Counter-Terrorism and Sentencing Bill
Lord Wolfson of Tredegar ExcerptsThursday 11th March 2021
(3 years, 8 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Sentencing Bill 2019-21 View all Counter-Terrorism and Sentencing Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 169-I Marshalled list for Report - (26 Feb 2021)
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, as the UK Government have made clear throughout all stages of the Bill, we are committed to working closely with the devolved Administrations on this legislation to ensure that the important changes made by the Bill will make the UK as safe as possible from the threats posed by terrorism.
While terrorism and national security are reserved matters, some of the provisions of this legislation engage the Sewel convention, both in Scotland and in Northern Ireland. I am pleased to confirm to the House that the Scottish Parliament, on the advice of the Scottish Government, has passed a legislative consent Motion in support of the Bill. However, despite lengthy and continued engagement with the Northern Ireland Executive, it has decided not to proceed with recommending that legislative consent be given for the Bill by the Northern Ireland Assembly.
I am grateful for the collaborative engagement from officials in both the Scottish Government and the Northern Ireland Executive’s Department of Justice, which has provided essential support in the development of this legislation. While on this occasion legislative consent has not been secured from the Northern Ireland Assembly, I reassure noble Lords that the UK Government will continue, as they always have done, to engage with the Northern Ireland Executive and seek legislative consent support for all future Bills which engage the LCM process in the Northern Ireland Assembly. On behalf of my noble and learned friend Lord Stewart of Dirleton, I beg to move that the Bill be read a third time.
Lord Wolfson of Tredegar (Con)
I would like to take a brief opportunity to thank noble Lords. We have limited time, but I want to give some thanks for their interest and contributions thus far to the progress of the Bill. I am grateful to noble Lords across the House who have contributed eloquently to the debates on Second Reading, in Committee and on Report.
Some strong and differing opinions have been expressed on certain provisions in this legislation. I am grateful for the scrutiny that that has brought, and especially for the co-operative and constructive spirit in which the debates have taken place. I am equally grateful for the broad support that most of the measures in the Bill have received so far.
I particularly thank, at this point, noble Lords from the Labour and Liberal Democrat Front Benches, who contributed a number of important interventions to debates on measures in the Bill, particularly on polygraph examinations and the work to deradicalise and rehabilitate terrorist offenders in the prison estate. I am especially pleased that so many noble Lords found the discussion in the House, and the complementary briefing sessions on these subjects, both thought-provoking and helpful. I hope that the House is now confident of the intention behind these measures and is reassured that the Government keep this important work under continuous review.
Noble Lords have contributed to a rich discussion on the changes being made to terrorism prevention and investigation measures—TPIMs, as we usually call them. The Government remain clear on the importance of strengthening this vital risk management tool, and we are grateful to all Peers who have spoken on the issue, especially those on the Liberal Democrat and Labour Front Benches, and also the noble Lord, Lord Anderson of Ipswich, for their thoughtful contributions to debate.
The amendments made in this House to the TPIMs provisions, tabled by the Government and by the noble Lord, Lord Anderson of Ipswich, will now be considered by the other place, and I look forward to returning to this matter when the Bill comes back to this House. Members of this House have recognised its importance, and we have discussed openly the complexity and challenges that dealing with terrorism poses.
The Government are confident that the Bill will strengthen the approach taken to the sentencing and release of terrorist offenders, by ensuring that serious and dangerous terrorist offenders will spend longer in custody, properly reflecting the seriousness of the offences they have committed. Crucially, it will improve the Government’s ability to manage and monitor terrorist offenders when they are released. This will ultimately provide better protection for the public and keep our country safe. For all these reasons, I hope that the Bill will progress quickly through the other place, and I look forward to discussing it further on its return to this House.
Lord Wolfson of Tredegar (Con)
My Lords, I am very grateful for the words expressed by all the speakers. First, I in particular thank the noble and learned Lord, Lord Falconer of Thoroton. He is right that I am something of a neophyte when it comes to the work of this House, so thanks from him, with his extensive experience, is especially well received. He was also correct to draw attention and pay tribute to the other two members of the ministerial team and the officials who worked on the Bill. My noble friend Lord Parkinson of Whitley Bay did a lot of the heavy lifting, and my noble and learned friend Lord Stewart of Dirleton was, as I think the noble Lord, Lord Carlile of Berriew put it once in Committee, the other half of the Government’s twin strike force. I am very grateful to both my colleagues for everything they have done.
As I mentioned the noble Lord, Lord Carlile of Berriew, I benefited personally—I know we all did—from his experience, both in this Chamber and in our discussions outside, and I am confident that they will continue on other legislative matters.
Finally, I also thank the noble Lord, Lord Paddick, for his comments. Of course, we had some differences on certain issues in the Bill, but they were differences of principle; both sides were, I hope, well and fairly argued; and I am sure that those discussions and debates also led to a better Bill in the end. The noble Lord was part of a triple strike force, and he was right to mention his colleagues, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Marks of Henley-on-Thames, who also did a lot of work in this regard. I see the time, and therefore conclude my remarks there.
Domestic Abuse Bill
Lord Wolfson of Tredegar ExcerptsWednesday 10th March 2021
(3 years, 8 months ago)
Lords ChamberRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 171-III Third marshalled list for Report - (10 Mar 2021)
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.
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.
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”.
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.
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.
Member’s explanatory statement
See the explanatory statement to the Minister’s amendment at page 35, line 25.
(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 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.
“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.
“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 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.
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.
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.
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.
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.
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.
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.
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 66, line 21.
Judicial Pensions (Fee-Paid Judges) (Amendment) Regulations 2021
Lord Wolfson of Tredegar Excerpts(3 years, 9 months ago)
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Lord Wolfson of Tredegar
That the draft Regulations laid before the House on 18 January be approved.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, this statutory instrument amends the Judicial Pensions (Fee-Paid Judges) Regulations 2017, which I will refer to as the FPJPS regulations, which established the fee-paid judicial pension scheme 2017, which I will refer to as the FPJPS. This statutory instrument broadly has three purposes: the first is to add eligible fee-paid judicial offices to the FPJPS regulations; the second is to make amendments consequential to adding these offices to the FPJPS regulations; and the third is to make various further amendments to those regulations.
Dealing with those in turn, the main purpose of this statutory instrument is to add further eligible judicial offices to the FPJPS regulations. To give the House an example, Part 2 of the statutory instrument adds the office of legal chair of the Competition Appeal Tribunal to the schedule of offices in the FPJPS. Until that is done, individuals holding these offices cannot be members of the FPJPS and cannot, therefore, accrue pension benefits under it, even though they would otherwise meet the eligibility criteria. Similarly, member pension contributions could not be deducted from their judicial fees. Currently, when the Ministry of Justice is notified that an individual in this situation retires, an interim payment in lieu of pension is made, but once these judicial offices are added to the FPJPS regulations the payments in lieu will become formalised pension payments.
The second element is the consequential amendments, contained in Part 3, which flow from the addition of these judicial offices to the pension scheme. These amendments ensure two things: first, that eligible service before this SI comes into force on 1 April 2021, and potentially as far back as 7 April 2000, can also count as pensionable service and pension contributions can be deducted in respect of it; and, secondly, these new members can complete certain actions in the scheme, such as the purchase of additional benefits, from their date of admission to the scheme.
Thirdly and finally, we are taking the opportunity of this SI to make some further necessary amendments to the FPJPS regulations. I will highlight three kinds of amendment. First, we explicitly set out the service limitation dates that apply for relevant judicial offices. This is the date from which reckonable service is taken into account for the accrual of pension benefits under the scheme. Service limitation dates represent the point in time when the appropriate salaried judicial officeholders had access to a pension under the Judicial Pensions and Retirement Act 1993 scheme, known as the JUPRA scheme. Following the 2013 judgment in a case called O’Brien v Ministry of Justice, we need to replicate that in the FPJPS. To give the House an example, service in the office of deputy adjudicator of Her Majesty’s Land Registry is eligible for an FPJPS pension, but only in relation to service in this office after 1 January 2009. Although these offices already fall under the entry in the FPJPS regulations of
“First-tier Tribunal Judge (where a legal qualification is a requirement of appointment)”
and the service limitation dates could be inferred, if one had the time and interest to do so, from various sources, such as the purpose of the existing regulations and litigation decisions, we consider it preferable for these dates to be clearly specified in these regulations, so that is what we have done.
Secondly, we have taken the opportunity to correct the service limitation dates, which are already listed for three judicial offices in these regulations, as they wrongly limit, by one day, the period of eligible service for these judicial officeholders. To give an example, the entry for
“Legal Chair Criminal Injuries Compensation Appeals Panel”
is currently limited to service in this office after 3 November 2008, whereas the correct date that the amendment records is 2 November 2008.
Thirdly, we have added the new names of two judicial offices already listed in the regulations. These are the Deputy Insolvency and Companies Court Judge, a position formerly known as the Deputy Bankruptcy Registrar; and the Deputy Master of the Senior Courts, formerly known as the Deputy Supreme Court Master.
Turning briefly to the consultations we have undertaken on these and related matters, I shall highlight three. In 2016, we issued a public consultation on the draft regulations establishing FPJPS and the responses were reflected in the final version of the regulations. The scheme commenced on 1 April 2017, with backdated effect to 7 April 2000. We have since undertaken further consultation exercises relating to the addition of eligible judicial offices to FPJPS. In the first of those two additional consultation exercises, in 2018 we consulted directly with judges of the First-tier Tribunal (Property Chamber) Agricultural Land and Drainage, as this office was not expressly mentioned in the 2016 consultation. We received four responses, which we considered carefully.
Secondly, from June to October last year, we consulted on adding these judicial offices to FPJPS as part of a wider consultation on amendments to the regulations on the inclusion of service in the scheme prior to April 2000. We received a number of responses, and the Government response to the consultation was published on 10 December last year. In addition, of course, we have kept the devolved Administrations informed of developments and have liaised specifically with officials from Wales and Northern Ireland regarding the offices whose jurisdictions are in those countries, reflecting their views accordingly.
I can reassure the House that this statutory instrument, which I accept is somewhat technical, is essentially a tidying-up exercise. We are not implementing any major changes through the statutory instrument, nor are we making any amendments to FPJPS with negative implications for judges. In fact, we are doing the opposite: we are enabling additional officeholders to become members of the fee-paid judicial pension scheme, something I know that both the judges concerned and my department are very keen to see happen. The key reason, therefore, for this statutory instrument is to add eligible judicial offices to the FPJPS regulations to enable those officeholders to become members of the scheme and to enable pension contributions to be deducted from their fees. I beg to move.
The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)
The noble and learned Lord, Lord Morris of Aberavon, will be followed by the noble Lord, Lord Bhatia.
Lord Wolfson of Tredegar (Con)
I am grateful to all noble Lords who have contributed to this debate. I hear the words of the noble Lord, Lord Ponsonby, ringing in my ears. He said that he had enjoyed this debate more than he thought he would; the problem is that he did not tell us how much he thought he would enjoy it, so I do not know whether he set a very low bar. But I will take it, as I enjoyed the debate very much, that he—like me—had a moderate expectation which has been significantly exceeded.
I have been asked by a number of noble Lords to provide independent legal advice on their pension entitlement. I am respectfully going to avoid doing this, not only because I am now an unregistered barrister so cannot give any legal advice at all but because I am not entitled to either a judicial or indeed a ministerial pension. However, I will set out, I hope clearly, that the Government are determined to ensure that all those entitled to pensions as a result of the four decisions—O’Brien 1, O’Brien 2, McCloud and Miller—receive them. Therefore, to pick up on the point made by the noble and learned Lord, Lord Morris of Aberavon, we do not want anybody to fall between the cracks.
As to how many people we are talking about, that rather depends on whether we are talking about people affected by those decisions or the people affected by the SI. The number of people affected by the SI is very small—a handful, maybe 10 or 15. The number of people affected by the other decisions is some 5,700, and at the moment we are paying about 1,235 people interim payments to reflect moneys to which they are entitled. As of 31 January this year, we have agreed 2,573 service records out of that estimated total of 5,706 for the O’Brien 2 and Miller claimants, and obviously we will be progressing that so far as we can.
Noble Lords are respectfully right to point out that this is the result of a number of court decisions; I deliberately did not go through the material in my opening, not least because of time. But it is important that judges, like everybody else in our society, have access to the courts, and it is also important that we recognise that our justice system depends not only on full-time, salaried judges but on a whole raft of fee-paid judges in all sorts of courts and tribunals up and down the land, without whom the critical infrastructure of our justice system would simply not exist.
I have been asked to say something about the current consultation; I will do that with reference to the McCloud litigation, which the noble Lord, Lord Bhatia, specifically asked about. As the House will be aware, the gist of that decision by the Court of Appeal, if I may respectfully paraphrase it, was that less favourable treatment was being given to some younger judges as compared with more senior judges. We have looked at that decision as part of the future reform, in respect of which we want to give judges an option as to whether or not they join the reform scheme.
From 2022, the reform scheme will be the only scheme in which members can accrue benefits; all other judicial pension schemes would close to future accruals, but no benefit previously accrued will be lost. Therefore, for those currently on final salary schemes—JUPRA or FPJPS—those benefits will be linked to their salary when they retire or leave judicial office. I can inform and, I hope, please the noble Lords who asked me what the timescale is—in addition to the noble Lord, Lord Ponsonby, I think it was the noble Lords, Lord Thomas of Gresford and Lord Davies of Brixton. The timescale is imminent; we will be publishing the government response to the consultation later this week. Off the top of my head I think it will be Thursday, but it will certainly be this week. So we are not sitting on our hands; we are certainly getting on with it.
In the time remaining I will pick up a number of other points. I respectfully agree with the noble Lord, Lord Davies of Brixton, that we need to get judicial pensions right. That is important in order to attract people to become judges, to retain them as judges and to make sure that they have a proper pension scheme. The tax treatment is part of that and noble Lords will see how we have responded to it in the consultation later this week. There is no question but that this Government put a very high degree of importance on getting the judicial pension structure and system right in order to attract people into the scheme.
I hope that I have picked up all the questions I was asked. I think the only question outstanding, from the noble and learned Lord, Lord Morris of Aberavon, and, I think, from the noble Lord, Lord Thomas of Gresford, was about whether recorders are in the scheme. I have been informed, while on my feet, that recorders are already in the scheme—so I hope that that bit of personal good news will be welcome to those Members. I will check the Official Report to see whether there are any questions I have not responded to—but I hope not, and I therefore commend these regulations to the House.
Learning Disabilities: Child Trust Funds
Lord Wolfson of Tredegar Excerpts(3 years, 9 months ago)
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Lord Young of Cookham
To ask Her Majesty’s Government what progress they have made towards enabling access to Child Trust Funds by those with a learning disability.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, the Government have committed to making the process of obtaining legal authority to access a child trust fund more straightforward. A working group comprising the Ministry of Justice, the Treasury, HMRC and the Department for Work and Pensions has met several times to consider what more can be done, and it has also met the Investing and Saving Alliance, the Financial Conduct Authority and the Money and Pensions Service. The Court of Protection Rules Committee is reviewing its application forms and considering issues raised by campaigners.
Lord Young of Cookham (Con)
I am grateful to my noble friend, who has only recently inherited this pressing problem. I hope that he can help the thousands of families who cannot access child trust funds without a lengthy and at times intimidating procedure. On 3 December, when I last raised this, my noble friend Lady Scott said that the new working group would
“report back to the Minister in early January.”—[Official Report, 3/12/20; col. 828.]
What progress has been made? Might he promote a simplified and streamlined court procedure to access what are normally fairly small sums of money?
Lord Wolfson of Tredegar (Con)
My noble friend is absolutely right that, because these funds are generally of relatively small amounts of money, it is all the more important that court procedures, which are designed to comply with the Mental Capacity Act 2005, are both accessible and proportionate. Rules and procedures are a matter for the courts, not Ministers, but I will do all I properly can to ensure that children and young adults with a learning disability can access what are, after all, their own funds.
Lord Touhig (Lab) [V]
My Lords, in December, some finance firms started to allow parents supporting a disabled youngster to access trust funds without a court order in exceptional circumstances. Some 30% of families benefit, but 70% are still required to go to court. Last week, in a meeting with the Investing and Saving Alliance, officials from the Minister’s own department refused to support this—why?
Lord Wolfson of Tredegar (Con)
My Lords, it is not for the Government to comment on the development of private sector proposals and the extent to which—and whether—they comply with the relevant legislation. We are working with all the financial trade bodies to ensure that parents and guardians of young people who do not have the required mental capacity to make the decision to access a child trust fund at age 18 are aware of both lasting powers of attorney and the important benefit of making an application to the Court of Protection before they reach 18 to avoid court fees.
Lord Wigley (PC) [V]
Does the Minister not accept that there is an urgency about this? Many families face huge administrative burdens and other pressures when their child reaches adulthood. Child trust funds can play an important part in helping with the transition, but accessing them should not become an additional burden, especially when relatively small sums of money are involved. Will he please commit to ensuring that families will be supported proactively in these circumstances —and do this with some urgency?
Lord Wolfson of Tredegar (Con)
My Lords, I can certainly commit to that: I have arranged meetings later this afternoon to that end, and I will take a personal involvement to ensure that all that can be done is done. I will also liaise with the President of the Family Division but I emphasise that, ultimately, court rules are a matter for the court, and there is a constitutional propriety that I have to maintain.
Baroness Browning (Con) [V]
I ask my noble friend about capacity. Under the Mental Capacity Act, this is not a generalised presumption; it is specific to the issue at hand. Who exactly determines whether the individual has capacity? If a professional assessment of capacity is needed, who exactly is expected to pay? It can cost several hundred pounds.
Lord Wolfson of Tredegar (Con)
My Lords, there are a number of ways in which the requisite capacity, or lack thereof, can be established and assessed by the court, and those issues probably take me outside the bounds of an answer here. I will write to the noble Baroness to give more detail.
Lord Addington (LD)
My Lords, last time this was discussed, I said that the Minister had pointed out an absurdity. He has still got his finger on it. Can he give the House an assurance that we will not only get a solution but will hear about when that is reached, and that banks and their internal bureaucracy are informed about this so it can be done quickly?
Lord Wolfson of Tredegar (Con)
My Lords, the present situation is absolutely unfortunate. One of the problems is that this does not seem to have been anticipated by the Government which put child trust funds into existence. We are doing all we can, and I will certainly report back to your Lordships’ House on the progress we make. As I have already said, I am personally committed to ensuring that this problem is solved.
