Domestic Abuse Bill

Debate between Lord Parkinson of Whitley Bay and Lord Marks of Henley-on-Thames

Report stage
Wednesday 10th March 2021 Lords Chamber

[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.

Counter-Terrorism and Sentencing Bill

Debate between Lord Parkinson of Whitley Bay and Lord Marks of Henley-on-Thames

Report stage & Lords Hansard
Wednesday 3rd March 2021 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful to all noble Lords who spoke in this short debate. The amendment would require a trial of the issue as to whether there is a terrorist connection to an aggravated offence. I am grateful to the noble Lord, Lord Marks, for the way in which he set out his amendment, but I am afraid we feel that it would represent a fundamental departure from existing processes—a significant divergence from practice within the wider criminal justice system—and it is therefore not an amendment that the Government consider necessary or appropriate.

It may be helpful if I first briefly recapitulate why the Government are making the changes that we propose in the Bill. The noble Lord, Lord McCrea, gave a good summary. Clause 1 will expressly require the courts, in cases where it appears that any non-terrorism offence with a maximum penalty of more than two years was committed in the course of an act of terrorism, or for the purposes of terrorism, actively to consider whether the offence was committed with a terrorist connection and should be aggravated as such. At present only specified offences can be so considered. Closing this loophole will make for more effective and flexible legislation, reflecting the fact that terrorist offending takes a wide variety of forms.

The noble Lord, Lord Marks, gave some examples of offences that are and are not covered. It might be helpful to include further examples. Various offences under the Firearms Act 1968 are not currently covered, including possessing a firearm with an intent to endanger life; as are offences under the Criminal Damage Act 1971, including destroying or damaging property with an intent to endanger life, and arson. There are many more, but I hope that provides an illustration of some of the offences that we think ought to be considered, if needed.

These changes will also ensure that the consequences of a terrorist connection are applied consistently to all offenders. The identification of a terrorist connection by the courts has a wide-ranging impact, as the noble Lord noted. It must be treated as an aggravating factor when sentencing, helping to ensure that terrorist offenders receive punishment befitting the severity of their offending and the risk that they pose to public safety. It will also result in offenders being subject to the registered terrorist offender notification requirements following their release from prison, which supports the police to manage their risk more effectively.

Finally, under the Bill, these offenders will be subject to a minimum of 12 months on licence following their release and will be eligible to have certain licence conditions imposed on them to assist in the effective management of their risk. I emphasise that both the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, and the Crown Prosecution Service expressed their strong support for this change. In fact, Mr Hall stated in his oral evidence to the Public Bill Committee in another place that this change, out of all the measures in the Bill, would make the most substantial difference to public safety.

Having set out the background, I will address the substance of the noble Lord’s amendment, which proposes a significant change to the process by which the courts in England and Wales, and in Northern Ireland, determine a terrorist connection at the point of sentencing. This process is well-established, having been in successful operation for more than a decade since the provisions of the Criminal Damage Act 1971 came into force. It is also consistent with the wider criminal justice system.

Under the existing process, courts are required to apply the criminal standard of proof—beyond reasonable doubt—when determining whether an offence has a terrorist connection. The court will make this determination on the basis of the usual information before it for the purposes of sentencing—that is, the trial evidence or evidence heard at a Newton hearing, if necessary, following a guilty plea—and take into account any representations by the prosecution or defence, as well as any evidence heard.

Furthermore, in England and Wales, and in Northern Ireland, it is the standard approach for the judge, rather than the jury, to determine the presence of aggravating factors as part of the sentencing function. To provide one example, Section 66 of the Sentencing Act 2020 requires the court to aggravate a sentence for an offence if it was motivated by hostility based on certain protected characteristics, such as race or sexual orientation. The judge will determine such a finding as part of the sentencing. The terrorist connection provision works in exactly the same way. This very issue was debated by your Lordships’ House in 2008, when the terrorist connection provisions were first enacted. It was concluded then that the existing process is appropriate and the reasons that I will now outline still stand.

During the passage of the Counter-Terrorism Act 2008, the then Government set out that, as part of their consultation on that Bill, they considered whether the determination of a terrorist connection should be made by the jury, rather than the judge at sentencing. That included discussing the option with experienced prosecutors in this area. It was concluded, however, that there were significant practical issues in taking that approach. For example, having to prove the terrorist connection as part of the trial would lead to lengthy diversions, were the defence to argue that the action of the suspect did not fall within the definition of terrorism. Such an approach would divert the prosecution from its primary aim to secure swift justice for the substantive offence—that is to say, securing a conviction or freeing the individual on trial—and would unnecessarily create significantly longer terrorism trials.

Alternatively, if the jury were to be responsible for determining whether there was a terrorist connection as part of a sentencing exercise after the trial, it would have to be summoned to make such a determination following a guilty plea. This would be entirely novel and run counter to well-established sentencing procedure. We therefore strongly believe that it would not be right to put it in the Bill. It was concluded then, as we maintain now, that sentencing is properly a function for the judge.

