Domestic Abuse Bill

Debate between Lord Garnier and Lord Marks of Henley-on-Thames

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

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

My Lords, this amendment, in my name and the names of my noble friend Lady Jolly and the noble and learned Lord, Lord Garnier, addresses an extremely serious issue that affects far more lives than noble Lords might have expected. Psychotherapists and counsellors are not in any way regulated by law. In opening a debate on this issue on 2 March last year, my noble friend Lady Jolly pointed out:

“The terms ‘counsellor’ and ‘therapist’ are not protected. All of us could call ourselves such”.


She also pointed out that there is

“no assurance of the level of training or competence … nor a redress system to access should something go wrong”.—[Official Report, 2/3/20; cols. 468-69.]

We should all be clear that this amendment is not a criticism of the work undertaken by many straightforward, honest and understanding therapists and counsellors up and down the country, who are dedicated to helping their patients or clients address difficult issues in their lifw and get through particularly troubling periods. Nothing I say is intended to disparage their commitment or undermine their work. However, it is a tragic reality that a combination of this lack of regulation and the cruel techniques of coercive control adopted by some who offer so-called therapy and counselling services leads to many—mostly young—lives being, quite literally, ruined.

There is a pattern to these cases of abuse: charlatan therapists or counsellors secure clients—usually young and always troubled people—and proceed, over a period, to take over their life. Sadly, the typical case involves such so-called counsellors persuading their clients, quite without foundation in fact, that they have been dreadfully wronged or abused by their parents or families during their childhood. They generally implant entirely false memories in those clients. As the clients come to believe, under an insidious form of persuasion, that these false memories represent reality, they are led to blame their parents and families for all that has gone wrong in their life and all that troubles them. In this way, the clients involved are gradually alienated from their parents and families in a sinister process of coercive control.

The well-known and well-documented phenomenon of transference, originally explored by Sigmund Freud in the 1890s, plays its part in this sad process. It involves the clients projecting on to the therapist or counsellor feelings that they originally held towards a parent or other important figure in the client’s early life. The clients’ parents and other close family and friends are supplanted by the counsellor in the client’s affections by a learned dependence on them.

In our debate last March, I said that such clients are

“brainwashed by unscrupulous and controlling individuals. These charlatans play on their clients’ suffering, deluding them into a false belief in their treatment”—[Official Report, 2/3/20; col. 477.]

Everything that I have read and learned since that debate in relation to this issue and in preparing for this debate has strengthened my concern not only that that description was fair but that I underestimated the extent of the problem.

These issues have been widely recorded in the press and I will not detail them now, but I will repeat a question posed in the Daily Telegraph not long ago:

“What made two seemingly happy young women from loving homes sever all contact with their families and friends, renounce their inheritances and vanish into thin air?”


The journalist investigated how

“a self-styled ‘personal development coach’ digging for ‘forgotten’ childhood memories opened a door to catastrophe.”

The article went on to describe how a rogue counsellor had ruined two young lives in the way I have described, pointing out that there had been absolutely nothing the courts could do about it, given that the clients were adults—although they were young. The law offers no protection whatever for the victims of what is so clearly abuse by coercive control. The fact that such counsellors often charge their clients substantial fees, as the rogue counsellor did in those cases, only serves to make the matter worse.

Our amendment would introduce the following offence:

“Controlling or coercive behaviour by persons ... providing or purporting to provide psychotherapy or counselling services”.


The proposed offence is closely modelled on Section 76 of the Serious Crime Act 2015, which covers “controlling or coercive behaviour in an intimate or family relationship”. The definition of coercive and controlling behaviour in that Act is mirrored in this amendment, and the definition of the required relationship for the Act is mirrored in Clauses 1 and 2.

As the noble Lord, Lord Astor of Hever, who would have liked to speak today but is unable to do so, said when we debated this issue last March:

“Section 76 of the Serious Crime Act covers domestic abuse. The Government accept that individuals can be coercively controlled, and they have rightly made it illegal for a spouse, partner or parent to coercively control somebody with whom they have a relationship—that is an imprisonable offence. However, in the case of coercive control, the law does not apply equally to everyone. A person coercively controlling their daughter would be breaking the law, but the same person coercively controlling someone else’s daughter is not covered by the law. There does appear to be a gap in the law, so will the Government look into this?”—[Official Report, 2/3/20; col. 472.]


The logic of that question is inescapable. This amendment is directed to filling the gap identified by the noble Lord, Lord Astor. The gap has been filled by legislation in France, Luxembourg and Belgium. The French litigation broadly criminalises persistent or repeated pressure on a person which abuses a vulnerable person’s weakness or abuses a person in a state of psychological dependency resulting from serious or repeated pressure or techniques used to affect their judgment in a way which is seriously harmful.