Baroness Altmann (Con) [V]
My Lords, will my noble friend assure the House that any measures taken to help children with disabilities access their own money in their child trust funds will also read across to junior ISAs, where I believe similar problems can arise? The Government may have special responsibility here, after the 2005 Government offered parents extra payments to invest in a child trust fund if they were also claiming disability living allowance.
Lord Wolfson of Tredegar (Con)
My Lords, at the moment I do not see any conceptual distinction between child trust funds and junior ISAs. What we put in place to solve this problem ought, in principle, to be applicable to junior ISAs as well.
Baroness Wheatcroft (CB) [V]
My Lords, those who look after children with learning disabilities deserve our help and admiration. They do not need unnecessary obstacles being put in their way. Is there any evidence that those trying to access the funds being discussed have anything but the best of motives?
Lord Wolfson of Tredegar (Con)
The noble Baroness is certainly right. Virtually everybody does have the best of motives, but there have been cases where the protections afforded by the Mental Capacity Act 2005 have, unfortunately, been needed. One has to remember that, ultimately, one is dealing with the funds of somebody who lacks the capacity to deal with them themselves. That is why the Mental Capacity Act puts in protections which may well be needed.
Lord Ponsonby of Shulbrede (Lab) [V]
A professional actuary has been helping campaigners to identify the aggregate amount of money that disabled young people could lose from their child trust fund as a result of the current court process. The results estimate that, if one in four parents give up pursuing these funds because of the perceived difficulty in accessing the money, £107 million could be lost to those children over the next 10 years. This money is being locked away forever in individual accounts. What assurance can the Minister give that any new solution will be designed to make it as easy as possible for these families to access the benefits for young people?
Lord Wolfson of Tredegar (Con)
My Lords, I do not want anybody to give up accessing money which is rightfully theirs. There are a number of provisions in place for fees but, to sum this up, the Government’s intention is that no one who needs to apply to the Court of Protection solely to access a child trust fund will pay fees.
Lord German (LD)
Further to his answer to the noble Lord, Lord Touhig, will the Minister tell the House why it is that the scheme which the investment and savings body has put in place while waiting for a permanent solution, and has been operating—moving the system from cumbersome to semi-cumbersome, not a full solution—is not getting the blessing of the Ministry of Justice in order that it can make at least some progress in this matter?
Lord Wolfson of Tredegar (Con)
My Lords, the reason is that it is not for the Ministry of Justice to give its blessing to private sector schemes and to say whether they do or do not comply with the relevant legislation. That legislation is important: it is there to protect people. If the private sector wants to put in a scheme, that is a matter for the private sector. So far as my department is concerned, we need to make sure, so far as we can, that the court rules and procedures are appropriate, proportionate and accessible.
Baroness Finlay of Llandaff (CB) [V]
I declare an interest as chair of the National Mental Capacity Forum. As Covid lockdown difficulties for the Court of Protection have now led to delays of around 20 weeks for uncontested applications, can the Government confirm that forms marked “Urgent” are prioritised and digital options are being explored by the court, to improve access while retaining the important protections from the MCA against exploitation or misuse of funds?
Lord Wolfson of Tredegar (Con)
My Lords, the noble Baroness will be aware that two weeks of the waiting time is mandatory under the Act. For the rest of that period, if applications are marked as urgent then they are dealt with on an expedited basis. On the second point, court staff are putting in place new digital ways of working the procedure to try and speed things up.
Lord Vaizey of Didcot (Con)
I thank the Minister for being so brief that I could get in. I point to my entry in the register of Member’s interests relating to my work for the Investing and Savings Alliance. I was delighted to hear what the Minister said about there being no conceptual difference between a child trust fund and a junior ISA. Now that this issue has been raised, should the department now grasp simplifying legal procedures for a whole host of financial products? Can we not see, in the next year, the “Wolfson reforms” as his legacy?
Lord Wolfson of Tredegar (Con)
My Lords, I regret that my noble friend is already talking about my legacy when I have only been in this House about six weeks—in future, I will make longer answers. My noble friend raises an important point. I emphasise that the constitutional position is that court procedures and rules are a matter for the courts. So far as I am concerned, we need to make sure that the response of the justice system, over the whole gamut of civil justice, is proportionate to the sum in issue and the issues which are being argued about. To that extent, I agree with the point made by my noble friend.
The Lord Speaker (Lord Fowler)
My Lords, all supplementary questions have been asked—congratulations. We now come to the second Oral Question.
Counter-Terrorism and Sentencing Bill
Lord Wolfson of Tredegar ExcerptsTuesday 9th February 2021
(3 years, 9 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Sentencing Bill 2019-21 View all Counter-Terrorism and Sentencing Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 129-II Second marshalled list for Committee - (4 Feb 2021)
Member’s explanatory statement
This amendment and the amendment at page 29, line 14 are consequential on the removal of Clause 35.
Lord Falconer of Thoroton (Lab) [V]
It is a pleasure to follow the noble Lord, Lord Marks of Henley-on-Thames. He has covered much of the area with which I am concerned in these sensible probing amendments. The next amendment, Amendment 20, which talks about piloting polygraph tests in this area, deals in effect with the same concerns.
My understanding of the position that the Government are advancing is that we are now concerned only with England and Wales because they deleted the Scotland and Northern Ireland provision that was there before. In effect, they are applying the principles in the Offender Management Act 2007 on polygraph tests. Therefore, the first question is: should one put a polygraph condition into the licence conditions of a terrorist offender? As I understand it, a polygraph condition is that the offender has to agree, if asked, to a polygraph. Will it be automatic that such a condition will be imposed for terrorist offenders? What will be the basis on which such conditions will be imposed?
We on this side are very keen that the authorities should have every reasonable tool that they can to try to prevent terrorist offenders, including those who are released on licence. I am keen to probe whether this particular provision contributes to that. As I understand it from the Government’s proposal, the purpose of the polygraph sessions that will be included in the licence condition will be only to monitor the offender’s compliance with the other conditions of his licence or improve the way in which he is managed during his release on licence.
In relation to the first of those two—monitoring compliance with the other conditions of his licence—does that mean that it will be used to see whether he is in fact complying? If he fails a polygraph test, could that be a basis for recalling him to prison on the basis that he has failed to comply with the other conditions of his licence? If it is the Government’s intention not just to rely on the failure of a polygraph test before recalling an offender to prison, where is that reflected in the statute or in the Bill?
In addition to those questions, to what extent is the Minister worried that, if somebody passed a polygraph test, it would lead the authorities not to make further investigations about an offender’s possible breaches of compliance of the conditions of his licence? Additionally, in relation to the second purpose of polygraph testing—namely, to improve the way in which he is managed during his release on licence—can the Minister give us some examples of what that would mean in practice?
Can I deal with the legal use of the answers to polygraph tests? Section 30 of the Offender Management Act 2007—this has already been referred to by the noble Lord, Lord Marks of Henley-on-Thames, and the noble Baroness, Lady Hamwee—says that evidence of
“any statement made by the released person while participating in a polygraph session; and any physiological reactions of the released person while being questioned in the course of a polygraph examination”
cannot be used against that released person for any offence. In answer to my question, that of the noble Baroness, Lady Hamwee, and that of the noble Lord, Lord Marks of Henley-on-Thames, can the Minister confirm whether that means that those two things can be used in relation to proceedings against somebody else? It would appear from Section 30 of the Offender Management Act 2007 that they could be. Can they be used on their own for recall proceedings, or are recall proceedings simply an administrative act—in which case, the question of whether they can be relied on alone to justify a recall arises?
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, in responding to the amendment and the various points put to me, I will bear in mind and seek to avoid falling into the trap of being one of those “pesky lawyers” that, as the noble Lord, Lord Thomas of Gresford, reminded us, still exist.
In that regard, let me turn to the substance of the amendments, particularly Amendment 19 put down by the noble Baroness, Lady Hamwee. This amendment seeks to amend Section 30 of the Offender Management Act, which relates to the use of polygraph evidence in criminal proceedings. I understand that the noble Baroness and others may have concerns that evidence gathered from the conduct of polygraph examinations could be used against a third party in a criminal trial. I know that we covered this yesterday in the Domestic Abuse Bill, but I want to take a moment to record my thanks to those in my department who arranged the learning session for a number of noble Lords, including the noble Lords, Lord Marks and Lord Faulks, and the noble Baroness, Lady Hamwee. I understand that they found it helpful and informative, which perhaps indicates that those sessions could be used more often. I assure the noble Baroness, Lady Hamwee, and the Committee that it is neither the intention nor the effect of the polygraph testing provisions of the Bill that they will be used in criminal proceedings against third parties.
In response to the specific point put to me by the noble Lord, Lord Thomas of Gresford, we do not harbour any desire to go further than the provisions in the Bill.
Polygraph examinations are now well established as a risk management tool in England and Wales. They have been used successfully, as the Committee has heard, with sex offenders since 2013. In the context of terrorist offenders, which I acknowledge represents a different cohort, they are—if I can put it this way—an additional tool in the toolbox. They will be used, to respond to the point made by the noble and learned Lord, Lord Falconer of Thoroton, where it is necessary and proportionate to do so as part of the assessment of the risk offenders pose in the community while on licence and how that risk can best be managed.
As I made clear to the noble Lord, Lord Marks, yesterday in the Committee sitting on the Domestic Abuse Bill, Section 30 of the Offender Management Act makes clear that
“any statement made by the released person while participating in a polygraph session; and any physiological reactions of the released person while being questioned in the course of a polygraph examination”
may not be used in criminal proceedings in which that person is a defendant. While that section does not expressly provide for such information to be precluded from use against others in criminal proceedings, which is what this amendment seeks to achieve, I do not believe the amendment to be necessary.
This is because, although there may be circumstances where information obtained through the polygraph test relating to a third party can be passed from probation to the police to make further investigations, the polygraph material would not be suitable for use as evidence in its own right against a third party. Any allegation against a third party would ultimately need to be tested in court. The court would have to consider, among other things, whether the polygraph evidence was admissible in such other criminal proceedings and the effect of the hearsay rule. While that would ultimately be a matter for the judge in the particular case, noble Lords will appreciate the great difficulties that would be presented by the hearsay rule.
The noble Lord, Lord Faulks, said that sex cases are different from terrorism cases. He is of course right, but he was also right to say that what is presented by terrorism cases is a difficult and challenging task. That is why, to use my earlier metaphor, this is another tool in the toolbox which we would like the services to have available to them. In that regard, I can assure Members of the Committee that polygraph testing will not replace any other risk assessment tools or measures, it is an additional source of information that would otherwise not be available. On that basis, I would invite the noble Baroness, Lady Hamwee, to withdraw the amendment as it is unnecessary.
I turn now to Amendments 19A and 19B, which are tabled in the name of the noble Lord, Lord Paddick. The amendment to Clause 35 would require regulations relating to the conduct of polygraph examinations to be subject to the affirmative procedure. Perhaps I may remind the Committee that we have already tabled our intention to remove Clause 35 from the Bill, alongside Clauses 33 and 34 dealing with the introduction of polygraph testing as a licence condition in Scotland and Northern Ireland, as part of our efforts to secure legislative consent from each Administration. We covered this in the first sitting of the Committee. It does not reflect a change in policy for England and Wales. As I have said, we firmly believe that polygraph testing is an additional and useful tool.
In that regard, polygraph examinations will be used to monitor compliance with licence conditions based on what has happened and will not ask about future behaviour. I think it was the noble Baroness, Lady Hamwee, who put to the Committee an example of the type of questions that might be asked. She was right to frame those questions in the past tense. A polygraph examiner might ask, for example, “Did you enter those premises?”, if that was something which had been prohibited by the licence conditions. The question would not be, “Are you going to enter the premises next week?” The questions look at what has happened and past behaviour rather than future intent. They are not used as a way of trying to catch offenders out, but as a measure to identify the extent to which the person on licence is complying with the conditions of the licence.
Although I accept, as the noble Lord, Lord Thomas of Gresford, reminded the Committee, that giving evidence in court can be a stressful experience, it was interesting to note that he pointed out that we have provided special measures for vulnerable witnesses in the Domestic Abuse Bill. As I understood it, he used that as an example of a case where we recognise that giving evidence can be stressful. Of course, we have also provided for the polygraph examination of the perpetrators of domestic abuse in that Bill. Just as it is in the Domestic Abuse Bill, it is also here; it is an additional tool in our toolbox.
I come to a question put to me by the noble Lord, Lord Marks, which I think was repeated by the noble and learned Lord, Lord Falconer of Thoroton: if a person who is subject to a polygraph examination “fails” a question, can they be recalled immediately? There are two parts to the answer and let me give both. First, what do we mean by “failing”? We use the term as a form of shorthand, and the Government factsheets use it because they are written in what we hope is plain English so that members of the public can understand them, but it is not the correct professional term. The correct terminology that is used by examiners in reports is whether there is a significant response or no significant response. That more nuanced term makes it clear that we are not dealing with a question of passing or failing here; rather it is about whether the examination results indicate that the response has been truthful or not.
That is why, coming to the second part of the question, we do not recall offenders to custody on a significant response in itself. In answer to the question put to me by the noble and learned Lord, Lord Falconer of Thoroton, that is not in the Bill, but it is firm policy. Therefore, “failure”, a term that the Committee will now appreciate is a form of shorthand, does not by itself or by default trigger a recall. Where it is safe to do so—for example, with the addition of new licence conditions—the offender can continue to be managed in the community. However, if a disclosure is made which indicates that the risk has escalated beyond the point where the offender can be managed safely in the community, they can be recalled to custody.
Lord Robathan (Con)
My Lords, I apologise for not adding my name, which I put down to speak but not on a particular group. Yet again, I find myself as the only person taking part in the debate who is not a lawyer. I shall come back to that later.
In layman’s terms, I joined the Zoom call on polygraph testing last week, to which other noble Lords referred, and it was extremely useful. I thank Heather Sutton from the probation service, Professor Don Grubin and others for laying it on because it explained to me what polygraph testing is. They explained straightaway that a polygraph is not a lie detector but an additional tool to enhance the safe and effective risk management of offenders and could not be used as evidence.
I did, in fact, ask why sex offending was used as the only precedent for using polygraphs on terrorists. I think that I sort of understood the response, which was that it was a question of denial. That is what they sought to find out. It was a very useful teach-in session.
That is why I am slightly puzzled that we are discussing these amendments. As I said, I am not a lawyer. The noble and learned Lord, Lord Falconer, reminded us that law can be a gift that keeps on giving. We were reminded of that only at the weekend. We heard from three Liberal Democrats. I think they all said—the noble Lord, Lord Thomas of Gresford, certainly did—that you cannot use a polygraph test as evidence. If you cannot use it as evidence against the specific person against whom you have done the test, surely by implication it cannot be used as evidence against somebody else. My noble friend the Minister specifically pointed to hearsay. It seems that we are slightly arguing about angels on the head of a needle: it will not be used, so why on earth are we arguing about it? This was presented as a probing amendment, but it seems to be probing something that we do not really need to probe
The point of polygraph testing is that, as an additional tool, we would get away from the case of Usman Khan at Fishmongers’ Hall, who had convinced his mentor, Jack Merritt, that he was de-radicalised. Jack Merritt believed in him and his redemption, and Usman Khan killed him. Surely we should use these additional tools if they have any substance or credibility. From what we heard in the teach-in last week, polygraph testing has some credibility.
Let us please back the use of an additional tool until proved otherwise, because frankly we are dealing with something that I guess probably none of us in this Chamber or on this call understand. We do not understand why somebody would get into an aeroplane, train for months in the United States and then fly that aeroplane into the twin towers. We do not understand suicide bombers. We do not understand the radicalisation that takes place in these people, so surely we should give the Government every tool they can possibly have. I certainly back them on this.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful for the question put to me by my noble friend. As I said, that is precisely what the Government seek to do: to provide an additional tool for the management of these offenders. The point he made regarding deradicalisation is, if I may say so, very perceptive. It is a difficult part of the overall structure we are putting in place in the Bill, as we have in other legislation.
I am delighted to hear that my noble friend found the teach-in session helpful. I am particularly grateful to him for putting on record the names of the people who presented it. I know that they put a lot of work into putting it together.
The only point I would respectfully disagree with my noble friend on is one that I had cause to point out to another Member of your Lordships’ House—I think last week. One must really stop apologising for not being a lawyer. I think my noble friend did it twice. I pointed out last week that what is regarded as a cause for apology in this House is generally regarded as a badge of honour everywhere else. The question put to me by my noble friend exemplifies how this is a matter for lawyers and non-lawyers.
Baroness Hamwee (LD) [V]
My Lords, at the briefing by the MoJ, I was one of those who volunteered—at some point when we are able to travel again—to undergo a test, because I would like to experience what it is like. I sound a note of caution about the use of private—sometimes confidential but certainly private—sessions. They are terrific and helpful, but only so far; I do not believe that they can take the place of public debate. I could respond at some length to the noble Lord, Lord Robathan, but it would be outside the scope of the amendment. The purpose of scrutiny and its place in the development of legislation mean that it must be undertaken in public. I do not mean to sound too pompous in saying that, but it is something that I believe very profoundly.
The Minister apologised for being a pesky lawyer, but I think that being a pesky lawyer or an activist lawyer is a badge of honour. I disagreed with the comment of my noble friend Lord Thomas that people would not want to apply polygraphs in criminal proceedings. I can imagine that there are a lot of situations when people in court think that they would very much like to apply a polygraph to some witnesses—but that is by the by. I have told myself that I would not take up too much time with this response, because we have a lot of amendments to get through.
Inevitably, perhaps, this turned into a more general debate. On the specific amendment, we are told that it is unnecessary, and that what one might take—I cannot think of the right term— from a polygraph would be unsuitable for use in court, because it would be hearsay. I shall have a look at that after today, but I think that there is a little bit of circularity in all that. Certainly, in the real world, the questions that might be asked would, I am sure, provide material for the police, if not the prosecution—but that is a common-sense response. I beg leave to withdraw the amendment.
Lord Paddick (LD) [V]
My Lords, I wish either that this group had been grouped with the previous group or that I had spoken in the previous group, as we seem to be going over the same ground. Can I also push my luck, at the invitation of the noble and learned Lord, as an out and proud non-lawyer and wonder out loud whether lawyers feel somewhat threatened that there might be a machine more able to tease out whether someone is telling the truth or not, or even to tease out a disclosure, than a lawyer? I do not believe lawyers need to worry. I feel this group and the previous one turned into an extension of the teach-in. But I shall press on.
