Domestic Abuse Bill

Debate between Baroness Hamwee and Lord Mackay of Clashfern

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

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

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

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

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

[Baroness Hamwee (LD) [V]]

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

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

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

Extradition (Provisional Arrest) Bill [HL]

Debate between Baroness Hamwee and Lord Mackay of Clashfern

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Thursday 5th March 2020 Grand Committee

[Baroness Hamwee]

My Lords, I did not expect it to go in this direction, but I thank the noble Lord for his explanation. I am left a bit thrown and not entirely satisfied. I decided that I would not bring my iPad into Committee to scroll up and down through the 2003 Act; I reckoned it could wait until later, but clearly I should do so.

If this provision is to mirror the 2003 Act, which talks about bringing someone before a court as soon as practicable and in any event within 48 hours, that still does not meet the provisions of new Section 74A(4) because, as I said, if someone is picked up on a Friday afternoon, 48 hours lands them on a Sunday. There is an important point of principle in this: the way it operates—the noble Lord used the term “workability”—in terms of the position of the Executive and the work it has to do with the police and the rights of the individual who is the subject of this. That is why the judiciary is involved: to ensure that that person’s rights are properly protected. It looks as if the noble and learned Lord, Lord Mackay, wants to intervene.

[Lord Mackay of Clashfern]

I shall wait until the noble Baroness has finished.

[Baroness Hamwee]

I think I pretty much have finished.

[Lord Mackay of Clashfern]

I think the position is that, as times have changed and we are more modern than we once were, a judge is now available at all times to deal with this matter. Therefore, it is not necessary to leave out weekends or bank holidays because the reason that was put in was that the judge might not be there. Now, under the rules of the system, the person can have his case before the judge in the holidays because a judge is always there. Therefore, it needs to be changed to take account of that. That is my understanding. I hope the noble and learned Lord, Lord Judge, agrees with me.

--- Later in debate ---

[Lord Mackay of Clashfern]

My Lords, I will say a word on Amendment 9. I obviously agree with what has been said by a number of noble Lords about it. The views of the noble and learned Lord, Lord Judge, suggest that a Minister putting forward a list would have to be mightily careful that the list was of all good, or at least equally good, countries. If there was a doubtful one it would have to be separate. That lesson should be taken to heart. It is very unwise to have a great big list where we are not sure about two or three countries, because we would just lose the whole lot. I suspect that we may be faced in due course with a fair group about which we have some knowledge already. I do not think that that has anything to do with the Bill, but it might be a consequence of granting this power. I imagine that any Minister contemplating this who wished to be successful would be very careful to leave a country out of a list of very good countries and have it in a separate list if he thought that it would risk the others.

I have my own view on how judges are appointed in the United States and am rather anxious that nothing of the sort should appear here. On the other hand, judges in the United States, although they may be appointed for various reasons, have responsibility as judges. The point about this matter is that extradition to the United States or any other country will be decided by a judge, though ultimately subject to the discretion of the Home Secretary. The judiciary here will be in charge of that and obviously the degree to which the explanation given by the United States carries weight will be quite important.

[Baroness Hamwee]

My Lords, this is an interesting group. With regard to the United States and one of the Five Eyes seeing things a bit differently, if this matter comes back on Report, as it may, it would be helpful if the Minister could explain to the House how the human rights criteria that will be applied at the judicial stage would apply in any given situation without using specific cases. That is part of the whole picture.

On Amendment 6 and my suggestion that the word “vary” be deleted, we are told that this is to future-proof the arrangements in case one part of a territory secedes. I find it difficult to envisage all this and I do not see why the Government would not in that situation just delete the original but add the substituted territory. On Amendment 7, I confess I need to read properly what the Minister said. On the criteria listed in Amendment 10, the Minister said that Parliament would have to reject a territory if the criteria were not met. Actually, that is not the way round the amendment is written. Parliament would not be required to reject it but a reference to a territory could be added “only if”. I think those are different; these are on minima.

However, I see absolutely no down side to agreeing the amendment which at the start I said was the most important of this group with respect to the position of the United States. The justification proposing it is that it is not common practice. That does not mean that it is good practice in every situation. I am absolutely with the noble and learned Lord, Lord Judge, who said that it is entirely consistent with support for the Bill. I will not follow his cricketing analogies because I will probably get them wrong again. As I said at Second Reading, we should not be in the business of bulk orders, if I may put it that way.

The Minister said that the affirmative resolution procedure gave Parliament the opportunity to scrutinise. Scrutiny means different things to different people, but it does not mean that you go straight from scrutiny to the remedy you are seeking. I do not think that it is an adequate response to an amendment which I really do not think would cause, as has been said, much more than a few more pieces of paper—a little more typing and standing up and sitting down. We will come back to this at the next stage. It ought to be such an easy one for the Government to concede to divert us from other amendments. For the moment, I beg leave to withdraw Amendment 6.