That is why the Government cannot accept the amendment of the noble Lord, Lord Marks: it would impose unusual requirements on the finding of a terrorist connection, deviate significantly from well-established practice and, in doing so, put that process out of kilter with the courts’ considerations of other similar aggravating factors. The current system provides adequate safeguards against the erroneous finding of a terrorist connection. A judge who has determined that the offence was committed with a terrorist connection is required to state in open court that that is the case. That determination is capable of being appealed to the Court of Appeal. For the reasons outlined, despite the noble Lord being minded to do otherwise, I hope that he will see fit to withdraw his amendment.

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

My Lords, I heard what the noble Lord, Lord McCrea, said, and he seemed to accept that the aggravating factor should be proved to a court, on admissible evidence, to the criminal standard of proof. He did not answer the point that there ought to be a trial of the issue.

The noble Lord, Lord Ponsonby, had sympathy for the principles behind our amendment. He preferred the idea of a Newton hearing before a judge to the possibility of jury trial to determine a terrorist connection. That is a compromise position that is allowed for in my amendment, where the interests of justice require that there should not be a jury trial. The important thing is that this issue should be tried on evidence, not simply permission for there to be evidence, if the judge deciding the issue decides to have evidence; or, otherwise, that the court must listen to representations—that is submissions, which are necessarily partial.

The reason our amendment is framed in the way it is is that we believe in trial by jury. Since the aggravation of having a terrorist connection changes the whole nature of the offence, to have that issue tried by jury is, we say, consonant with our way of doing criminal justice and consonant with the way we have always conducted criminal trials.

The Minister suggested that this amendment represented a significant divergence from the criminal justice system. Most of his speech was, with respect, devoted to establishing that point. However, the Bill and much of the counterterrorist legislation of the last few years have involved such divergence. What is unique about the Bill is that the aggravating factor can raise a pretty commonplace offence into an offence of terrorism, with very severe consequences. I have heard nothing to answer the point that establishing that terrorist connection in a trial, on admissible evidence, before a jury or, in suitable cases, a judge, should be the way to proceed.

Nothing that I have heard from the Minister or the noble Lord, Lord McCrea, allowed for the possibility that an offender guilty of only the basic offence, but not guilty of committing an offence with a terrorist connection, would nevertheless be sentenced following a judge who heard only representations on the basis of the aggravated offence, with all the consequences that that would have. That is what runs counter to our criminal justice system.

Our point is limited and principled. The Government have made no concession to our principle at all. We say that there has to be a trial of the issue, not at the same time as the trial of the basic offence, but afterwards. To establish that principle, I wish to test the opinion of the House and have my voice heard when the voices are counted.

Counter-Terrorism and Sentencing Bill

Debate between Lord Parkinson of Whitley Bay and Lord Marks of Henley-on-Thames

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 26th January 2021 Lords Chamber

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I thank the noble Lord, Lord Marks of Henley-on-Thames, for reminding the Committee of the two terrorist offences at Fishmongers’ Hall and at Streatham, which formed the backdrop to this Bill. They were rightly mentioned at Second Reading; it is correct that we have them in our minds as we embark on Committee today.

Clause 1 addresses a limitation in the existing legislation to ensure that no terrorist-related offenders fall through the cracks. As the noble Lord, Lord Marks, set out, at present the courts are expressly required to consider whether there is a terrorist connection at the point of sentencing only in relation to a defined list of non-terrorism offences set out in Schedule 1 to the Sentencing Code for England and Wales and Schedule 2 to the Counter-Terrorism Act 2008 for Northern Ireland and Scotland.

Clause 1 removes this defined list of non-terrorism offences from Schedule 1 to the Sentencing Code and Schedule 2 to the 2008 Act. This is an important step, though not quite as radical as the noble Lord, Lord Marks, suggests. It will expressly require the courts, in cases where it appears that any non-terrorism offence with a maximum penalty of more than two years was committed in the course of an act of terrorism or for the purposes of terrorism, actively to consider whether the offence was committed with a terrorist connection and should be aggravated as such. Closing this loophole provides a necessary flexibility in the legislation, reflecting the fact that terrorist offending takes a wide variety of forms.

On Second Reading we noted that, sadly, the terrorist threat is constantly evolving; offenders prove themselves rather inventive, alas, and it is right that the legislation keeps pace. I am glad for my noble friend Lord Naseby’s support, who sadly spoke with personal experience. I also welcome the support of the noble and learned Lord, Lord Falconer of Thoroton, for this important step in expanding the list of offences.