Amendment 20, moved by the noble and learned Lord, Lord Falconer of Thoroton, to which my noble friend has added her name, calls for a review of polygraph testing on terrorist offenders based on a pilot scheme. I take a slightly different view to my noble friends Lady Hamwee and Lord Marks, probably because they are pure Liberal Democrats, unlike me, who am contaminated by 30 years’ experience as a police officer.
Yesterday, in discussion on the use of polygraph testing in the Domestic Abuse Bill, the Minister talked about how polygraph tests were used. I join other noble Lords in saying how helpful the teach-in on polygraph testing provided by the Ministry of Justice was, and I thank the ministry for it. In that presentation, if I recall correctly, we were told that the tests are 80% to 90% accurate, on the basis of tests carried out on sex offenders. The tests measure physiological changes that occur if someone is trying to think of a wrong answer about an experience they have had in the past. People usually instinctively think of the truthful answer before they offer a dishonest alternative, and this produces physiological changes that the tests pick up. The evidence suggests a dishonest response cannot be used in court, and it is not used to recall someone to prison, but it might prompt further investigation by the police. Failing the test is not a replacement for any other form of risk assessment.
From the notes I made at the time, which take me back to giving evidence in court as a police officer, polygraph tests also prompt disclosures that might not otherwise occur. If such a disclosure indicates the subject has breached their licence conditions or is a threat to the public, this can result in prison recall. In short, disclosures can result in immediate sanction, but failing the test can only lead to further investigation.
Although polygraph tests have been used on a large number of sex offenders and have, therefore, been thoroughly evaluated, it will be more difficult, even with a pilot, to evaluate use with terrorists, as there are far fewer of them. My noble friend Lord Thomas of Gresford mentioned the right to silence, recalling what we were told in the teach-in. The difference here is that these are convicted offenders on licence, who have no right to silence. However, the science is the same whether we are dealing with sex offenders or terrorists, and polygraph tests are useful where there is a pattern of behaviour rather than a single act. It is, therefore, anticipated that their use in terrorism cases will be similarly effective. There has already been considerable experience of using polygraph tests and evaluating the results, somewhat at odds with the comments of the noble and learned Lord, Lord Woolf. But in agreeing with the noble and learned Lord, I think that it is true to say there has been very limited, if any, experience of using polygraph tests in connection with terrorism offences.
I feel sure that the Government will use polygraph testing with terrorists and, as we will hear in a later group, those subject to TPIMs, on a trial basis, as they intend to do in relation to domestic abuse. But the opportunities to evaluate their effectiveness with terrorists will be more limited, because, as I said, the numbers are considerably smaller. I am sure the Minister will say whether I got that right.
Lord Wolfson of Tredegar (Con)
My Lords, on the face of it the purpose of this amendment, tabled by the noble and learned Lord, Lord Falconer of Thoroton, is to provide for a pilot of polygraph testing for terrorist offenders in the UK and for a report to be prepared and laid with a recommendation on commencement before the provisions are commenced. I appreciate, however, that the debate has gone a little broader than that, and I will try to respond in my remarks to all the points put to me. I should say at the outset that I am impressed by the note-taking ability of the noble Lord, Lord Paddick, which has obviously not diminished with time. I hope that the notes which he took are consistent with not only what he was told at the meeting, as I am sure they are, but with what I said on the previous group and what I am going to say on this group as well.
Polygraph examinations have been used successfully in the management of sexual offenders by the National Probation Service since 2013, following an initial pilot. Offenders involved in the pilot stated that, although they did not like being tested, for many it helped them modify their behaviour and comply with other licence conditions. While I therefore respectfully agree with the comments of the noble and learned Lords, Lord Woolf and Lord Morris of Aberavon, that we are on a learning curve, we are in fact someway up the curve, if I may put it in those terms. The noble and learned Lord, Lord Woolf, was right to remind us of Clause 35(1), which provides for regulations in this context. The breathalyser is a good example, as put before the Committee by the noble and learned Lord, Lord Morris of Aberavon, of how we must always in the criminal justice field avoid being shy of using technology where it is available. The question is how it is to be used; it is in that context that I come to the questions put to me by the Members of the Committee.
Having put that provision in place for sexual offenders, the independent evaluation of mandatory testing on sexual offenders carried out by the University of Kent produced extremely positive results. As the Committee is aware, we have since rolled out polygraph testing in that context. We must therefore be wary of two things. First, we must be wary of the trap of saying that because something might or might not be used in “The Jeremy Kyle Show”, it should form no part of the criminal justice system. “The Jeremy Kyle Show”, which I think has now stopped, can look out for itself. My concern is to ensure that we have proper provisions for polygraph testing in the criminal justice system.
The second thing we must be careful of, if I may respectfully say so, is not to fall into the trap of thinking that anything which comes from the United States of America is inherently suspect in the criminal justice field. I would gently point out to the noble Baroness, Lady Hamwee, that the American Polygraph Association’s standards are those of an international professional association for polygraph examiners. That association carries out research and provides accredited training for examiners. It also provides mandatory professional development training, which all examiners must complete every two years to maintain their accreditation. Its standards are used by examiners across the world, and the Government want to ensure that those standards are maintained for examinations conducted on terrorist offenders.
Member’s explanatory statement
This amendment, and the amendments at page 94, line 15, page 94, line 29 and page 94, line 41 are consequential on the removal of Clause 33.
“(b) in paragraph (a), for “that Act” substitute “the Counter-Terrorism Act 2008.””Member’s explanatory statement
This amendment makes a further consequential amendment to section 23A of the Terrorism Act 2000 needed as a result of Clause 1 of the Bill.
Lord Wolfson of Tredegar (Con)
My Lords, I shall speak also to Amendments 42 to 65 inclusive and to Amendments 69, 71, 72, 74 and 76. I make four very short points. First, the hour is late and getting later. Secondly, these are all technical and consequential amendments. Thirdly, we have placed an explanatory note for each of them, which I am sure Members of the Committee will have looked at. Fourthly, I propose to set out in a letter, which I shall place in the Library, a more detailed analysis of the admittedly somewhat arcane and, in many cases, technical and consequential nature of these amendments. I hope that in those circumstances, I can draw my remarks to a close there. Obviously, if noble Lords have specific questions, I will attempt to answer them now, but otherwise, I beg to move.
Lord Thomas of Gresford (LD) [V]
My Lords, since requests to speak after the Minister are delivered to the Deputy Chairman of Committees by forked stick, perhaps I might comment on the earlier group concerning the review. Mr William Shawcross’s report on compensation for Libyan-backed terrorist atrocities in Northern Ireland was discussed on Monday. It was received by the Government last May but not published, as we have discussed. I hope that any review or report in the field that we have been discussing will not similarly be kept clutched to the Government’s bosom.
I have considered the government amendments to this schedule, and I am satisfied that they are consequential to amendments to legislation made necessary by this Bill and do not contain in themselves any questions of principle. I would not be surprised, given the complexity of the Bill, if other amendments emerged in the course of time.
Lord Falconer of Thoroton (Lab) [V]
The only amendment I would like to mention is Amendment 60, which amends Section 250 of the Criminal Justice Act 2003 so that, according to the explanatory statement,
“the Parole Board will set the licence conditions for all prisoners to whom section 247A of that Act applies (restricted eligibility for early release) whose release is directed by the Board.”
Is this dealing with licence conditions where there is no right to early release or with licence conditions where there is a right to early release? If so, what is the effect of the amendment? It is the only amendment in this group that looked as if it might be doing something substantive. If the Minister would like to write to me, I will quite understand.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful for the comments of the noble Lords, Lord Thomas of Gresford and Lord Paddick. In response to the specific point put to me by the noble and learned Lord, Lord Falconer of Thoroton, in one sentence, the change is needed to ensure that there was clarity over the authority for setting licence conditions for terrorist offenders, whether serving standard, determinate, extended or other sentences. I shall include an explanation of the amendment in my letter. I hope that satisfies him; if he wants any further information, I would of course be happy to provide it.
“Counter-Terrorism and Security Act 2015 (c. 6)
2A_ In section 44(2)(e) of the Counter-Terrorism and Security Act 2015 (provisions subject to review by the independent reviewer of terrorism legislation), for “Schedule 1” substitute “Schedules A1 and 1”.”Member’s explanatory statement
This amends the list of terrorism legislation which is subject to review by the independent reviewer to include the new Schedule A1 inserted into the Sentencing Code by Schedule 1 to the Bill.
“(i) Part 3 of that Schedule, except as mentioned in subsection (3)(hb);(ia) Part 4 of that Schedule;”Member’s explanatory statement
This is consequential on the amendment at page 44, line 11.
Domestic Abuse Bill
Lord Wolfson of Tredegar ExcerptsMonday 8th February 2021
(3 years, 9 months ago)
Lords ChamberRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 124-VI(Rev) Revised sixth marshalled list for Committee - (8 Feb 2021)
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I thank the noble Baroness, Lady Bertin, for tabling these amendments and spotting this loophole in the Bill. It is good to have this debate today. As she has said, marital rape can happen in a country where it is not illegal locally, and we would then not be able to prosecute the offence here in the UK. Nobody in this Committee wants that situation. I hope the Government will confirm that they either accept her amendments, or accept that she has identified a very serious loophole and bring in their own amendments on Report.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, my noble friend Lady Bertin has, as she has explained, tabled an amendment which seeks to ensure that UK citizens who commit marital rape in countries where such behaviour is not criminal may be prosecuted in the UK. Such countries are thankfully in the minority. We of course want to prevent any exploitation of more lax laws on marital rape elsewhere.
I hope that the Committee will allow me a moment to put these amendments into context so that we can understand the legal architecture that we are talking about. Schedule 2 contains amendments to various enactments to provide for extraterritorial jurisdiction over certain offences under the law of England and Wales, Scotland and Northern Ireland. Together with provisions in the Domestic Abuse and Family Proceedings Bill currently before the Northern Ireland Assembly—it gives extraterritorial effect to the new domestic abuse offence in Northern Ireland—and Clauses 66 and 67, it ensures that the UK complies with the jurisdiction requirements of Article 44 of the Istanbul convention. That article requires the UK to be able to prosecute criminal conduct set out in the convention when that conduct is committed outside the UK by one of our nationals or by a person who is habitually resident here. Part 1 of the schedule covers England and Wales and deals with cases under Sections 1 to 4 of the Sexual Offences Act 2003, where the victim of the offence is aged 18 or over. Parts 2 and 3 cover Scotland and Northern Ireland on a corresponding basis.
In keeping with the normal principles of extraterritorial jurisdiction, there is a requirement that a prosecution for one of the relevant sexual offences—which includes rape—may be brought in the UK only where the offending behaviour is also an offence in the country where it happens. That is called dual criminality, which respects the notion that generally it is inappropriate for the criminal law of state A to be applied to conduct that occurs in state B where that conduct does not offend the law of state B. In most circumstances, the dual criminality requirement is not a barrier to prosecution because serious sexual offences against adults are likely to be criminal in most other countries. However, it could mean that, in some circumstances, UK authorities would not be able to prosecute someone for a marital rape committed outside the UK if such behaviour is not included in or exempt from the equivalent offence in the other jurisdiction. As it stands, the Bill applies a dual criminality requirement for the relevant sexual offences committed outside the UK by UK nationals and UK residents. My noble friend’s amendment would remove the dual criminality requirement for UK nationals, but not for UK residents. As explained by my noble friend, and by the noble Lords, Lord Paddick and Lord Kennedy of Southwark, the effect of this would be that the UK could prosecute UK nationals who commit marital rape against adult victims in countries where such behaviour is not criminal, but could prosecute UK residents who commit marital rape of adult victims abroad only if the behaviour is also criminal in the country where it is committed.
In principle, that is the right approach, as the link to the UK is stronger where the offending behaviour is perpetrated outside the UK by a UK national, rather than by a non-UK national ordinarily resident in the UK. Existing law already makes that distinction with regard to extraterritorial sexual offences where the victim is under 18. The amendments extend only to England and Wales and, as my noble friend identified, one would need to alter the drafting if they were to go further. However, I do not want to focus on the drafting issue. I am grateful to her for raising this important issue and possible lacuna in the Bill. Marital rape is abhorrent behaviour, and I agree that we should consider carefully the case for amending the Bill to cater for it. But—it is an important but—as the extraterritoriality jurisdiction provisions are UK-wide, we need first to consult the devolved Administrations to ensure a consistent approach across the UK. To that end, I respectfully invite my noble friend to withdraw her amendment on the clear understanding that we will give this matter serious and sympathetic consideration ahead of Report.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
My Lords, shall we see if we have the noble and learned Lord, Lord Morris, on the call? I do not think we do, sadly, in which case I call the Minister.
Lord Wolfson of Tredegar (Con)
My Lords, the noble Lord, Lord Marks of Henley-on-Thames, seeks to strike out—alone among the clauses in the Bill—Clause 69. I will endeavour to persuade him, and the rest of the Committee, that this clause, like others, can play an important part in protecting victims of domestic abuse. Right at the start, however, I join the noble Lord, Lord Marks, and the noble Baroness, Lady Hamwee, in thanking those at the MoJ who provided the presentation made to them. This was a very good example of how that sort of interaction—what one might call a learning session—can help everyone when we debate these matters in Committee.
Clause 69 allows the Secretary of State for Justice to introduce mandatory polygraph examinations as a licence condition for offenders convicted of a relevant domestic abuse-related offence. The relevant offences have included, until now: murder, specified violent offences, and the controlling or coercive behaviour offences set out in the Serious Crime Act 2015.
Polygraph examinations are already successfully used in the management of sexual offenders supervised by the National Probation Service. The clause extends the use of testing to include—in response to the noble Baroness, Lady Hamwee—high-risk domestic abuse perpetrators: those who have been released from custody having served a sentence of 12 months or more and are on licence.
The polygraph testing is used to monitor an offender’s compliance with other licence conditions, such as those restricting contact with their victim, requiring the offender to notify the probation officer when they form new relationships, or prohibiting entry into an exclusion zone; for example, around their victim’s home. It is also used to monitor dynamic risk factors such as alcohol or substance misuse.
I will try to respond to a number of questions asked by the noble Lord, Lord Marks, but if I miss any out, I undertake to write to him after reviewing the Official Report.
The policy underpinning these provisions does not allow offenders to be recalled to custody for failing a test. I use the word “fail” being cognisant of the fact that, as the noble Baroness, Lady Hamwee, said, we are not talking here about failing in the normal sense of the word. Indeed, I think the noble Baroness explained her approach to polygraphs as being somewhere between a yes and a no; that might be applicable to the polygraph itself. The clause does, however, enable offenders to be recalled for making disclosures during testing which, when considered with other evidence, suggest that the risk can no longer be managed in the community.
The offender can also be recalled to custody if he or she refuses to take the test or tries to trick it in some way; for example, by controlling their breathing. However, in response to the questions put to me, I draw the Committee’s attention to the fact that disclosures made voluntarily by the offender during the polygraph examination may reveal that they can no longer be safely managed in the community. Those circumstances would also lead to a return to custody. The important point to bear in mind in that regard is that that is no different from a situation in which an offender makes such disclosures without the polygraph licence condition.
Polygraph testing can be required as part of the licence conditions imposed on an offender following their release from custody. It can be imposed only where it is deemed necessary and proportionate to the risk posed. Importantly, in its report on the draft Bill the Joint Committee did not object in principle to extending polygraph testing to domestic abuse offenders; it sought assurance on two issues.
First, it sought an absolute assurance that no statement or data derived from a polygraph test would be used in criminal proceedings. The Joint Committee acknowledged that this appeared to be the effect of the draft Bill. In that regard, the provision in Clause 69 must be viewed alongside the existing provisions relating to polygraph testing in the Offender Management Act 2007. Section 30 of that Act provides unequivocally that any statement or any physiological reaction made by an offender during the polygraph session may not be used in criminal proceedings in which that person is a defendant.
To be clear, however, this does not preclude information derived from a polygraph examination being shared with the police, who may decide to use the information to conduct further inquiries. If, as a result of those inquiries, the police obtain other evidence that suggests that an offence has been committed, charges may be brought against the offender.
The second concern raised by the Joint Committee was that polygraph testing should not become a substitute for careful risk analysis—a point that, I think, was also made by the noble Baroness, Lady Hamwee. I assure the Committee that the use of polygraph examinations will not replace any other risk assessment tools or measures, such as the multiagency public protection arrangements—MAPPA—but will provide an additional source of information that would not otherwise be available.
The evaluation of the pilot mandatory polygraph testing for sexual offenders concluded that offender managers found polygraph testing very helpful. To date, 5,000 tests of that type have been carried out on 2,249 offenders, and 1,449 tests have resulted in the offenders making significant disclosures that led to either a refined risk management plan or recall to custody.
With regard to the qualifications of those carrying out the examinations, I assure the Committee that they are carried out by qualified and experienced probation officers who have completed three months’ residential training to become accredited polygraph examiners, and all polygraph examinations are quality assured by an independent external provider.
However, while the use of polygraph examinations is tried and tested, as I have said, in the context of the management of sex offenders, the Government accept that domestic abuse perpetrators represent a different cohort of offender. That is why we are committed to piloting the provisions in Clause 69. I draw the Committee’s attention to the commencement provisions in Clause 79, which expressly provides for such piloting; we will begin this as soon as is practicable after Royal Assent.
We intend to run a three-year pilot in the north of England, involving about 600 offenders. Half will be subject to testing and half—the control or comparison group—will not. The Cambridge Centre for Evidence-Based Policing, in collaboration with the University of Cambridge, will conduct an independent evaluation of the pilot, and only if the results were positive would we roll out testing across England and Wales. In response to the specific question put to me by the noble Lord, Lord Marks, in conjunction with his Amendment 191, I am happy to commit that the Government will lay a copy of the evaluation report before both Houses prior to any decision on wider rollout, enabling noble Lords to consider the findings in full. I hope that that is helpful in response to his question.
Given the benefits that we have seen with the use of polygraph testing to help us to manage the risk posed by convicted sex offenders, I apprehend that the noble Lord, Lord Marks, now sees the merit, at least in principle, of analysing the question of whether we can use the same procedure with regard to serious domestic abuse perpetrators. Indeed, last week, we heard calls for the more efficient and effective use of technology to protect victims of domestic abuse—Clause 69 does just that.
With the repetition of the point that I will go through the Official Report, because there may be one or two questions that I have not directly answered but which deserve and will get a written answer from me, I invite the noble Lord to withdraw his challenge to Clause 69, which I commend to the Committee.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
My Lords, I am afraid that we have had no luck getting in contact with the noble and learned Lord, Lord Morris, so I call the noble Lord, Lord Marks of Henley-on-Thames.