I have been grateful for the support of the noble Lords, Lord Astor of Hever, Lord Fairfax and Lord Dannatt, and my noble friend Lord Alderdice and others, who have not been able to speak tonight. Numbers of noble Lords have told me that they know families and young people who have fallen victim to the actions of charlatan psychotherapists who would be liable to be prosecuted for the new offence proposed by this amendment.

My hope is that the Government will agree to legislation reflecting this amendment and that it will be supplemented in the future by provisions requiring psychotherapists and counsellors to be licensed and regulated, with a register of qualified members, recognised qualifications and a clear statement of ethical standards. Meanwhile, serious cases where charlatan psychotherapists and counsellors are guilty of coercive control which is plainly abusive should be met by their prosecution for a criminal offence, as set out in this amendment. I beg to move.

[Lord Garnier (Con) [V]]

My Lords, I apologise for not taking part on Second Reading, although I have read the Official Report. I also apologise for keeping my noble friend the Minister, new to his job, a bit longer at the crease.

Amendment 141 proposes a new clause that is within the scope of the Bill, but its value is not dependent on the Bill. The wording and effect of Amendment 141 is self-explanatory but, if it needed any further elaboration, the noble Lord, Lord Marks of Henley-on-Thames, has just provided it in his excellent speech. I cannot improve on what he said, but now is the moment when Parliament must at last legislate to outlaw the quack counsellors who predate on vulnerable people through controlling or coercive behaviour, and to provide some sort of protection to their victims or intended victims.

I have been concerned about these quacks and trying without success to get the Government to legislate for some years. I worked with Oliver Letwin and Tom Sackville, two former Ministers, as well as parliamentary counsel and Ministry of Justice officials with the support and encouragement of David Cameron, who had a constituency interest in the matter. I spoke about these quacks at Report on the Modern Slavery Bill in November 2014 and the Serious Crime Bill in February 2015 when I was a Member of Parliament, and then again in your Lordships’ House on 2 March 2020 in the debate on the unregulated treatment of mental health, initiated by the noble Baroness, Lady Jolly. Now, thanks to the noble Lord, Lord Marks, the noble Baroness, Lady Jolly, again, and the other contributors to this debate—as well as my noble friend Lord Astor of Hever, who spoke in the debate last March about the Serious Crime Act—we are making real progress.

We have laws to protect children and those under a mental incapacity through intellectual impairment, disability or the effects of old age. We can prosecute those who dishonestly take old and frail people’s money, but we leave unprotected adults who may succumb to pressure exerted on them by others of malevolent intent because their exploitative activities currently do not come within the criminal law.

From the outset, I have had in mind some young, adult women whose experiences were brought to my attention by their parents and families. In essence, they had been brainwashed or suborned by quack counsellors. They persuaded these young people to break off all contact with their families, infected them with false memories and got them to pay fees for the so-called counselling. Some of these young women were well-off and suggestible but all of them, for no apparent reason, broke off all contact with their families.

As the noble Lord, Lord Marks, has just said, France, Belgium and Luxembourg have laws to criminalise the behaviour of predatory charlatans who exploit others in a state of emotional or psychological weakness for financial or other gain. It must be assumed that their laws do not conflict with those articles of the ECHR that protect the right to private and family life, the right to freedom of expression and association, and the right to freedom of thought, conscience and religion. To take the French example, in that jurisdiction it is an offence punishable by imprisonment and very heavy fines to abuse the ignorance or state of weakness of a minor or of a person whose particular vulnerability due to age, sickness or infirmity, to a psychological or physical disability or to pregnancy is apparent or known to the offender. It is also an offence to abuse a person in a state of physical or psychological dependency resulting from serious or repeated pressure or from techniques used to affect his judgment in order to induce the minor or other person to act, or abstain from acting, in a way seriously harmful to him.

Amendment 141 is clearly different but, I believe, as useful. One way of considering whether the proposed defence in Amendment 141 would work is to ask oneself the following questions. Would it be prosecutable in theory and in practice? Could each of the elements of the offence be proved in a real-life example? Would the measure deal with the mischief that was identified, and would it catch no one else? The answer to those questions is yes. How would it affect partners, husbands, wives, teachers, gurus, salesmen, priests and employers, all of whom are likely to have power and influence? It need not do so. Would it allow the mentally capable who want to give away their fortunes and leave their families to do so? Of course it would. Would it make sufficiently clear what was criminal behaviour and what was not? Would it comply with the European Convention on Human Rights? Yes, it would. What effect would it have on religious freedom, or freedom of expression or association? In my view, none at all.

The victims of these bogus therapists have been waiting far too long for Parliament to help them. The amendment is humane and practical, and it has nothing whatever to do with party politics. If the laws of France, Belgium and Luxembourg can protect the people that this amendment seeks to protect, the law of England can and ought to do so as well. Amendment 141, or something like it, should be added to the Bill.

Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Garnier and Lord Marks of Henley-on-Thames

Report stage (Hansard): House of Lords
Monday 24th June 2019 Lords Chamber

[Lord Garnier]

My noble friend has reminded me that I should have declared an interest as a practising barrister, given that that may not always be clear.