This clause also ensures that the consequences of a terrorist connection are applied consistently to all offenders. The identification of a terrorist connection by the courts has a wide-ranging impact. First, it must be treated as an aggravating factor when sentencing. This will help ensure that terrorist offenders receive punishment befitting the severity of their offending and the risk they pose to public safety. Secondly, the change will also result in the offenders being subject to the registered terrorist offender notification requirements following their release from prison, meaning that they are required to notify specified information to the police. That information supports the police to manage an offender’s risk on release much more effectively. Thirdly, once the Bill receives Royal Assent—as we hope it will—offenders convicted with a terrorist connection will be subject to a minimum of 12 months on licence following their release and will be eligible to have certain licence conditions imposed on them to assist in the effective management of their risk, for instance polygraph testing.

It might help the Committee if I offer a hypothetical example to demonstrate how this change will work in practice, as noble Lords asked for. Today, someone convicted of possessing a firearm with intent to endanger life would not be guaranteed to have their sentence aggravated, even where the court has identified a terrorist connection. They would also not be subject to the restriction on early release provisions or the registered terrorist offender notification requirements upon release. That is because this offence is not listed in Schedule 1 to the Sentencing Code or Schedule 2 to the Counter-Terrorism Act 2008. Clause 1 will address this inconsistency in the current legislation by requiring the court to consider whether there is a terrorist connection and treat it as an aggravating factor if such a finding is made. It will also ensure that appropriate risk management tools, such as the notification requirements, apply following the offender’s release from prison.

I emphasise that, as is the case currently, courts will be required to apply the criminal standard of proof—that is, beyond reasonable doubt—when determining a terrorist connection at the point of sentencing. The noble Lord, Lord Thomas of Gresford, asked about this. Judges routinely have to consider whether offences which they are sentencing have been committed with aggravating factors and, in doing so, they apply the criminal standard of proof and must be satisfied that they are made out beyond reasonable doubt. I hope that addresses the question that he and others raised about the process.

It is also important that the Committee notes what the Independent Reviewer of Terrorism Legislation said in public about the Bill and these provisions, including during the oral evidence that he provided to the Public Bill Committee in another place. Asked by my honourable friend the Member for Derbyshire Dales which provision in the Bill, in his professional view, would have the biggest effect on making our citizens safer, he said that it was this one:

“That is a really welcome change, which makes people safer.”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; col. 16.]


The Bill contains a comprehensive package of measures, of which this change is an important part. It will help to establish confidence in the sentencing framework by ensuring that those who commit terrorist-related crimes receive punishments commensurate with those crimes, spend longer in custody and are subject to appropriate risk management processes following their release.

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

My Lords, I should have opened my earlier speech by welcoming the noble Lord, Lord Wolfson of Tredegar, to his position and to the House. He has been extremely helpful to me in relation to the Domestic Abuse Bill and its provisions and I have seen him virtually on a number of occasions, so I have not completely appreciated that this is the first time that we have been together on a Bill. I also thank all noble Lords who have spoken and in particular the noble Lord, Lord Parkinson, for his response.

I listened carefully to all that the noble Lord, Lord Naseby, said. Of course we all, throughout the House, deplore terrorism and agree that it is crucial that we make our country safe from terrorism and treat terrorist offences with extreme severity. The point that I made, echoed by my noble friend Lord Thomas and, to a certain extent, by the noble and learned Lord, Lord Falconer, is that, in the effort to set up that severe framework, we must not abandon important principles of English criminal justice.

The noble Lord, Lord Parkinson of Whitley Bay, has not answered the point made by me and by my noble friend Lord Thomas and, to a lesser extent, by the noble and learned Lord, Lord Falconer, that the fact-finding process by which the aggravation of an offence carrying a sentence of more than two years’ imprisonment is to be proved has not been defined in the Bill, is taken out of the hands of the jury by the Bill and put into the hands of the judge, and does not satisfy the basic requirement of English law that the findings of fact about an offence are for the jury, and the sentencing is for the judge.

Of course I take the point made by the noble and learned Lord, Lord Falconer, that the judge has discretion in many cases—including the offence of murder, which the noble and learned Lord mentioned—to increase or reduce a sentence in accordance with his view of the evidence. However, that does not answer the central point that what we have here is the creation of a raft of new aggravated offences, and the position that it is for the judge alone to decide whether he is dealing with an aggravated offence or a basic offence; and the basic offence can be quite a minor offence in general terms.

The noble Lord, Lord Parkinson of Whitley Bay, has not answered the question from my noble friend Lord Thomas as to whether there would or would not be a Newton hearing. He has not answered the noble and learned Lord, Lord Falconer, about how the judge makes a determination that the offence is to be treated as aggravated. I invite the noble Lord to go back and discuss with his colleagues in government how this point can be dealt with so as to ensure that the aggravated offence is either charged, tried and convicted in accordance with our principles of law by the jury, or how it is to be determined on proper evidence, if not by the jury then by the judge.

The clause as it stands is unacceptable. For that reason, I maintain the questions that I have about it.