Lord Wolfson of Tredegar (Con)
My Lords, it might be most efficient for me to do just that. I will add it to the list of questions and respond in writing.
Lord Rosser (Lab) [V]
This amendment in the name of the noble Baroness, Lady Jones of Moulsecoomb, would add a new clause to the Bill to provide lifetime press anonymity for survivors of domestic abuse. It reflects similar protections for survivors of sexual assault enshrined in the Sexual Offences (Amendment) Act 1992, as the noble Lord, Lord Paddick, said. It prevents identifiable details being published online or in print and creates a new offence for breaching this anonymity.
This issue has risen up the agenda because stories are published in which victims and survivors of domestic abuse, as well as family members and children, are named. When these stories then make their way on to websites, victims have no anonymity but the people who choose to make comments do have anonymity.
Apart from the protection for survivors of sexual assault enshrined in the 1992 Act, I believe the Serious Crime Act 2015 grants anonymity to and protection for victims of female genital mutilation, and the Modern Slavery Act 2015 grants anonymity to victims of any human trafficking offence. If I am right, that is three examples of anonymity given to three categories of victims. If the Government are not enthusiastic about this amendment—which the noble Baroness, Lady Jones of Moulsecoomb, said is a probing amendment—no doubt they will explain in their reply why they consider that survivors of domestic abuse do not require the same protection as survivors of sexual assault, victims of female genital mutilation and victims of any human trafficking offence.
Lord Wolfson of Tredegar (Con)
My Lords, I hope I can be relatively brief in my reply—not because the point is not important, nor indeed out of a lack of respect for any of the contributions we have just heard, but because there is a single and critical point, fundamental to the administration of justice, which lies at the heart of this debate.
As the noble Baroness, Lady Jones, explained, this probing amendment is designed to protect the identity of complainants in domestic abuse cases by the automatic application of reporting restrictions from the point when the allegation is made. Although the noble Lord, Lord Paddick, referred us to Article 6(1) of the European Convention on Human Rights, I dare say that the principle of open justice goes back much further than that. We are all familiar with the adage that justice must not only be done, it must be seen to be done. That statement, with which we are all familiar, I am sure, recognises that automatic reporting restrictions of this kind are an exceptional interference with open justice. Therefore, we make those reporting restrictions available only when there is a real need to do so.
The most familiar precedent is in relation to complainants who allege that a sexual offence has been committed against them. In those circumstances, there is a clear justification for preventing the reporting of the complainant’s identity, because there is an overriding need for anonymity to be guaranteed from the outset so that victims of a type of offence that still carries considerable stigma are emboldened to come forward and tell the police. As the noble Lord, Lord Rosser, says, there are a couple of other such other examples in the law, but each of those is an exception to the general rule. We must be very careful, I would suggest, to limit those exceptions to cases where it is demonstrably required. Therefore, while I listened with care to the speech by the noble Lord, Lord Paddick, and his personal and, if I may say, moving testimony, we do not consider that, as a matter of generality, domestic abuse cases in which no sexual offence has been committed fall into the same category such that they require automatic protection in the same way.
However, as a number of noble Lords identified, that does not mean that victims of domestic abuse should be denied anonymity where they both request and need it. The courts have discretionary powers to impose, on application, reporting restrictions prohibiting the naming of a witness, where the court is satisfied that being identified would diminish the quality of that witness’s evidence. I suggest that there is sufficient discretion before the courts to meet cases where reporting restrictions are required. To go further would be an unjustifiable interference with the extremely important principle of open justice.
I hope, therefore, given that this is a probing amendment —and while of course I am always willing to discuss anything with the noble Baroness, Lady Jones—that she will feel able to withdraw her amendment at this stage.
Baroness Jones of Moulsecoomb (GP)
My Lords, I realise this is a tricky subject to legislate on, but I think there is a problem and we need to fix it in some way. I thank the noble Lords, Lord Paddick and Lord Rosser, for their largely sympathetic comments. I heard the Minister say that justice must not only be done, it must be seen to be done. In that case, I would like him to go, perhaps, one of these days, to the High Court and see what is happening in the spy cops inquiry, where Judge Mitting—or rather the Met—is giving anonymity to many police officers who have committed crimes. Therefore, it does seem to me that somehow there is justice for some and not for others. I will, of course, withdraw the amendment now, but I still think this is a problem and that there has to be some way of sorting it out.
Baroness Bertin (Con) [V]
My Lords, I support Amendment 161 and thank the noble Lord, Lord Kennedy, for tabling it and for being so tenacious. It is an honour to speak after the right reverend Prelate the Bishop of London. We cannot on the one hand spend years putting together a great Bill like this that says to victims, “We hear you; we are there for you; we want to help you escape”, and on the other hand stand by and allow those same victims to be potentially charged £150—an extortionate amount for many people—for proof of that abuse.
Domestic abuse does not discriminate. You can be a victim of abuse whether you are rich or poor. Unfortunately, while this fee remains, it does and will discriminate against poorer victims. Many of them will go without legal representation, many will return to an abuser and many will be seriously injured or worse as a result of being unable to access the legal remedies that are supposed to keep them safe. I know that the Department of Health has a fair amount on its plate right now, but it should endorse this small change to the Bill. It could have an immeasurable impact on people’s lives when they are at their most vulnerable.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to the noble Lord, Lord Kennedy of Southwark, for raising this matter—I am tempted to say “again”, but of course I should really say “again and again”. The list of engagements which he set out was impressive, and I fear I may not be able to provide satisfaction to the noble Lord where so many of my illustrious forebears have already failed. If I can put it this way: what he has said this evening has only increased my resolve to try to sort out this issue, not only because it is plainly an important matter to be addressed, as so many have said, but because it means that I will escape the horrid fate of being added to the noble Lord’s list.
The Government, as will be clear from what has been said by my forebears and what I have just said, wholeheartedly agree that vulnerable patients should not be charged by doctors for evidence to support them in accessing legal aid. That being the case, we are sympathetic to the spirit of this amendment. The issue requires further consideration ahead of Report for the reasons I will briefly set out. While I cannot commend this amendment to the Committee today, I will be looking at it in detail between now and Report. I should also take the opportunity to point out a couple of technical issues with the amendment, which I hope will also be helpful.
I am pleased that the noble Lord, Lord Kennedy, was able to meet with the Minister for Prevention, Public Health and Primary Care and representatives from the British Medical Association ahead of today’s debate to discuss the issue. I think it fair to say that everyone who attended this meeting was seized fully both of the issue and of its importance. As the noble Baroness, Lady Bull, said, we do not want to do anything to prevent or discourage victims of domestic abuse coming forward, and that includes questions of cost. That said, it is fair to say that there was some anecdotal evidence at the meeting which pointed to this perhaps being a diminishing problem, particularly since, as the right reverend Prelate the Bishop of London reminded us, the BMA issued advice to its members last year that they should not charge for this service, advice which they recently reinforced.
Following that meeting, the noble Lord, Lord Kennedy, graciously undertook to provide what evidence he had of this being a continuing issue so that we could consider the matter further. We look forward to receiving that evidence and continuing our discussions. However, as matters stand this evening, we remain to be persuaded that this issue needs to be resolved through primary legislation.
The position is that GPs can provide services in addition to NHS contracted services. They are classified as private services, for which they have the discretion to charge the patient. Letters of evidence to access legal aid is one such private service. It is therefore up to an individual GP practice to decide whether a charge should be levied and, if so, what it should be. However, as I indicated, as part of the 2020-21 contract agreement, the BMA recommended to all GPs that a charge should not be levied for letters of this kind. That is a welcome recognition by the BMA that, as was said, vulnerable patients with limited means should not be expected to pay for such letters. We recognise and commend the vast majority of GPs who are following that guidance, but it is a non-binding recommendation. As the noble Lord, Lord Kennedy, mentioned, we are informed of anecdotal examples where patients can be charged up to as much as £150 for that evidence.
As I said, I should make a couple of observations about the drafting of the amendment, although I recognise that these can be readily addressed in a further iteration of it. First, as currently drafted, the amendment refers to
“providing a letter … for the purposes of regulation 33(2)(h) of the Civil Legal Aid (Procedure) Regulations.”
That regulation was amended by later civil legal aid procedure regulations in 2017, so there is now no such regulation as presently referred to in the amendment. That is something that could be addressed in further drafting, and I respectfully suggest that it is.
Secondly, the amendment relies on the definition of a “general medical services contract” in Section 84 of the National Health Service Act 2006, which applies to England only. I assume that that is the case because, as the noble Lord is aware, the health service is a devolved matter in Wales and therefore this issue is a matter for the Welsh Government. I thought that it was worth making that point clear as well.
I return to the main point, on which, if I may respectfully say so, we have heard a number of very cogent speeches. I have not yet mentioned the contribution of my noble friend Lady Bertin, which was equally forceful. The Government remain committed to exploring options around this issue with the medical profession to ensure that vulnerable patients are not charged, and I would welcome the noble Lord’s continued help in this regard. In particular, once he has been able to provide what evidence he has of GPs continuing to charge victims of domestic abuse for these letters, we will be happy to have further meetings with him ahead of Report.
I hope that in the meantime he will feel able to withdraw his amendment, but he can rest assured that I have it ringing in my ears that I will face a similar amendment on Report if we cannot satisfactorily resolve the matter before that stage. I commit to working with him and to doing all I can to reach that satisfactory conclusion.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I thank all noble Lords who have spoken—the noble Baronesses, Lady Bull and Lady Bertin, and the right reverend Prelate the Bishop of London—for their support. I also thank the noble Lord, Lord Wolfson, for his very careful and considered response. It was very welcome.
The noble Lord made reference to the meeting. It was a very good meeting. We actually had four Ministers from three departments on Zoom—I have never had that before—so in that sense I was very pleased. Clearly, Ministers are taking this seriously, and I appreciate that very much.
Obviously, the technical issues can be ironed out. I am not a draftsman, but I am sure that we can get that sorted out. We have been raising this issue since 2016. The negotiations have been going on for a very long time, but we do not seem to have gone beyond the fact that everybody is against it, no one wants to do it, but no one wants to do anything about it. We have not moved on much from that position today.
As I said, I hope that I will not have to push the amendment to a vote at a later stage. I hope that I can work with the noble Lord to resolve this issue but, if that does not happen, we will divide the House. However, at this stage, I beg leave to withdraw the amendment.
Baroness Wilcox of Newport (Lab) [V]
I thank the noble Baroness, Lady Morgan, for bringing this much-needed amendment to the House and recognising that the changes that have occurred in the past few decades, since the widespread introduction of mobile phone technologies and social media coverage, have irreversibly changed the way in which we communicate. The inherent dangers of the misuse of that communication have become increasingly prevalent. As the noble Baroness said, we are living our lives online, and today’s debate is into its ninth hour.
As a former teacher of media studies, I taught my students that the medium is the message—but, like many of my colleagues, I had no idea at that time how exploitative the medium would become. The key element to this amendment is that the Bill as it stands does not do enough to ensure that survivors of technology-facilitated abuse have sufficient protection in the criminal law. Threats to share intimate or sexual images and films are an increasingly common tool of coercive control that can have enormous negative impacts on survivors of abuse. While the sharing of intimate and sexual images without consent is a crime, threatening to share is 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, by Professor Clare McGlynn and others at Durham Law School. This was launched at the Supreme Court last year, and it sets out the appalling consequences to victims of intimate images being posted without consent on the internet. Nearly half of the victim-survivors the researchers spoke to had experienced threats to share nude or sexual images and videos without consent. While many of these threats were followed by non-consensual sharing, there must be a recognition that threats to share such images can in and of themselves have significant life-threatening impacts.
The domestic abuse commissioner designate has also supported this addition to the law, saying:
“The threat to share an intimate image … is an insidious and powerful way that perpetrators of domestic abuse seek to control their victims, and yet the law does not provide the protection that is needed. Threats to share these images play on fear and shame, and can be particularly dangerous where there might be multiple perpetrators or so-called ‘honour-based’ abuse is a factor. What’s more, 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 victim-survivors isolated, often attempting to navigate alone an unfamiliar, complex and shifting terrain of legal provisions and online regulation. There needs to be a recognition in the Bill that image-based sexual abuse is a sexual offence, and an adoption of a comprehensive criminal law to cover all forms of image-based sexual abuse, including threats.
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 in preventing further abuse and getting away from their perpetrator. This amendment can close that gap in the law, and I urge its support in this Committee.
Lord Wolfson of Tredegar (Con)
My Lords, I will start with the point made by my noble friend Lady Bertin. It is of course late; I am conscious of that. But I have to say that it is worth staying up late to hear the debate we have just had, with the quality of the contributions to which we have all just listened. Therefore, I will take a little time—I hope not too long—to respond to the debate, because this is obviously a very important issue.
I listened with great care to the way in which the amendment was presented and explained by the four noble Baronesses who proposed it. My noble friend Lady Morgan of Cotes explained in detail how the threat to disclose such images can lead women to give way on matters that are of the utmost importance, whether that be contact with children or telling the perpetrator where they are now living. The story of Natasha that she shared was powerful and was added to by the stories of Rachel and Alison, which we heard from the noble Baroness, Lady Crawley. It is right to say, as my noble friend Lady Morgan put it, that this is an issue essentially of timing and not necessarily of principle. I will come back to that point a little later.
Domestic Abuse Bill
Lord Wolfson of Tredegar ExcerptsWednesday 3rd February 2021
(3 years, 9 months ago)
Lords ChamberRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 124-V Fifth marshalled list for Committee - (3 Feb 2021)
Lord Rosser (Lab) [V]
My Lords, I can be very brief in the light of what the two previous speakers have said on this amendment.
The purpose of this group of amendments, and a later group, is simply to provide consistency of protection for victims and survivors of abuse, across both the family and civil courts. These amendments would replicate in the civil courts protections that the Government already agree are needed in the family court. This seems an exceptionally reasonable ask. We support the aim of and reason for the amendments, as set out by the noble Lord, Lord Marks of Henley-on-Thames. I will be interested to hear from the Government why they have chosen to draft the Bill with this distinction between the courts.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, explained, these amendments seek to bring the procedure relating to special measures in civil courts in line with the provisions in family courts. We agree with the fundamental aim set out by the noble Lord: to ensure fair proceedings, meaning proceedings that are fair not only to the parties but to witnesses.
In that context, the Government’s starting point when considering the experience of vulnerable witnesses in the civil courts stems from the independent inquiry into child sexual abuse, which published its interim report and recommendations in April 2018. The inquiry recommended
“that the Ministry of Justice provides in primary legislation that victims and survivors of child sexual abuse in civil court cases, where they are claiming compensation in relation to the abuse they suffered, are afforded the same protections as vulnerable witnesses in criminal court cases.”
As the inquiry put it, this was to ensure that victims and survivors of child sex abuse can provide the best evidence in civil court cases.
While the Government had some sympathy with the recommendation, we also agreed that the issues raised by this recommendation needed further consideration, including whether it was right in principle to extend the protections to other vulnerable witnesses. The Government therefore sought expert help from the Civil Justice Council, which was asked to consider the vulnerability of parties and witnesses in civil actions, not just in relation to claims arising from sexual assault or abuse but more widely. The Committee will be aware that, after extensive consultation and expert input, the Civil Justice Council published its report in February last year. It conceded that there was no single or coherent set of rules in the Civil Procedure Rules dealing with vulnerability in the same way as there was in the Family Procedure Rules.
In this context, we must remember an important point, to which the noble Lord, Lord Marks, alluded. Civil cases, by their nature, have the potential to cover a much broader range of circumstances where there is no prior close connection between the parties; for example, where a victim is suing an alleged perpetrator of sexual abuse or in an action against the police or an employer where abuse is alleged. Of course, I take on board the noble Lord’s examples of cases where the parties may be corporate but, none the less, there are individual witnesses who are victims.
Having considered the matter, and in relation to special measures, the Civil Justice Council report did not go as far as recommending that it should be enshrined in primary legislation. Rather, it was felt that it was best left to the flexibility of court rules since—this is an important point—judges in civil proceedings already have inherent powers to order the provision of special measures under the Civil Procedure Rules when it is considered necessary. However, the Government took a slightly different view, taking the recommendations that came from the independent inquiry into child sexual abuse, which I have already mentioned.
As the Civil Justice Council report highlighted, vulnerability in the civil courts is not limited only to victims of domestic abuse. Some people may have mental or physical conditions that render them vulnerable and hamper their access to justice. Others, as with victims or survivors of abuse, may be vulnerable solely by reason of the subject matter of the proceedings before the court. This, as the report suggested, may affect their ability to participate in proceedings or give their best evidence.
We want to avoid—this is a risk—unnecessarily prolonging cases because of satellite litigation which revolves around the granting of special measures where the case is not contingent on vulnerability. At the same time, as I said, we need to ensure that the justice system is fair—that is, fair for all. Therefore, we must be careful to focus this provision on only the circumstances in which it is needed.
Even though the approach is different in civil courts, judges in civil proceedings already have inherent powers to order the provision of some special measures under the Civil Procedure Rules when it is considered necessary. I hope that this goes some way towards addressing the concern of the noble Lord, Lord Marks, which was shared by the other two speakers in this short debate; I acknowledge their contributions, of course, but I think it is fair to say that they largely agreed with the approach taken by the noble Lord. In that context, the Civil Procedures Rule Committee continues to examine the issues faced by vulnerable witnesses in civil courts.
While we want to ensure parity between each jurisdiction, we also need to build in allowances for the differences—and there are differences—between them. This is why the provisions in respect of cross-examination and special measures in civil cases differ from those in family proceedings.
In the light of my discussions with the noble Lord, Lord Marks, and others, and in the light of all the contributions in this short debate, let me say—in clear terms, I hope—that we very much appreciate the arguments raised in relation to fairness and the concerns around availability of special measures for those who will need them in the civil courts. We will consider this issue carefully ahead of Report and continue to listen to arguments. Of course, I remain open to discussion with both the noble Lord, Lord Marks, and others.
In the light of that confirmation and undertaking, I hope that the noble Lord will be content to withdraw his amendment.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, first, let me say how grateful I am to the noble Lords who spoke.
It was interesting to hear my rather dry opening supplemented by the personal experience of the work of the noble Baroness, Lady Bennett of Manor Castle, in courts in Australia. She made the valuable point that, generally speaking, litigants and witnesses are not used to being in court—it is a new experience for them and this adds to their concern, which is of course amplified in the case of vulnerable witnesses and parties. She also gave the interesting and important example of family farms giving rise to very personal disputes, where there is often a background of abuse. I am bound to say that, in my years of practice on the Western Circuit before doing more of what I do now, disputes about family farms were endless. They are to be taken into account. I am grateful to the noble Lord, Lord Rosser, for his support as well.