[Lord Marks of Henley-on-Thames]

My Lords, the noble and learned Lord, Lord Garnier, has reminded me that perhaps I should make the same declaration—so I do so now.

We support Amendments 22 to 24, not only for the reasons given by my noble friend Lord Beith but for those given earlier in the debate, in particular by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick. We regard it as very important that these rules should ensure a proper balance between the Lord Chancellor and the Lord Chief Justice: between the Executive and the legislature. I also take the two points made by the noble and learned Lord, Lord Mackay. First, there are of course equivalent provisions in the existing rules, but I agree entirely with the noble and learned Lord, Lord Garnier, who pointed out that that should not be treated as a precedent, and that if there is anything wrong with the earlier rules, perhaps they should be changed. If the 2005 Act overlooked those changes, perhaps it should not have done so, because that was the point at which the changes should have been made; that is, when the balance between the Lord Chancellor and the administration of justice changed.

I also suggest that what the noble and learned Lord, Lord Mackay, said was telling. He said that the difference between consultation and concurrence is that where you have consultation, the Lord Chancellor will go to the Lord Chief Justice and check that the change in the rules is okay with him—or that is what he hopes he would do—and then he would go back to make the rule. However, it seems to me that the need for concurrence in these rules is dependent on the Lord Chancellor finding out that the rules are okay with the Lord Chief Justice and the requirement for concurrence is to determine the position where they are not okay with the Lord Chief Justice, and that is why we have the concurrence requirement. I will give way to the noble and learned Lord.

Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019

Debate between Lord Garnier and Lord Marks of Henley-on-Thames

Tuesday 29th January 2019 Grand Committee

[Lord Marks of Henley-on-Thames]

The noble Lord has understood it absolutely correctly and has plainly made the point more eloquently than I did. It was the point I made when I mentioned that the noble and learned Lord had accepted that that was how the Government’s impact statement worked. The noble Lord is right to draw the distinction between the,

“impact on business, charities or voluntary bodies of this instrument is, on balance, expected to be positive when compared to making no changes to retained EU law”,

and the real meat of this, which is in the last part of the paragraph:

“However, as compared to the pre-Exit position, common law rules on jurisdiction provide for a discretionary rather than mandatory stay in the case of parallel proceedings. This creates an increased risk of parallel proceedings”—


precisely the point I was making—

“whether the court in the United Kingdom is seised first or second. This could increase the number and complexity of disputes before the courts and the cost of litigation for parties. Common law rules also involve a less efficient mechanism for recognising and enforcing judgments than using existing EU rules deriving from the Brussels regime, which will cost those seeking to have their judgment recognised in the UK more money and time”.

Addressing the Committee, I attempted to add my further point that it is not just the cost to litigants who go through all this but the attractiveness of the United Kingdom as a location for doing business that suffers from the fact that you cannot rely on a uniform system.

Before closing, I simply ask this. We are in this dreadful position of being a very short time away from the risk of a no-deal Brexit. As Sabine Weyand put it yesterday—I make no apology for her being blunt, because I think she was right to be—we could fall into it “by accident” rather than on purpose. What a travesty for a Parliament almost entirely opposed to a no-deal Brexit to be at risk of forcing our country into this calamitous outcome by accident—but that is where we are. So I ask the noble and learned Lord: in the circumstances, given that almost everybody accepts that this reciprocal set of arrangements for the justice system is of such crucial importance to our functioning legal system, what talks have there been at Secretary of State for Justice level with other members of the European Union to try to preserve some element of a reciprocal system that will replace what we have, even if we walk into this catastrophe by mistake?

[Lord Garnier (Con)]

My Lords, I seek your Lordships’ indulgence. I was a little late to this sitting of the Committee because I was detained listening to the wonderful oration of the noble Lord, Lord Foulkes, in the Chamber. He made a number of interventions.

--- Later in debate ---

[Lord Garnier]

We are not only in danger of talking about forum non conveniens but interventus illicitus. I will advance one simple point. I entirely accept what my good friend, the noble Lord, Lord Marks, has said on the unfortunate state of affairs we are in, and would be in were we to have a no-deal departure from the European Union. Surely the whole point of today’s exercise is to anticipate that and to ensure we have mechanisms in place to mitigate the consequences he has so correctly spelled out. Yes, it is all very sad and much to be regretted, but it would be even more to be regretted if my noble and learned friend Lord Keen were unable to move this Motion to its sensible conclusion.

[Lord Marks of Henley-on-Thames]

I will simply respond to that, because in a sense it is an intervention on me. I accept that this is conditional in the sense that the noble Lord mentions. However, my fundamental point was that the importance of this aspect of no deal has been woefully underestimated in considering how dangerous the concept of no deal is. To that extent, I regard the points I have made in highlighting that danger as valid, because no deal is profoundly to be shunned.