are discussing, you have two parents. Amendment 83 concerns where the parent who has committed the murder is a victim of domestic abuse. That is the purpose of this. The Government’s position—and I think the noble Lord, Lord Meston, came quite close to saying the same thing—is that this is effectively already dealt with in the existing Clause 16. It does not suspend parental responsibility for an offender convicted of voluntary manslaughter where it would not be in the interests of justice to do so.
We are talking here about a Sally Challen-type case, if I may use that expression. The “interest of justice” test is one with which Crown Court judges are familiar in the context of sentencing guidelines. Engaging the test is a matter for judicial discretion, but certainly in those cases where the victim has lashed out after years of abuse, they are very likely to fall within this exception, and that is why we have provided for voluntary manslaughter.
It does not seem to the Government that we need any more formal provision in the existing Clause 16 to take account of the situation where the murderer has suffered domestic abuse, because that is already implicit in the clause. If it were the case that, for some reason, Clause 16 was nonetheless to bite, it does, as has been pointed out, provide a pathway for review by the family court. The family court is not going to take away parental responsibility from a mother who has lashed out, if I may use that expression. The Government’s view is we do not need Amendment 83: it is already fairly well covered. I take these points quite shortly because I think it is important to keep this debate fairly short.
My Lords, I will speak on behalf of my noble and learned friend Lord Bellamy. Government Amendment 90 would require the police to notify schools as soon as possible when they have reasonable grounds to believe that a child in their police force area may be a victim of domestic abuse. That means that all children who may be a victim of domestic abuse will receive the necessary support and relevant safeguarding interventions.
Domestic abuse is an abhorrent and sometimes fatal crime, yet it is far too common. It is high volume, high harm and high cost. We fully recognise the devasting impact that it can have on children and young people, which is why we are determined to protect and support better the victims of abuse, including children, and bring perpetrators to justice. The landmark Domestic Abuse Act 2021 acknowledged, for the first time, the appalling damage that domestic abuse can inflict on children and young people and recognised the damage caused to children who see, hear or experience the effects of domestic abuse.
Recognising children as victims of domestic abuse in their own right is a very important step. It helps to ensure that children themselves remain visible in the multi-agency response to domestic abuse. This government amendment will help us take this work one step further. It will legislate that each chief officer of police across England and Wales must ensure that arrangements are in place to notify schools when they have reasonable grounds to believe that a child may be a victim of domestic abuse.
This amendment places the notification scheme, widely known as Operation Encompass, on a statutory footing. It is already in operation across all 43 police forces in England and Wales on a voluntary basis. By enshrining the scheme in law, we can ensure that it is consistently applied across all forces. This will help improve early intervention and enable the most vulnerable children to be safeguarded from the harms of domestic abuse.
This Government are committed to supporting child victims and protecting them from domestic abuse. The amendment will be key in our efforts to do so. I therefore hope that the House will welcome it, and I beg to move.
My Lords, I support Amendment 90, which provides for the relaying of information to schools. Schools need accurate and prompt information about what is going on. They need to know, and understand, what is happening, or what is suspected. Therefore, I welcome the amendment. It is almost as important as the information going the other way—that is to say, schools relay information to local authorities and, where appropriate, to the police.
I am afraid to say that there are a few cases I have come across where schools, or individual members of school staff, have been reluctant to get involved in child abuse cases, or where there is suspected child abuse. Albeit this amendment provides for the information to pass the other way—from the authorities to the school—if it serves to do anything it may well encourage the passing of information in both directions.
My Lords, I have a genuine question. Of course, I support the amendment, but the wording here is
“if a member of the force has reasonable grounds to believe that a child who resides in the police area may be a victim of domestic abuse”.
If there is a situation where one of the parents calls the police, and there is what is called a “call-out”, that will be recorded, and that sort of information is made available to courts in particular circumstances. But would the child be seen as a potential victim of domestic abuse because the parents have made that telephone call because of a dispute between the parents?
Nevertheless, I support the duty to notify, but I wonder whether the Minister can answer that specific question.
My Lords, I am grateful to the noble Lords who have spoken in support of this amendment. I will deal, just briefly, with the points raised.
In answer to the noble Lord, Lord Ponsonby, a child is considered to have suffered the effects of domestic abuse even if they have not been the direct recipient of that abuse. That is why I made it clear in my opening remarks that it is as much about children who see, hear or experience the effects of domestic abuse as it is about a child who themselves have been on the receiving end of such abuse. It is all encompassing in that sense.
In response to the noble Lord, Lord Meston, and the noble Baroness, Lady Brinton, as I understand it the position at the moment is that the statutory safeguarding guidance, Keeping Children Safe in Education, outlines that all schools and colleges must have regard to their legal duty to safeguard and promote the welfare of children. However, as far as the noble Baroness’s specific question is concerned, I shall need to write to let her and other noble Lords know exactly how far we have reached in the process she outlined. I am afraid I do not have that information with me today.