The Minister has given a considered response and ultimately made an undertaking to me and others. I am grateful for the way he has dealt with the amendments. However, I am bound to say that nothing I heard from him justifies the distinction to be drawn between the protection afforded in family proceedings and the protection available in civil proceedings. I got the impression that he understands the reasons why we have disputed that distinction.
I do not accept that a system based on the Civil Procedure Rules for protection in civil proceedings is anything like as good as a system based on statute, as the arrangements in family proceedings will be following this Bill. If a statutory arrangement is good enough for family proceedings and is applicable as appropriate for those, I would suggest that it is appropriate for civil proceedings as well. Nor do I accept that there is a realistic prospect of satellite litigation arising regarding the availability or withholding of special measures. That seems most unrealistic and, in any event, even if it were realistic, it would be no more realistic in a set of measures based on legislation than it would be presently in a set of measures based on the uncertain application of the rules of court. I welcome the Minister’s commitment to further engagement. I regard this as a very important issue, and I will of course speak to him, as no doubt will others, between now and Report in the hope of achieving agreement. I beg leave to withdraw the amendment.
Lord Paddick (LD) [V]
My Lords, I agree with the comments made by the noble Baroness, Lady Redfern, in a broader context. On the particular issue in this group, I have listened very carefully to the case made by the noble Lord, Lord Rosser, reinforced by the noble Baroness, Lady Newlove. The noble Lord talked about a risk assessment before cross-examination if someone has a history of abuse. Presumably he is referring to somebody with a history of abuse but whose convictions are spent under the Rehabilitation of Offenders Act. The noble Baroness, Lady Newlove, talked about repeat offenders. Repeat offending is very common when it comes to domestic abuse, but I wonder whether a perpetrator with a history of abuse, a repeat offender, is less likely to have spent convictions or cautions.
The Rehabilitation of Offenders Act is an important piece of legislation that allows offenders to move on from their previous offending, but my understanding is that if a court decides that justice cannot be done without the conviction or caution being taken into account, the court can take account of a spent conviction. This potentially means that a court could prevent cross- examination of a victim of domestic abuse if it decided that a spent conviction or caution was relevant.
I look forward to hearing the Minister’s understanding of the legislation as it is. We have no objection to the Government’s amendments in this group.
Lord Wolfson of Tredegar (Con)
My Lords, I will begin with the amendments tabled by the noble Lord, Lord Ponsonby, to which the noble Lord, Lord Rooker, so ably spoke, and will then turn to the government amendments, which deal with various technical and drafting changes to the same clause.
As has been explained to the Committee, Amendment 114, in the name of the noble Lord, Lord Ponsonby, would remove a qualification of the automatic prohibition on cross-examination in family proceedings by those convicted of, cautioned for or charged with specified offences, and their cross-examination by the victim or alleged victim. The removal of this qualification would mean that spent convictions and cautions under the Rehabilitation of Offenders Act 1974 would continue automatically to trigger the prohibition, irrespective of how old they may be or how circumstances might have changed. I respectfully agree with the noble Lord, Lord Paddick, that the Rehabilitation of Offenders Act is a very important provision. It enables a line to be drawn and people to move on.
It is in that context that, at the moment, the form of the Bill is that spent convictions and cautions should automatically trigger the prohibition only where evidence in relation to the conviction or caution is admissible in relation to the current family proceedings. However, as the noble Lord, Lord Rosser, reminded us, and as the Government fully acknowledge, the damage caused by domestic abuse may often last for decades, sometimes a lifetime, and well beyond the point at which a conviction or caution is spent. One must also consider the point made by my noble friend Lady Redfern, that the court process is daunting, especially for victims of abuse. Therefore, the noble Lord, Lord Rosser, is right to test the adequacy of Clause 63 in guarding against cross-examination which remains inappropriate despite convictions or cautions being spent. I am sure that all Members of the Committee will have been moved by the personal testimony of my noble friend Lady Newlove, when she explained the effect that such cross-examination can have.
However, the Government believe that Clause 63 provides adequate protection in such circumstances. We must bear in mind that the automatic prohibition on cross-examination is also triggered where a protective injunction is in place—that is the force of the new Section 31S—or where prescribed evidence of domestic abuse is provided to the court; that is the force of the new Section 31T. Moreover, and of greater importance here, given the sometimes more historical nature of abuse, is what we intend should become Section 31U of the Matrimonial and Family Proceedings Act 1984. This is an important provision, which provides context against which the noble Lord’s amendment should be considered.
New Section 31U is in deliberately broad terms and provides for a wide discretion to meet the particular facts and circumstances of the case before the court. It enables the court, either in response to an application or of its own motion, to prohibit cross-examination where it would diminish the quality of evidence or cause significant distress, so long as to do so is not contrary to the interests of justice. Any such direction will remain in place until the witness is discharged, unless it is revoked by the court in specified circumstances; for example, if circumstances have materially altered. Therefore, to answer the point made by my noble friend Lady Newlove, we consider the Bill sufficient in cases of spent convictions, because that provision enables the court to impose the ban if it appears to the court that the two conditions in new subsection 1(b) are met. That provision would therefore also deal with the point made by the noble Lord, Lord Rosser, concerning cases of past injunctions or restraining orders. New Section 31U is a very broad provision that enables the court to respond to the facts of a case and ensure that a suitable order is made. I agree with the noble Lord, Lord Paddick, that it is important that the court has this ability, for the reasons that I have set out, under new Section 31U. I hope that this gives the Committee, particularly the noble Lord, Lord Rosser, what they sought, which, according to my note, was clarity and assurance. I hope that I have provided both.
Member’s explanatory statement
This amendment makes a minor drafting change.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, we support this amendment for the reasons given by the noble Lord, Lord Rosser, as amplified by the noble and learned Lord, Lord Mackay, my noble friend Baroness Hamwee and the noble Lord, Lord McConnell of Glenscorrodale.
This amendment recognises that in cases involving domestic abuse, just as in any litigation, engagement between the parties is not limited to conducting the case, giving evidence, cross-examining witnesses and making submissions to the judge. The noble and learned Lord, Lord Mackay, pointed out that the inadequacy of arrangements that govern cross-examination alone make such arrangements difficult to justify.
There is often a need for the parties to consider and discuss the conduct and progress of the case, as the noble and learned Lord, Lord Mackay, pointed out. That is usually done through their advocates. Yet when the parties are perpetrator and victim of domestic abuse, and are unrepresented, the need for engagement can become an occasion for intimidating behaviour or bullying of the victim by the perpetrator. That need not even be deliberate, though it often is. Even if intimidation is not explicit in court, it may be effected by implied threats of what might happen later, or even by fear on the victim’s part—even if without justification —of what might happen later.
As discussed in earlier groups, the mere presence of the parties together in court can cause distress, intimidation, or trauma to victims. The outcome can be that victims are deterred from bringing proceedings at all. The experience of the proceedings can be grossly traumatic, to the extent of causing lasting harm, and just outcomes can be made that much more difficult to achieve. So, it is completely right that the court should be able to prohibit engagement by a party that unduly distresses the victim in the way set out in this amendment, whether that engagement be direct by the perpetrator or indirect through others. Yet, if the parties have no means to engage at all, there may be opportunities missed for resolving conflict or, at least, for making the issues clearer and enabling the court to achieve safer outcomes.
In cases where the parties are not represented, it is obviously sensible for there to be provision for representation to be arranged. As the amendment proposes, that should involve, in appropriate cases, the instruction of a court-appointed lawyer—not just for the perpetrator but for the victim as well. That is what the amendment proposes and I firmly believe it is right to do so. For my part, I believe that justice would be best done by ensuring that full legal aid is available for both parties to domestic abuse proceedings throughout those proceedings, which often last through several hearings, as the noble Lord, Lord Rosser, my noble friend Baroness Hamwee and the noble Lord, Lord McConnell, have said. The noble Lord, Lord McConnell, also highlighted the real risk of deterring litigants from bringing or pursuing proceedings once they are under way, by the absence of arrangements for representation.
This amendment does not go as far as we would like, but I know many noble Lords believe that full legal aid for both parties should be the outcome. Meanwhile, it would fill an important gap by preventing intimidation of victims by perpetrators during the course of proceedings, while keeping the door open to engagement between lawyers, which may smooth a path to resolution.
Lord Wolfson of Tredegar (Con)
My Lords, as the noble Lord, Lord Rosser, has explained, this amendment —to which my noble and learned friend Lord Mackay of Clashfern has added his, if I may respectfully say, very weighty name—seeks to expand the scope of the prohibition of cross-examination provided for in Clause 63 by prohibiting the perpetrator from engaging directly or indirectly with the victim during proceedings where that engagement would cause them significant distress. It goes on ultimately to provide for the potential appointment of a legal representative, chosen by the court, to represent both parties to ensure a fair process in the interests of justice in such cases. I can assure the Committee, in particular in response to the points made by my noble and learned friend Lord Mackay of Clashfern and others, that because this amendment has been supported by the Magistrates’ Association, we have given it very careful consideration.
As the noble Baroness, Lady Hamwee, explained, I am as every bit as concerned as her, and indeed the noble Lord who is proposing the amendment, to ensure that domestic abuse victims are adequately protected in the family courts. It is for that reason that the Government are already taking decisive steps to act on the recommendations of the Expert Panel on Harm in the Family Courts, in response to which we published our implementation plan in June 2020.
The Bill contains various measures designed to protect domestic abuse victims in family proceedings and across the other jurisdictions. In that context, I bear in mind the point made by the noble Lord, Lord McConnell of Glenscorrodale: the human impact that domestic abuse has, and that it can require some bravery to go to and appear in court in those circumstances, a point also made by the noble Lord, Lord Marks. Therefore, within the court environment, our provisions on special measures made it clear that the victims of domestic abuse and other parties or witnesses are eligible for special measures such as a screen during proceedings, where the court is satisfied that the quality of their evidence is likely to be diminished due to their vulnerability. In that context, on the point put to me by the noble Lord, Lord McConnell of Glenscorrodale, regarding the position of children, Clause 3(2) provides that any reference in the Bill to a victim of domestic abuse
“includes a reference to a child who … sees or hears, or experiences the effects of, the abuse, and … is related to A or B.”
Therefore, the Bill is structured very much with victims of domestic abuse, who may include children, firmly in mind.
It is not entirely clear from the noble Lord’s amendment whether the intention is that “direct or indirect engagement” during proceedings be confined to the court setting, by which I mean what goes on in the courtroom itself, or extend more widely for their duration, as set out in debate by my noble and learned friend Lord Mackay of Clashfern and repeated by the noble Lord, Lord Marks of Henley-on-Thames. There is often a need for what my noble and learned friend called personal and direct contact between parties in such proceedings. In that regard, one must bear in mind that under Part 3 of the Family Procedure Rules 2010, the court can make a participation direction. That can include the use of special measures, which are a series of provisions to help a party or witness to participate or give evidence in court proceedings. That is a range of measures available both to parties and witnesses to enable them to participate in an appropriate manner.
Beyond that, the courts have a range of protective orders, such as non-molestation orders and restraining orders, that can be made to protect victims when they are not within the confines of the court building. In addition, when introduced by the Bill, domestic abuse protection orders can be used to protect victims of domestic abuse outside the courtroom during proceedings. That is because the DAPO brings together the strongest elements of the existing protective orders into a single comprehensive and very flexible order that we believe will provide more effective and longer-term protection than the existing protective orders for victims of domestic abuse and their children. I underline the point that there may be circumstances in which children are also victims. So, for example, if children are giving evidence inside court, special measures may well be applicable and the prohibition on cross-examination may also apply.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to the noble Lord, Lord Marks, for setting out the rationale for these amendments. As he said, I deferred my comments on the particular point of an advocate’s duty to this group because his amendments directly raise that issue. I am grateful to him for the discussions we had about this matter, as indeed we have had about several matters arising from the Bill.
Amendments 122 and 127 would have the same effect in relation to a qualified legal representative appointed by the court to conduct cross-examination in family and civil proceedings respectively. It is the Government’s intention that such a court-appointed representative is not responsible to any party. They are, in effect, appointed by and responsible to the court in relation to their conduct of the cross-examination, having regard to guidance issued by the Lord Chancellor in connection with this role under what we intend should become Section 31Y(1) of the Matrimonial and Family Proceedings Act 1984.
As I think the noble Lord, Lord Marks, accepts, the amendments would alter fundamentally the representative’s role by making them responsible to the party who has been prohibited from carrying out such cross-examination. While the tabled amendments contain safeguards to counter the resulting tension between being responsible to the prohibited party on the one hand and needing to protect domestic abuse victims on the other by requiring the representative to have regard to protective directions issued by the judge, this does not affect the Government’s view that, as a matter of principle, the representative who has been appointed by the court should not be responsible to the party. That is particularly the case when that party could have, but has not, appointed his own lawyer. Had he done so, a court-appointed lawyer would not have been required and the lawyer appointed by him would have owed him a duty.
Therefore, the Government do not want this to become a client-lawyer relationship. The advocate is appointed for only one function: to ensure that the best evidence is obtained fairly from the witness in cases where the party is prohibited from conducting the cross-examination by themselves. Altering this and introducing such a relationship between the party and the advocate would, in the Government’s view, be a mistake.
The rules pertaining to the advocate scheme will be set out in statutory guidance and relevant procedural rules. Consistent with what I have been explaining to the Committee, the focus will be on ensuring that the function of a cross-examination is carried out—that the witness is questioned on the evidence that they have provided. Before these provisions are commenced, we will work with relevant stakeholders to develop and finalise statutory guidance, to be issued by the Lord Chancellor, for the appointed legal representatives to assist them in discharging this role. We will work with the appropriate rule committees to develop suitable court rules and practice directions to provide a clear structure and process for the operation of these provisions.
For those reasons, we take issue with the proposal in the amendment. Although I hear what the noble Lord, Lord Marks, said about SIAC and court-appointed advocates there, those are completely different circumstances and there is no read-across from SIAC to these provisions. The way that the Bill is set out reflects the Government’s deliberate intention and the clauses have been designed with this in mind.
The framework for the provision of publicly funded legal representation is set out in the LASPO Act. While I have listened carefully to the arguments made on this point, both today and in previous discussions, I do not agree that we should mix the different purposes of LASPO and these clauses as has been proposed. As anticipated by the noble Lord, Lord Marks, I refer to the review that I mentioned in the last debate.
Amendments 123 and 128 relate to the provision of legal aid. Legal aid is available for family cases where there is evidence of abuse, subject to domestic violence, or child abuse evidence requirements, and the relevant means and merits tests. We have expanded the acceptable forms of evidence and removed all time limits on providing that evidence. As I have said, we are also reviewing the means test. The Government are clear that victims of domestic abuse must have access to the help that they need, including to legal aid. The review of the means test is assessing the effectiveness with which that test protects access to justice. As I said in the last debate, we are specifically considering the experience of victims of domestic abuse. I will not repeat the other points I made in that context in the previous debate.
However, legal aid may also be available through the exceptional case funding scheme, where a failure to provide legal aid would breach or risk breaching the ECHR or retained enforceable EU rights. As I have explained, the Bill includes provisions that give the court a power, in specified circumstances, to appoint a publicly funded legal representative to conduct cross-examination. Where a prohibition on cross-examination applies, the court would first consider whether there are alternatives to cross-examination and invite the party to appoint a legal representative to conduct the cross-examination. In circumstances where the party does not, the court considers whether it is in the interests of justice so to appoint. Therefore, publicly funded legal representation is intended to conduct the cross-examination, but not to go beyond it. That is the sole reason why the advocate is appointed.
In that context, we must appreciate the need to protect against unnecessary expenditure of public funds or alteration of the legal aid regime without a wholesale and proper examination of the ramifications of doing so. In circumstances where this provision for a publicly funded advocate is put in the Bill for a limited and specific—if I can still use that phrase—purpose, it would be wrong in principle for us to conduct a review of legal aid provisions in Committee.
I fear that I may not have been able to persuade the noble Lord, as I was not able to persuade him earlier, of the merits of the Government’s approach. I am sure he will tell me that I have not, but I hope that I have been able to explain the Government’s approach and thinking on this issue. In those circumstances, I invite him to withdraw the amendment.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, unquestionably the Minister—to whom I am very grateful, for both his engagement and his considered and careful response—is right about one thing, which is that he has not convinced me of the difference in responsibility to the client between court-appointed advocates and normal lawyers. I accept that the role of legal representative would be altered by my amendments, and that is all to the good.
One point made by the Minister can be considered in a way that he did not. It is a precondition to the appointment of a legal representative by the court that the client or party who would have conducted the cross-examination, but for the prohibition, should have been given the opportunity to instruct his own lawyer. That lawyer would have had full responsibility to the client in the normal way—full duty of care, answerable in negligence and everything else. Generally, Members of the House will appreciate that the reason that that condition is not often met—in other words, the client does not appoint a lawyer—is lack of funds, not that he or she, usually he, does not wish for the lawyer to have a responsibility to the client. There is very little distinction to draw between the two cases, apart from the fact that the rich client gets the lawyer and the poor client has a court-appointed lawyer.
The Minister referred to the safeguards that I built into the amendments in their directions to the judge—
“such directions as the Court may give to protect the witness from significant distress or to prevent the quality of the witness’s evidence from being diminished.”
There may be further room for discussion about those directions and the guidelines within which cross-examination by a lawyer with a responsibility to the client could take place. I will carefully read the guidance that he mentions by which court-appointed lawyers will conduct their cross-examinations.
I completely reject the Minister’s explanation that SIAC involves different issues, as a justification for removing the responsibility. It is precisely because SIAC special advocates and their appointment involve different issues that the responsibility is removed. I explained that in opening. That point does not seem to have been treated with full understanding.
Of course I will withdraw this amendment to enable further review. The point about legal aid is one of accessibility. We know that there is a review under way and I accept that we should not be reviewing this question in Committee, but the problem is one of evidential and financial accessibility. Until both parties can be represented in domestic abuse proceedings, it is difficult to see that proper representation will be achieved. With those points, I beg leave to withdraw the amendment.
Lord Wolfson of Tredegar (Con)
My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, has explained, these amendments intend to bring the provisions relating to prohibition of cross-examination in civil courts into line with the provisions on the same measure in family courts. As the noble Lord explained, we have covered some of the questions of principle already in earlier groups. He indicated that he was therefore going to be brief—as he indeed was—and I hope that both he and the Committee will not take it as any disrespect if I am equally brief in response, given that we have canvassed the points of principle already.
The noble Baroness, Lady Bennett of Manor Castle, described herself as a “support act”, an appellation with which I respectfully but firmly disagree. She spoke eloquently in an earlier group of her personal experience of seeing how court procedures operate in cases involving domestic abuse, and her contribution to this short debate has been equally valuable. I hope that the noble Baroness, Lady Fox of Buckley, will forgive me if I gently point out to her that she should not apologise for not being a lawyer. What is apparently, based on my short time here, a repeated cause for apology in this House is generally regarded as a badge of honour everywhere else.
Turning to the substance, let me explain that the approach we have taken in civil cases differs from that taken in family proceedings for good reasons. The clause dealing with banning cross-examination of vulnerable parties or witnesses stems from the report by the Civil Justice Council, to which the noble Lord, Lord Marks, also referred, and which I spoke about when commenting on the amendments to Clause 62.
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. Importantly, however, the Civil Justice Council cautioned that the ban or prohibition should not be absolute: rather, it should be left to the court’s discretion, given that, as I explained in an earlier group, the civil and family jurisdictions are very different as regards the types of cases, with the civil jurisdiction having a much wider range. As I also said earlier, those cases can have a much broader range of circumstances, where there is no prior close connection between the parties, as there would generally be in the family courts. We have therefore tailored our approach to allow for those differences, which is why the provisions in respect of cross-examination in the civil jurisdiction differ from those in family proceedings. I hope that that explains my thinking to the noble Lord, Lord Marks.
In response to points made by the noble Baronesses, Lady Bennett of Manor Castle and Lady Fox of Buckley, I say it is important that two things are fundamental. First, it is important that protection is available to all witnesses who need it—this was the point made by the noble Baroness, Lady Bennett. In response to the point of the noble Baroness, Lady Fox, the court will of course look at all circumstances in that regard. The overriding concern is to ensure that justice is done in the particular case, which is why leaving it to the discretion of the judge in an individual case to decide when a ban is necessary is based on an unlimited range of factors, including, obviously, the views of parties to the proceedings, any past convictions or the behaviour of parties during the trial. That is how we suggest this matter is best resolved.
Having said all that, I respectfully say that the noble Lord, Lord Marks, has put forward, as one would expect from him, a cogent and well-argued case for his amendment. As such, while we consider that the approach taken in the Bill in relation to the civil courts is well founded, and certainly not—to use a word adopted earlier in this debate—illogical, I hear the arguments he put forward and undertake to consider these amendments further ahead of Report. I will continue to listen with interest to any arguments made by him or others in this regard. Therefore, given this undertaking, I hope that the noble Lord will be content to withdraw his amendment.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, once again, I am grateful to all noble Lords who have spoken in this debate. I certainly agree with the noble Lord, Lord Wolfson, that the noble Baroness, Lady Bennett of Manor Castle, has proved herself much more than a support act. I say to her and the noble Baroness, Lady Fox of Buckley, that there is a crying need in these legal debates for experience from outside the law to inform our debates and bring the lawyers down to earth.
Many noble Lords may well have formed the view that the differences between the noble Lord, Lord Wolfson, and me are arcane legal arguments, in some senses—but we can only have those arcane arguments in a relevant way if we have real-world experiences to back them up. Some of these will be ours, but the noble Baroness, Lady Bennett of Manor Castle, not only clearly demonstrated how the principles that apply to cross-examination in civil proceedings also apply in family proceedings; she also graphically described the personal experience of witnesses in court proceedings. I challenge anyone to explain why that experience differs between the two types of proceeding, where witnesses are, or are liable to be, victims of domestic abuse and are vulnerable.
Although I greatly valued the contribution of the noble Baroness, Lady Fox of Buckley, I do not agree with her that this legislation or these and other amendments overstate the significance of vulnerability or trauma, when the evidence is serious and extensive of how deep vulnerability can go, how serious the trauma can be and how long-lasting it can be as a result of domestic abuse. That is the reason why the Government have brought this Bill; it is why it is widely welcomed around the House and the reason for the protections that are afforded to witnesses and parties in court proceedings.
I come to the noble Lord, Lord Wolfson, who frankly accepts the differences and parallels between us in respect of cross-examination in cases of special measures. I do not accept that a discretionary system in relation to the prohibition of cross-examination is an acceptable substitute. One of the principal reasons for this is that a party or witness has no assurance that there will be a prohibition in a discretionary case. She—or, in some cases, he—is totally reliant on judicial discretion having regard, as the Minister says, to all sorts of other factors, including previous convictions and all the circumstances of the case, in relation to knowing whether a prohibition of cross-examination will be extended. This means that such a witness or party is exposed to the risk that there will be direct cross- examination, which they may well be unable to face.
I am very grateful to the Minister for his undertaking that he will consider these amendments further; I know that that undertaking is given with every intention that he will do so. I and others remain completely open to discussing these amendments with him and refining them if necessary, but we hold the basic belief that vulnerable witnesses need protection from direct cross-examination on exactly the same basis in civil cases as is to be extended in family cases. Saying that, I beg leave to withdraw Amendment 124.
Baroness Burt of Solihull (LD)
My Lords, there has been a varied response to the Bill. What has come out of it is that nothing is as simple as it might appear in situations of the kind described. The somewhat harrowing example given by the noble Baroness, Lady Meacher, underlines that.
As we have heard, Amendments 130 and 130A seek to change the presumption that it is in the welfare of a child to have unsupervised contact when one parent has either a domestic abuse conviction or court proceedings against them. The noble and learned Baroness, Lady Butler-Sloss, told us that she does not like presumptions and that we need to consider all the circumstances—that has certainly come out of this afternoon’s debate.
As we know, the presumption of the courts is that it is in the welfare of the child for both parents to have access now, everything else being equal. However, when one parent is accused of abusing or has abused the other parent or the child, or they are subject to a Crown prosecution case, everything is most decidedly not equal. We have discussed enough times during the course of the Bill just how difficult and stressful a domestic abuse situation can be for a child, who can be used and abused as a pawn between warring partners. And it can get far, far worse than that.
Several noble Lords used statistics to back up this argument. Mine come from the charity Refuge, which, in partnership with a Sunday Mirror journalist, conducted an investigation which found that, between 2004 and 2019, 63 children were killed at the hands of a domestic abuse perpetrator who had contact with their children after being convicted of a serious criminal offence. Refuge reports that the actual figures of child harm are even higher, with many children dying from other causes, such as neglect. This is the danger of under- estimating the risk that perpetrators can pose to their children. It does not apply to all perpetrators, of course; many who have committed domestic abuse against their partners are different altogether with the children—a point another noble Lord made.
We should also consider how previous matters are taken into consideration. In particular, my colleague and noble friend Lord Marks gave an example of a previous situation in which domestic abuse took place, perhaps in a previous life. But domestic abuse still figures in that situation, so if an alleged perpetrator has a previous domestic abuse conviction, it would be better to be safe than sorry.
The noble Baroness, Lady Jones of Moulsecoomb, moved Amendment 130A, as an amendment to Amendment 130, which takes matters a little further to include fact-finding hearings in the family courts, which most commonly concern domestic abuse. In such hearings, it is for the person making the allegations to prove that they are true. The judge considers on the balance of probabilities whether the allegations are true or not. The presumption in Amendment 130 is therefore extended while the hearings take place. I think it is better that, where there is a previous conviction, even with another partner in a different situation, it is still far better to be safe than sorry.
I hope that the Minister will be minded to consider these amendments carefully and, if necessary, make changes to make them a little better on Report.
Lord Wolfson of Tredegar (Con)
My Lords, as the noble Lord, Lord Rosser, has explained, Amendment 130, formerly in the name of the noble Lord, Lord Ponsonby of Shulbrede, seeks to make it clear that the presumption that parental involvement furthers the child’s welfare cannot apply where there is evidence of domestic abuse. It also seeks to prohibit unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences or where there are ongoing criminal proceedings for domestic abuse.
Amendment 130A in the name of the noble Baroness, Lady Jones of Moulsecoomb, extends this. It seeks to prohibit unsupervised contact for a parent pending a fact-finding hearing in family proceedings or where domestic abuse is alleged or is proven—either in such a fact-finding hearing or as the result of a criminal conviction for a domestic abuse offence.
Before proceeding, I hope the Committee will forgive me if I make two overarching points. First—and I say this respectfully, given my short time in this House—the debate we have just had shows the value and importance of Committee stage. A number of contributors have listened to and considered the points that have been made and, on occasion, have changed their position. There is nothing wrong with that. If I have one regret—and again I say this respectfully—it is that our PR means that the value of these Committees is not as well understood outside this House as it is within it.
Secondly, in the last debate, the noble Lord, Lord Marks of Henley-on-Thames, made the point that what seems an arcane legal matter to lawyers—and perhaps to others in this Chamber—is improved by real-world experience and examples. In this debate, contributions from the noble Baroness, Lady Jones of Moulsecoomb, and the noble Baroness, Lady Meacher, have done just that. I agree with the noble Baroness, Lady Meacher, that anecdote is not evidence and that we must have research. I will come to this issue later in my remarks. Hearing the case of an eight year-old girl unlocking the front door to catch a bus to get to her father’s house is a powerful example. The image of a child saying his last words to a fireman in a smoke-filled attic will stay with me, and rightly so. It reminds me that, although we are debating words on paper, they have consequences in the real world. I am sure that many, if not all, noble Lords will feel the same.
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. To that extent, I agree with the noble Baroness, Lady Jones of Moulsecoomb, that we should seek to remove stress from children, in so far as we can. That was why, late last year, following the recommendations from the Expert Panel on Harm in the Family Courts, the Government launched a review on the presumption of parental involvement. Importantly, the panel did not call for immediate legislative change. Instead, it recommended a full review. They were right to do so. As the noble Lord, Lord Rosser, said and as noble Lords will be aware, this review is under way. As the noble Baroness, Lady Meacher, said, it will give us important data, research and a considered analysis.
The review will focus on the presumption—and its exception—and the impact on children’s welfare of the courts’ application of these provisions. It will allow us to build a stronger evidence base and ensure that any changes brought about as a result are rooted in a solid understanding of the effect of the presumption and the associated evidence on child welfare. It would therefore be premature to amend the legislation relating to the presumption, including Section 9 of the Children Act—as proposed in the amendment—before gaining the in-depth evidence from the review.
It is worth highlighting that the current legislation on the presumption makes it clear that it should be disapplied where there is risk of harm to the child. This means that the risk of harm from a parent perpetrator of domestic abuse should already be taken into account by the courts. As the noble Lord, Lord Marks of Henley-on-Thames, reminded us, Section 1 of the Children Act 1989 makes the child’s welfare paramount. It should also ensure that courts consider the risk of a child suffering harm, or further harm, when deciding on any aspect of the child’s upbringing.
Some noble Lords asked how contact between a child and a parent who has committed domestic abuse, or against whom it has been alleged, could ever be in the best interests of the child. The short answer is that this is not an easy question, but it is for the courts to decide in each case, taking into account all the evidence presented to them. The noble and learned Baroness, Lady Butler-Sloss, has vast experience in this area. She gave us an example of such a possible case. She also made an important point about judicial training, which we shall come to in a later group.
In addition to my general point that this issue is catered for in the current statutory architecture, there are two further problems to which the amendments would lead. First, domestic abuse is only one of many circumstances which may impact on a child’s well-being and safety. By expressly referring to it, these amendments could be seen to give domestic abuse prominence over other valid considerations which the court should take into account in deciding whether such an order would be in the best interests of the child—for example, other sexual or violent offending, or a history of or allegations of child abuse. I say this without downplaying in any way the importance and effect of domestic abuse.
Secondly, as a number of contributors have said, the second part of the amendment would lead to an automatic ban. The court could not exercise discretion. If we legislate to create automatic bans on a particular form of contact, there may be concerns that we are not allowing courts to take sufficient account of whether there are risks to the child in the particular circumstances of the case. Risks and rights must be weighed carefully, allowing courts to assess each case on its merits. The noble Lord, Lord Marks, gave an example where, on the facts of the case, a court might want to permit contact.
Other noble Lords, who are not lawyers, have also contributed to this debate. My noble friend Lord Randall of Uxbridge summarised it very well—so much so that he led the noble Lord, Lord Rooker, to tear up his speech. This must be a rare, if not unique, occurrence. The noble Baroness, Lady Meacher, said it was “likely” that the court would reach such a conclusion. This is the point I am making: it may be likely, but we should not force the court to do so. We should not remove the court’s discretion. Ultimately, the court should make the decision, based on all the facts of the case. Furthermore, it is not clear from the terms of the amendment whether such bans, if they prevent unsupervised contact following a conviction or finding of fact, would or should be capable of being lifted or modified if the risks in an individual case materially change. I respectfully agree with my noble friend Lady Gardner of Parkes when she said that she was not persuaded that the amendment was necessary, and that it might have unintended consequences.
I also agree with the point made by the noble Baroness, Lady Burt of Solihull: that nothing is as simple as it first appears in this area of the law. There are risks on all sides in this area, so to speak. There are risks of contact and, as my noble friend Lady Altmann reminded us, there are risks in preventing contact as well. I therefore suggest to the Committee that the approach in the current legislation, which was identified and explained by the noble and learned Baroness, Lady Butler-Sloss, with, if I may respectfully say so, her customary clarity, is the correct one.
Lord Wolfson of Tredegar (Con)
My Lords, I am very grateful to my noble friend Lady Bertin and the noble Lord, Lord Rosser, who have spoken to the amendments tabled by the noble Lord, Lord Ponsonby. The amendments relate, as has been said, to a number of different aspects of the family courts. I hope it will be convenient for the Committee if I take each amendment in turn.
I turn first to Amendment 131, tabled by my noble friend Lady Bertin, which, as she says, is a probing amendment. It recognises the crucial role of refuges in supporting victims of domestic abuse and their children. I must thank my noble friend for her time in being willing to discuss with me this amendment, and indeed others.
The amendment raises two important issues. I will first address that of the disclosure of the residential addresses of refuges. Existing legislation and family court procedural rules allow parties to apply to withhold their address and that of their children from other parties. There is therefore no requirement for those engaged in family court proceedings to disclose their address. During family court proceedings, when adequate information about the location of a child is not known to the court, the court can order any person who may have relevant information to disclose it. In those circumstances, details of the child’s address and who they are living with are disclosed only to the court, not the other parties, in the first instance. The court then determines how that information should be used. Where there are allegations of domestic abuse, the court can and does hold that information as confidential. The noble Lord, Lord Rooker, said that this was of critical importance and the noble Lord, Lord Marks, said it was essential, and I do not dissent from that.
Subsection (3) of the proposed new clause would prevent the service of a court order at a refuge’s residential address. I fully appreciate that victims living in a refuge are fearful for their safety, and that receiving or witnessing the service of an order at a refuge could be very distressing. In that context, I take on board the point made by the noble Baroness, Lady Hamwee, that one must bear in mind the position of other occupants of the refuge as well. In that context, therefore, the two cases illustrated by my noble friend Lady Bertin are concerning.
However, I am clear that there are contexts in which the court may need to serve an order on a party at the refuge they are staying in, and where not doing so may pose unintended risks to the safety of children involved in family law proceedings. For example, there may be a concern that a child might imminently be taken out of the jurisdiction. The welfare of the child is of key concern in family court proceedings. Where the courts have urgent welfare considerations, they must be able to take swift action to locate the child. We must not risk impeding the court’s ability to act immediately to safeguard a child by limiting the addresses at which an order can be served.
As my noble friend has outlined, the courts may already direct bespoke service arrangements based on the facts of a case. The Family Procedure Rules 2010 allow for court orders to be served at alternative addresses, such as the refuge office address, if that is suitable. Of course, as the noble Baroness, Lady Hamwee, and the noble Lord, Lord Marks, pointed out, it may not always be suitable. As such, I am confident that the important outcomes sought by my noble friend are already provided for in existing legislation and court procedure.
I should add in this context that the Family Procedure Rules, as I have said, allow for parties to apply for their contact details to be kept confidential from other parties. But even where such an application has been made, parties retain responsibility for ensuring that any form or document they submit to the court does not contain the information they wish to keep private. We have to consider in this context documents received from other people, such as medical reports or financial statements. It is difficult, if not impossible, for court staff to check all documents submitted to the court for any unintentional—I emphasise unintentional—disclosure of contact details.
Therefore, given that background, I submit that the proposed clause is unnecessary and, perhaps more importantly, would bring with it some obviously unintended, but very real, potential risks to some of our most vulnerable children. Existing legislation and rules allow for the protections sought through this amendment. But we recognise that, as we have been told in a number of cases this evening, concerns have been raised in individual cases before the courts. The Government are committed to protecting vulnerable victims of domestic abuse, and of course this extends to those residing in refuges in particular. We actively work with members of the judiciary, who are committed to exploring whether and how existing procedures and guidance could be strengthened to ensure that those residing in refuges are protected.
Before I turn to the next amendment, I once again thank my noble friend Lady Bertin for raising this issue, both by way of this amendment and in her discussions with me on this matter. It is clear that, across the Committee, we share the same aim—the only real question is how we best achieve it.
As the noble Lord, Lord Rosser, has explained, Amendment 132 seeks to place a duty on courts to share information relating to victims or those at risk of domestic abuse, and imposes an obligation on the family court to consider making a barring order where information shared by another court identifies that court proceedings may be being used to continue abusive behaviour towards the victim.
I have a great deal of sympathy for the aims of this amendment, and I agree that better information sharing, in particular between the family and criminal courts, on the issue of domestic abuse is important. The noble Lord, Lord Rosser, was kind enough to acknowledge that there were some drafting issues with this amendment. Indeed, there are such issues, and therefore I hope the Committee will find it helpful if I reply on the questions of principle and not on points of drafting.
The Government are actively considering what more can be done to improve the sharing of information between civil and criminal courts dealing with family proceedings, including through the development of integrated domestic abuse courts, which will be piloted later this year and seek to progress family and criminal cases in parallel. I hope that goes some way to meeting the concerns expressed this evening by my noble friend Lady Newlove.
In particular, I draw to the Committee’s attention the recent amendment to the Criminal Procedure Rules, which comes into effect on 5 April. This will impose a duty on parties to criminal proceedings to alert the criminal court to any related family proceedings, and it encourages the exchange of relevant information with a court dealing with those proceedings. We consider the issue of information sharing between the jurisdictions to be more appropriately addressed through procedural rules, rather than in primary legislation, because the court processes are somewhat technical in nature, I am afraid—and, of course, one has to bear in mind the often technical nature of management information systems.
Alternatively, there is also the issue here of judicial guidance, where the court has a discretion over what information should be shared and with whom. I assure my noble friend Lady Verma that, in that context, the position particularly of women from minority communities, who may be more affected by the sometimes siloing nature of our court processes, is kept very much in mind. How to access support and manoeuvre one’s way through the system once one is in it is of central importance in this context.
I move on to the related but separate issue of the use of Section 91(14) orders under the Children Act 1989, often referred to as “barring” orders. The amendment proposes that the family courts are placed under a duty to consider such an order where it appears, based on information shared by another court, that cases are being brought by a perpetrator of abuse as a means to carry on their abusive behaviour.
The noble Lord is right to raise the issue of perpetrators using the family courts as a means to continue their abuse, highlighted in the report by the Ministry of Justice’s expert panel on harm in the family courts, published in June last year. The sad fact is that domestic abuse perpetrators do sometimes use the courts as a way of perpetrating their abuse, often bringing their victims back to the courts repeatedly, which, obviously, can be retraumatising. In our response to the report, the Government committed to exploring how we could further clarify the availability of Section 91(14) orders in the family courts to further protect victims of domestic abuse.
The amendment proposed by the noble Lord would place a duty on courts to consider making a Section 91(14) order, but only where relevant information has been shared by another court. We are determined that courts should never be used as a forum to perpetrate further abuse. In that context, I am clear that further clarification is indeed required to the law on barring orders to ensure that the use of Section 91(14) is available to parents and children to protect them where further proceedings would risk causing them harm or further abuse. The evidence suggests that these orders are currently underused in circumstances involving domestic abuse and that they could be an effective tool to further protect victims and survivors.
In answer to the question put to me by the noble Lord, Lord Rosser, and my noble friend Lady Newlove as to when we will come back with further thoughts on this matter, the short answer is: before Report. Therefore, I thank the noble Lord for drawing attention to this matter, which we are actively considering. We are considering what more can be done to ensure the effective use of Section 91(14) orders in domestic abuse cases. As I have said, we will consider this issue carefully ahead of the next stage of the Bill.
I turn now to Amendment 133, on training for judiciary and other professionals in the family court. The noble Lord, Lord Marks, said that this amendment was the most important of the group. I am tempted to agree, though that is not in any way to undermine the importance of any other amendment. To use a word that I think was used by the noble and learned Baroness, Lady Butler-Sloss, training is critical in this area.
Lord Wolfson of Tredegar (Con)
My Lords, first and foremost, I offer my sincere thanks to my noble friend Lady Newlove, the noble Baronesses, Lady Meacher and Lady Wilcox, and the right reverend Prelate the Bishop of London for the clear case they have submitted today before the Committee on why the offence of non-fatal strangulation is necessary. All the matters that we have discussed today are important, but this may well be the most important. In that context, I hope noble Lords will forgive me if I do not acknowledge each of the contributions individually, both because of time and because, if I may say, many of the contributions were to the same effect. I will seek to respond to the substantive points made without always a personal reference; I hope I will be forgiven for that.
I must, however, make a personal reference to my noble friend Lady Newlove. I join with others in paying sincere tribute to her for the way in which she has promoted this issue. She explained how non-fatal strangulation can be terrifying and the effects long lasting. As the noble Baroness, Lady Crawley, said, it is often used as a method of control and, to adopt the phraseology of the noble Baroness, Lady Wilcox of Newport, there is a real and visceral effect. I also mention in particular the personal and very moving speech by my noble friend Lady Bertin, with her mention of some circumstances very close to her.
As noble Lords will have noted, there are two amendments on non-fatal strangulation before the Committee. Amendment 137 would have general application: it would apply to all cases where non-fatal strangulation or suffocation has occurred, including cases where non-fatal strangulation or suffocation featured as a factor during a domestic abuse incident. By contrast, Amendment 138 creates the same offence, but the application is limited to cases of non-fatal strangulation or suffocation where this occurs in a domestic abuse context. The maximum penalty for the new offence in each proposed clause is the same—that is, on conviction or indictment, seven years’ imprisonment or a fine, or both.
I am aware that the proposal to create a stand-alone non-fatal strangulation offence stems from campaigns conducted last year by the Centre for Women’s Justice and We Can’t Consent to This. Specific clauses to create a new offence were tabled in another place, although they were different to those before us today. Those proposed clauses were, however, withdrawn on Report in the other place and were not put to a vote.
Before setting out the Government’s position on this matter, let me start by saying that we entirely sympathise with and fully understand the strength of feeling. We unequivocally support the intention behind these amendments and have given a firm commitment to legislate for a new offence of non-fatal strangulation. I hope that, as the right reverend Prelate the Bishop of London explained, this will indeed lead to a reduction in the appalling details that we may have to hear in the future. In answer to my noble friend Lady Redfern, that would be a stand-alone offence.
Several contributors have mentioned the position in other jurisdictions. It is right to say that Australia, Canada, New Zealand and several states in the USA have created a non-fatal strangulation offence. Those offences have been cited by the two groups that I mentioned as offering a basis on which any new offence in England and Wales could be modelled. Those stand-alone offences, however, differ across those jurisdictions. Some apply widely but are dependent on certain factors being met, such as the victim not giving consent, or the act causing them to lose consciousness. Other variations of the offences are narrower in scope, in that they are restricted to instances of strangulation that occur in a domestic abuse context. Those offences are not without criticism. Some people claim that they are too broad and can capture behaviour that is not intended to harm and should not be criminalised.
It is also worth pointing out that the offences in those jurisdictions have not been placed on the statute book without significant prior review to assess their impacts on other areas of law. In addition, most of those legislative measures tend to be accompanied by a package of non-legislative measures—for example, programmes for seeking to change perpetrator behaviour, toolkits for the police to assist in identifying non-fatal strangulation cases and guidance for agencies to support victims of non-fatal strangulation.
I also draw the attention of the Committee to the current law and how non-fatal strangulation is currently captured. Such behaviour can be captured, depending on the seriousness of the crime, under offences ranging from common assault and battery to attempted murder. However, in addition to those offences, there are others that can cover non-fatal strangulation and suffocation. For example, it can be part of a pattern of behaviour amounting to an offence of controlling or coercive behaviour under Section 76 of the Serious Crime Act 2015. Additionally, a specific offence under Section 21 of the Offences Against the Person Act 1861 makes it an offence to attempt to choke, suffocate or strangle any person, or to choke, suffocate or strangle a person in an attempt to render that person insensible, unconscious or incapable of resistance. That offence also requires there to be an intention by the perpetrator to commit another indictable offence.
It is that range of offences that initially led the Government to believe that the law was sufficient in covering the diverse circumstances and levels of seriousness that may be involved in non-fatal strangulation cases. As the noble Baroness, Lady Bennett of Manor Castle, set out, one would not want to create a stand-alone offence if it were not necessary to do so. However, we have now been persuaded that this may not be the case.
We are also aware of claims of evidential difficulties in prosecuting any allegation of strangulation, particularly if there is no—or insufficient—evidence of injury, not even reddening or minor bruising to the skin. Further, as the noble Lord, Lord Marks, pointed out in relation to the Section 21 offence, there is the additional requirement for evidence that another indictable offence had been intended, and that may create difficulties.
Our concern had been that the same difficulties would apply to any new offence, as there would still be a requirement for proof beyond reasonable doubt that a serious offence was intended. We have also been concerned about the risks associated with creating a new offence and that it could limit the circumstances covered and create additional evidential burdens when compared with existing offences.
More importantly, as was pointed out by a number of contributors, non-fatal strangulation is relevant to and found in, but plainly not limited to, domestic abuse circumstances. Although I understand and accept that it is more likely to occur in a domestic abuse setting, it is nevertheless the Government’s position to ensure that if we create a new criminal offence, it applies equally to all parts of society, does not create any loopholes, or conflict or impact on other parts of the legal framework.
I turn now to the detail of the amendments: as drafted, both are deficient and could not be accepted by the Government. Importantly, both amendments seek to create a new offence to criminalise conduct that is already unlawful. In addition, the proposed maximum penalty of seven years’ imprisonment for conviction or indictment is problematic—the level of the penalty needs careful consideration. Our main concern here is that seven years exceeds the maximum penalty for serious offences such as GBH, when the injury caused by non-fatal strangulation may be significantly less than the injuries that amount to GBH.
There are other significant problems. The amendments do not deal with the element of consent, do not consider any exemptions and do not provide explanation of how they would work with, and alongside, the current legal framework. The amendments are also limited to a person’s breathing, or blood circulation, or both, being impeded manually—by hand or through the use of an aid. We are, however, aware of offences of this nature where a person’s breath or blood circulation has been impeded in other ways, such as the use of other body parts—a knee placed hard upon a neck, for example—or, simply, using bodyweight.
As noble Lords will have seen in the media over the weekend of 9-10 January, the Government have now committed to creating a new offence of non-fatal strangulation, for which the noble Baroness, Lady Meacher, characteristically generously, was thanking Ministers. It will be important, however, to ensure that any new offence is proportionate—I hear the question from the noble Baroness, Lady Burt, and I will come back to it—allows for more prosecutions to be brought and for convictions to be secured. There is a number of legal and technical issues to be addressed for this to be achieved that are not addressed by the amendments as currently tabled.
The noble Lord, Lord Anderson of Ipswich, as has been said, rightly pointed to some of these issues on Second Reading, and we should not underestimate the challenges of getting this right. I am grateful to the noble Lord, Lord Marks, for passing on the later comments from the noble Lord, Lord Anderson. I can say, particularly given his reference to Professor David Ormerod, that officials have already taken up the offer of meeting the learned professor. They have had initial discussions with him and will continue to have such discussions, which I am sure will be extremely useful.
As I am sure noble Lords will agree, it is important for any new offence to work in practice and not pose difficulties for other parts of the law. In creating any new offence of non-fatal strangulation, the Government will have to consider several factors. Let me set out just four. First, the Government will have to consider whether the behaviour should be captured through a single offence or through two offences to capture lower-level and more serious cases of non-fatal strangulation. Secondly, we have to define the term “strangulation and suffocation,” and consider whether any terminology about serious harm requires definition. Thirdly, although I heard what the noble Lord, Lord Marks, said, we have to consider the issue of consent—when consent becomes invalid is a notoriously thorny legal issue. Fourthly, we have to consider the application of public policy exemptions, such as for some sports or medical treatments.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, we on these Benches fully support Amendments 139, 140 and 145, in the names of my noble friend Lady Kennedy of The Shaws and others. The issues addressed in these amendments have been raised in the other place by my honourable friend the Member for Birmingham, Yardley, Jess Phillips, and others during the Bill’s consideration there.
The amendments, as noble Lords have heard, are modelled on existing law and should not cause the Government any trouble whatsoever; I look forward to the Minister’s response. My noble friend Lady Kennedy explained the problems women face when they have killed a partner, having been the victim of abuse for years and years and then find themselves in the dock. The amendments seek to address that and reflect the realities of domestic abuse.
Everybody has been very complimentary about the Bill—it is a very good Bill, long overdue and we wish it success—but to become really effective legislation, it must incorporate these amendments or government amendments with the same intent. It is reasonable to afford the victims of domestic abuse who act in self-defence, often in their own homes, reasonable protection. They are compelled to defend themselves, having suffered years of abuse. As my noble friend Lady Kennedy reminded us—we have heard it many times before—on average, two women a week are killed by their partner or former partner. That is an horrific figure.
Amendment 139 would provide domestic abuse survivors with the same legal protection as householders have in cases of self-defence. Members have referred to such cases. Amendments 140 and 145 are modelled on Section 45 of the Modern Slavery Act 2015 and would give victims of abuse a statutory defence where they have been compelled to offend as a result of experiences of domestic abuse.
We have heard excellent speeches in this short debate from all noble Lords, particularly from the right reverend Prelate the Bishop of Gloucester. I endorse all the comments of noble Lords. My noble friend Lord Bradley, in particular, made a compelling speech. He raised the issue of mental health, its effect on women prisoners and the need for proper context to be taken into account when deciding to prosecute cases. I look forward to the response from the noble Lord, Lord Wolfson. If he cannot accept these amendments, I hope he will tell the Committee that he understands the issue and will go away and reflect on it, and maybe come back on Report.
Lord Wolfson of Tredegar (Con)
My Lords, I first offer my sincere thanks and appreciation to the noble Baroness, Lady Kennedy of The Shaws, for outlining the case for these amendments. In response to her early comments, I can assure her that I have indeed listened to her and benefited from discussing these matters with her, both outside the Chamber in advance of today’s proceedings and in listening to her most diligently this evening. She has considerable experience in this area of the law.
In effect, these amendments seek to create two new defences: first, a defence of reasonable use of force by victims of domestic abuse who, in self-defence, react to violence from an abusive partner; and, secondly, a new statutory defence for victims of domestic abuse who commit a criminal offence. While in tonight’s debate the noble Baroness, Lady Kennedy, focused on the first of those defences, I have had the benefit of discussing both issues with her. I have read briefings on both and therefore hope that my reply will meet the points she has made inside and outside the Chamber. None the less, I will take each amendment in turn, because they raise different issues.
Amendment 139 is on the reasonable use of force. The Government are aware that what is being sought here 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 the home. I am aware that the proposed new clause stems from a campaign by the Prison Reform Trust seeking to clarify the degree of force that is reasonable under the common law of self-defence where the defendant is a survivor of domestic abuse. It has been suggested by the Prison Reform Trust that the common-law defences are unsuitable in the context of domestic abuse.
In that context, as the noble Baronesses, Lady Kennedy and Lady Hamwee, explained, the amendment seeks to build on existing provisions in Section 76 of the Criminal Justice and Immigration Act 2008, with the intention that, as with householders, the degree of force used by the defendant would have to be “grossly disproportionate” rather than simply “disproportionate” by reference to the circumstances that the victim believed them to be, and to take into account other factors set out within Section 76. It has been suggested that this would fill a gap in the law.
Let me start by saying what I hope does not need to be said, given the terms of the Bill and what has been said in Committee on this and previous occasions. The Government recognise the harm suffered by victims of domestic abuse. Several defences are potentially available in law to those who commit offences in circumstances connected with their involvement in an abusive relationship, including the full defence of self-defence. In addition, the broad definition of domestic abuse in the Bill should assist, I hope, with identifying and clarifying the wide-ranging and pernicious nature of domestic abuse, and alerting all those involved in the criminal justice system to it.
It is worth mentioning at this point that the courts—by which I mean the judges—have developed the common-law defences and their relationship to domestic abuse. We should perhaps pay tribute to the judges for having recognised the nature and impact of coercive and controlling behaviour in the application of the criminal law and in sentencing, as well as in family and civil law. It is sometimes the case that the courts are quicker, more nuanced and more flexible in developing the common law than Parliament can ever be in introducing, by their very nature, more rigid and narrowly drawn statutory provisions. For fans of the common law, of which club I am an enthusiastic member, that is an important point to bear in mind.
There is also a need to balance recognition of the abuse suffered and its impact on the victim with the need to ensure that, wherever possible, people do not resort to criminal behaviour. The Government believe that the balance is currently reflected in the law, which continues to evolve and which aims to strike the right balance between those factors.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, I thank the House for the opportunity to ask this question, which applies to all these amendments but particularly to Amendment 139, to which my noble friend Lady Jones of Moulsecoomb is a signatory. She was unfortunately unable to take part in this debate.
My noble friend would have referred to the fact that the Covert Human Intelligence Sources (Criminal Conduct) Bill allows blanket legal protections for undercover police and informants. The forthcoming overseas operations Bill creates similar new protections against prosecution for military personnel acting overseas. The Government have fought intensely for these protections against prosecution for the police and the military; they have fought against many attempts in your Lordships’ House to reduce or check these protections. In that context, how would the Minister explain—having granted such broad protections to the police and military, even in cases of fundamental wrongdoing—why the Government should refuse what are comparatively far more limited legal defences for survivors of domestic abuse, particularly with such well thought-out and well drafted amendments by the noble Baroness, Lady Kennedy of The Shaws?
Lord Wolfson of Tredegar (Con)
I am grateful to the noble Baroness, Lady Bennett of Manor Castle, for that question. I do not wish to be thought flippant in any way, but the short answer is that the situations are different, and therefore you have different considerations and different legal results. However, if she will permit me, given that I am not personally acquainted with that sort of detail—certainly of the overseas operations Bill—to respond to her this evening, I will add to my reply in writing.
Lord Paddick (LD) [V]
My Lords, I am very grateful to the Minister. I have two questions which rather puzzle me. First, he talked at length about praising judges for how they can quickly and flexibly adapt the common law of self-defence to new cases and how beneficial it is for it to be dealt with in that way, rather than with rigid primary legislation. Can he therefore explain why Section 76 of the Criminal Justice and Immigration Act 2008 was thought necessary?
Secondly, the Minister talked about the option to retreat in domestic abuse cases. Referring to the two scenarios that I spoke about from personal experience, I certainly had the option to escape out of the flat—luckily it was a ground-floor flat—when somebody was trying to break the front door down in the burglar scenario, but when my abusive partner had me up against the kitchen wall, I had very limited options to retreat. I cannot see how the option to retreat is more valid in the burglar situation than it is in the domestic abuse situation. Perhaps the Minister can help me.
Lord Wolfson of Tredegar (Con)
I am grateful to the noble Lord, Lord Paddick, for those questions. First, Section 76 of the Criminal Justice and Immigration Act dealt with a specific circumstance, whereby Parliament considered that that instance ought to be reflected by way of a specific statutory defence. The question for this evening is whether there is a suitable read-across into the matters we are discussing. For the reasons I sought to explain, I suggest that there is not.
Secondly, as to the option to retreat, I hope I made it clear that I was not saying that there is always an option to retreat in domestic abuse cases; I was making the point that there is generally very little option to retreat in the householder case. Again, that is an instance where you cannot simply read across to the domestic abuse case. I hope the noble Lord is content with those responses, but I am very happy if he wants to take those points up with me hereafter so that we can discuss them.
Baroness Hamwee (LD) [V]
My Lords, I understand the points that the Minister has made about the common law developing—that is inherent in it—but, like my noble friend, I want to pursue the point about flexibility. If the courts were that flexible—I suppose this is a rhetorical question—would we be moving and speaking to these amendments?
The proposed new clause in Amendment 140 is modelled on—but, I accept, does not completely repeat—the provisions of Section 45 of the Modern Slavery Act, referring to “the person’s circumstances”. As far as I am aware, I have not received the briefing from the Prison Reform Trust, but does the Minister accept that the remarks of the right reverend Prelate and the noble Lord, Lord Bradley, go very much to the point about a person’s circumstances? The Minister referred to concern about misuse. At Second Reading, I think I made the point that if there is misuse we should be looking at the misuse, not at not applying a defence which should be a good defence in general.
Finally—again, I suppose this is rhetorical—with regard to the balance, and we are for ever searching for the right balance, does the Minister agree that, given the fast-developing understanding of domestic abuse and its impact, civil society will likely pretty quickly, in parallel, be developing its ideas about what is the right balance?
Lord Wolfson of Tredegar (Con)
I am grateful to the noble Baroness, Lady Hamwee, for those various questions. On the issue of the person’s circumstances, I hope I set that position out in my reply. Perhaps it is the sort of point I could set out to her in writing in a couple of paragraphs, if she would not mind.
We are concerned when defences may be being misused; I made it clear that there are some concerns with the victims of slavery defence in that context. On the last point, which I think the noble Baroness accepted was somewhat rhetorical, she is certainly right that we always seek a balance. The point she makes that the law must keep up with the expectations of civil society is a profound one; it is, indeed, one of the big advantages of the common law. I am sure, therefore, that the issues raised by these amendments will continue to be discussed. The question before the Committee this evening is whether the legislature should provide for explicit statutory defences in these terms. For the reasons I have sought to set out, in my opinion, it should not.
Baroness Kennedy of The Shaws (Lab) [V]
My Lords, I should tell the Committee that I turned a page too soon in my opening address on these amendments. I did not have the chance to really lay out the second of the statutory defences I am promoting, in Amendment 140.
I regret that I used the term “read-across,” because there are always lawyers who will use language literally. Of course, I did not mean it is an absolute read-across to talk about a householder as distinct from a victim of abuse, but the gravamen is the same. The core of it is about somebody put in fear in the place they want to feel safe: their home. I cannot think of any domestic homicide where I have represented a woman who has killed her partner or ex-partner that did not happen within a household—a place where she was hoping to feel safe but did not, and where experience had taught her to feel fear and terror.
I am afraid I have to say to the Minister that some time, I will take him by the hand into a women’s prison and have him sit down and listen to the accounts of women, by asking them to look him in the eye and tell him their stories. They are so often there because of childhood abuse, having been brought up in abusive households and with direct experience of partner abuse. We could almost empty our prisons without them having women who are there because of their mental health. They are not mentally ill for no reason; almost invariably, it is because of the kind of abuse we have heard about in the debates on this Bill.
I say this respectfully, but the Government are again falling into the trap of saying there are nice victims and bad victims, or of saying: “We will change the law for the good, conforming victims but not for the victims who somehow transgress”. These are the victims who, in the end, defend themselves because they are so in terror for their lives, who are so in fear of a partner that they commit a crime—carrying the drugs from A to B or hiding them in their sock drawer, for example. All I am saying is that there is a double standard in this debate: as soon as you move to that which involves crime and a woman, or anybody who is abused, is in the dock, then suddenly your compassion for the issue of domestic abuse somehow dissipates.
I am very concerned that there is not enough real consideration of the toll of abuse: we are moving into the field where somebody ends up transgressing the law but it is really because of what they are experiencing. If a psychiatrist were to speak to this Committee, they would tell noble Lords that when somebody has experienced fear for their life—we have heard about it in relation to strangulation—and thought “I am going to die at the hands of this person”, and then suddenly smells that level of fear again, in the air, in those circumstances they might take a knife and defend themselves, or take a heavy weapon and hit somebody fatally on the head. The test of “reasonableness” or whether the force was “disproportionate” has to be read in the context. That is why I am saying that it would have to be “grossly disproportionate” for it not to afford a defence of self-defence for somebody who has experienced long-term and serious abuse.
What we are seeing here are the very double standards that are so often experienced by victims of abuse and by women. It goes back to the nature of law and its patriarchal roots. It is about saying that, yes, women who are abused deserve all our compassion but if they overstep the mark, they do not.
Our prisons are full of women who have had these experiences—indeed, I have acted for women who have ended up killing a partner. They do not do it because they suddenly want to wreak vengeance; they do it in exactly the circumstances of the householder who feels in absolute terror for their life.
The failure to make those links and to understand this may be because one has not spent enough time sitting in a cell with people who are coming up for trial. I can tell the Committee that that is the circumstance, and if you can afford, because the Daily Mail demands it of you, to lower the standard of reasonableness and be more flexible for a householder—as indeed you should—then that kind of flexibility should be available to those who have been experiencing long-term abuse.
I ask that the noble Lord look again at the double standard that is operating here. It is partly, of course, because Governments always want to play the law-and-order card and do not want to be seen to be soft on people who commit crime. But very many of the women who end up in prison did what they did because they were under the coercion and control of somebody else, and were absolutely in fear of that person. I really regret the response I have received from my friend, the noble Lord. I ask him to take his great lawyer’s skills and go back to the drawing board again, because he is missing something very important here, which is about justice for women. I beg leave to withdraw the amendment, with great regret, and I am really disappointed in the ministerial response.
Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021
Lord Wolfson of Tredegar Excerpts(3 years, 9 months ago)
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Lord Wolfson of Tredegar
That the Regulations laid before the House on 8 January be approved.
Relevant document: 42nd Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, this draft instrument prevents enforcement agents—bailiffs—attending residential premises in England to execute a writ or warrant of possession except in the most serious circumstances. The instrument applies to enforcement action in England. It has been in force since 11 January and will expire at the end of 21 February. I refer to my interest as set out in the register.
The instrument renews the restrictions on enforcement agents carrying out evictions that were in place between 17 November 2020 and 11 January 2021. This will ensure that we continue to protect public health during this national lockdown, at a time when the risk of virus transmission is very high, and avoid placing an additional burden on the NHS and local authorities. The instrument continues to provide for exemptions from the ban in cases where we consider that the competing interests of preventing harm to third parties or taking action against egregious behaviour are sufficient to outweigh the public health risks.
The exemptions are as follows. The first is where the claim is against trespassers who are persons unknown. The second is where the order for possession was made wholly or partly on the grounds of: anti-social behaviour or nuisance; false statements; domestic abuse in social tenancies; substantial rent arrears, equivalent to six months’ rent; or where the order for possession was made wholly or partly on the grounds of the death of the tenant and the enforcement agent attending the property is satisfied that the property is unoccupied. The instrument contains a requirement for the court to be satisfied that an exemption applies on a case-by-case basis. This will ensure that there is a clear, uniform and transparent process for establishing whether an exemption to the ban applies.
As noble Lords will appreciate, this legislation is an extension of the previous ban on the enforcement of evictions in all but two respects. The first difference is that we have redefined the exemption for “substantial rent arrears” to mean arrears of more than six months. The definition in the previous instrument was arrears of more than nine months, not including any arrears that had accrued since March 2020. We have made this change to balance the impact of the ongoing restrictions on landlords with the need to continue to protect tenants. Because of action that the Government have taken as a result of the pandemic to protect renters, we expect that most cases that will fall within this exemption will relate to possession claims that began before the six-month stay on possession proceedings commenced in March 2020. In those cases, landlords may have been waiting for more than a year without rent being paid.
The second difference between this instrument and the one it replaces is that it permits writs and warrants of restitution to be enforced. These orders are issued in cases where a person who has been evicted from premises re-enters those premises illegally. It is therefore appropriate that they be excluded from the ban.
The regulations will be in place until the end of 21 February. We are considering whether and, if so, how to extend them, including how long any such further extension should be in place, and will provide more details as soon as possible.
It is important to ensure that our approach remains proportionate and strikes the right balance between continuing to protect tenants and ensuring that landlords can access justice. On 8 December last year, during the debate on the previous statutory instrument, concern was raised that the Government had not gone further to protect renters and support landlords, many of whom are individuals. The Government believe the best way to support landlords at this time is to provide support to tenants to enable them to continue to pay their rent, and have provided an unprecedented package of financial support which is available to tenants. This includes the fact that, in April 2020, we increased the local housing allowance rate to the 30th percentile of local market rents in each area to help prevent people getting into financial hardship. It also includes an increase of nearly £1 billion in additional support for private renters claiming universal credit or housing benefit in 2020-21, which will benefit over 1 million households, including those in work. Claimants will gain on average an additional £600 this year in increased housing support.
The Secretary of State for Work and Pensions recently announced that the increase to local housing allowance rates in April this year will be maintained in cash terms in 2021-22, even in the large number of cases where the 30th percentile of local rents has gone down. The continued investment in local housing allowance will support claimants in the private rented sector to manage housing costs. That is on top of the other provisions in place, which the House will know of, to help businesses pay salaries, with the furlough scheme extended to April and the welfare safety net boosted by billions of pounds. In this context, the Government have made £180 million available to local authorities and discretionary housing payments to help renters with their housing costs. All that is critical factual background when considering this statutory instrument.
We continue to require landlords to provide tenants with six months’ notice before eviction in all but the most serious cases until the end of March. That means that most renters served notice now can stay in their homes until June 2021, with time to find alternative accommodation. The six-month stay on possession proceedings put in place at the start of the pandemic could only ever be temporary.
The new court rules also respond to the pandemic and will be reviewed. These include a requirement for cases from before 3 August last year to be reactivated by the landlord and subject to a new review hearing at least four weeks before the substantive hearing. There is a need for landlords to provide courts and judges with information on how tenants have been affected by the pandemic—if that information is not provided, an adjournment will be made. There is a new review stage at least 28 days before the substantive hearing so that tenants can access legal advice, and all enforcement agents must provide a minimum of 14 days’ notice before enforcing an eviction. That is on top of new listing prioritisation arrangements which have been introduced by the judiciary.
Further, we are piloting from early this month a new mediation service to support landlords and tenants in seeking to resolve disputes before a formal hearing takes place. That will be free to use for both landlords and tenants, if it is considered at a review that the case would benefit from mediation and the parties so agree.
Our approach strikes the right balance between prioritising public health and supporting the most vulnerable renters, while at the same time ensuring that landlords can access and exercise their rights to justice. Landlords can action possession claims through the courts, but evictions will not be enforced except in the most serious cases. This SI strikes the right balance, and I therefore commend the regulations to the House.
Lord Wolfson of Tredegar (Con)
My Lords, in this short debate I feel I have been assailed from all sides. I have been attacked for not giving enough protection to renters and challenged for not giving sufficient thought to landlords. The noble Lord, Lord Kennedy of Southwark, said that I would satisfy no one—that may be the story of my life. I bear in mind the point made by my noble friend Lord Naseby that housing never was an easy job. It is certainly less easy when you are in the middle of a global pandemic and even more difficult when you are actually a Minister in the Ministry of Justice.
The experience of being castigated from all sides, however, has been ameliorated by the cogency, force and evident passion of many of the contributions to this debate. But the fact that I have been challenged from all sides is important. I am not making the simple, perhaps simplistic, point—attractive though it would be to do so—that the fact that both renters and landlords consider they have cause for complaint shows that we have got it about right. That would be superficially attractive, but it would not necessarily follow.
What does follow is the point that this is not a simple issue. It is not just a question of focusing on the position of renters or landlords, or even a question of focusing on renters and landlords. We also need to bear in mind the position of others, including neighbours, for example, who have a right to be protected from anti-social behaviour or nuisance. I agree with the noble Baroness, Lady Uddin, who said that this is not a matter of ideology. It is rather, as my noble friend Lady Gardner of Parkes said, a matter of balance. This statutory instrument, as I have explained, seeks to balance those interests against an ongoing pandemic and, as I said in my opening remarks, in the light of the various financial support mechanisms that the Government have provided both for renters specifically and for people more generally.
It is against that background that I turn to the regret amendment put down by the noble Lord, Lord Kennedy of Southwark. I sincerely thank him for his warm words and I am sure that we will work together, both in and out of the Chamber, on this and other matters.
However, there have been no broken promises. On the point made by the noble Lord, and repeated by the noble Baronesses, Lady Bennett of Manor Castle and Lady Uddin, because of measures taken in response to the pandemic, we calculated that it would be unlikely that a case would have yet reached the enforcement stage where a landlord had initiated possession proceedings as a result of rent arrears that had begun to accrue since the start of the pandemic.
First, the Coronavirus Act 2020 provides that landlords must give tenants longer notice periods before starting possession proceedings in the courts, apart from in the most egregious cases. Previously, two weeks’ notice was required, and between 26 March and 28 August last year, three months’ notice was required. Since then, landlords have been required to give six months’ notice where arrears are less than six months, and four weeks’ notice where the arrears are at least six months. We also take into account the amount of time it takes possession proceedings to progress through the courts, and the new arrangements that are in place to deal with the resumption of cases following the resumption of possession proceedings at the end of September.
Importantly, at each stage of the process the tenant is provided with time in which to seek advice or make alternative arrangements. If we were to consider a hypothetical case, where a tenant has rent arrears that only started to accrue since the pandemic began, that case will have been affected by the requirement for longer notice periods, the six-month stay on possession proceedings and then the need to follow due process in the courts. When we assess it, it is unlikely that such a case would yet have reached the enforcement stage.
There could, however, be cases where landlords have been waiting to recover possession orders where the rent arrears began to accrue before March 2020. In such cases, where there are very significant rent arrears, we consider that those landlords ought to be able to enforce those orders. But even in those extreme cases, where a court decides that an exemption to this instrument applies, and taking into account one of the points made by the noble Lord, Lord Mann, bailiffs will not carry out an eviction if they are made aware that anyone living in the property has Covid-19 symptoms, is self-isolating or has been identified as clinically extremely vulnerable.
I now turn to the regret amendment put down by the noble Baroness, Lady Grender, whose experience and knowledge in this area must be acknowledged by everyone in this debate; they are certainly acknowledged by me. Despite the fact that she is not pushing her amendment to a vote, I have to say that, with respect, the terms of the amendment do not meet the issue which faces the Government, and which the statutory instrument seeks to deal with.
The terms of the noble Baroness’s amendment state that it is regrettable that the statutory instrument does not
“link protection from evictions automatically to the extension of restrictions in place to address the COVID-19 pandemic”,
which is a point also made by the noble Baroness, Lady Uddin. It would be wrong to make such an “automatic” link—to use the word in the amendment—because policy in this area should not operate on an automatic basis. It would be wrong for a number of reasons. When assessing the issue of protection from evictions, it would mean that we would look only at the existence of restrictions resulting from the pandemic, which would be to look at only half the picture. It would mean that we would not consider that those restrictions have changed, and no doubt will change further over time. It would mean that we would overlook the help that has been made available and remains available to renters specifically and to people generally. It would also mean ignoring the protections that we have built into the system, and, as my noble friend Lady Altmann reminded us, taking no account of the interests of landlords, who also deserve consideration. Many landlords depend on the rent that they receive for their sole income; if no rent comes in, they can be placed in a precarious financial situation. Over and above all of that, linking protection from evictions automatically to the existence of Covid-19 restrictions assumes a correlation, and indeed a causation, where neither might exist. By contrast, the statutory instrument seeks to find and maintain a balanced approach, taking all matters into account.
I will write to noble Lords whose comments I have not been able to refer to specifically. In the time that I have left, I will pick up on a couple of the main points which were put to me during the debate, beginning with the limited-time nature of this statutory instrument and what my noble friend Lord Bourne of Aberystwyth called the “bi-monthly ritual” of this SI. I would always be grateful for any opportunities to come to your Lordships’ House for an interesting debate, but I accept in principle that we may wish to raise our eyes and look for a longer period. That is difficult in the midst of a continually changing pandemic, but we will do our best. We are looking at the future and, if we can, we certainly will.
As to the loans scheme, which was put to me by a number of noble Lords, the problem is that any loan scheme must have affordability criteria, which may make it tricky for those most in need to access. With a loan, you must be able to get it and then you must be able to pay it back. We believe, therefore, that the best way to support people in need is through the existing welfare system that provides ongoing support, and that is what the extensive pack of economic support is doing. In that context, the increasing of the local housing allowance rate to the 30th percentile is extremely important.
My noble friend Lord Bourne of Aberystwyth and other noble Lords asked about the change from nine months to six months. The rent arrears exception has been redefined to cases with rent arrears that are greater than six months because that is proportionate, given where we are in the pandemic, given the other protections in place and given the support that has been put in place for renters specifically and for people more generally. It is a question of balance, and that is where we consider the balance is best struck. We anticipate that most of the cases in which an exemption applies will involve a significant level of rent arrears that predate the pandemic and where landlords may have been waiting over a year without rent being paid.
I hope that I have replied to the main points that were put to me in this debate. I am conscious of the limited time that I have had to reply. The noble Lord, Lord Mann, asked a very specific question about the Traveller community. I hope that he will forgive me for not dealing with it now, but it would perhaps be more appropriate for a housing Minister to respond on that point.
We consider that the balance that this statutory instrument has struck is the appropriate one. It provides tenants with protection from eviction and provides landlords in appropriate cases with the ability to recover sums due. Therefore, I commend this instrument to the House.
Counter-Terrorism and Sentencing Bill
Lord Wolfson of Tredegar ExcerptsTuesday 26th January 2021
(3 years, 10 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Sentencing Bill 2019-21 View all Counter-Terrorism and Sentencing Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 129-I Marshalled list for Committee - (21 Jan 2021)
Member’s explanatory statement
This amendment removes references to offences in the Space Industry Act 2018 from Schedule 17A to the Sentencing Code (serious terrorism offences). References to those offences will instead be inserted on their commencement by Schedule 22 to the Sentencing Act 2020 (see the amendment at page 108, line 11) so that they are dealt with consistently by the Sentencing Act 2020.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I hope that the Committee will allow me to take a moment to thank the noble Lords, Lord Thomas of Gresford and Lord Marks of Henley-on-Thames, and the noble and learned Lord, Lord Falconer of Thoroton, for their very warm words of welcome, which I appreciate.
Amendment 1 is a minor technical amendment that removes references to offences in the Space Industry Act 2018 from Schedule 17A to the Sentencing Code, which deals with serious terrorism offences. References to those offences will instead be inserted, on their commencement, by Schedule 22 to the Sentencing Act 2020 so that they are dealt with consistently by that Act. I beg to move.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, I understand from the Minister that this is a minor amendment. I too welcome him to his position. He has been very helpful to me both on this Bill and on the Domestic Abuse Bill, with which we are dealing almost simultaneously. I have a couple of minor questions for him. First, what would happen if this amendment were not put in place? How would that have affected the position, and what could the consequences have been? Secondly, what level of consultation has he done externally to ensure consistency in Sentencing Codes and parliamentary Acts?
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful for the words of the noble Lord. To answer his two questions, I say that this is essentially a tidying-up matter because of the different pace of legislation going through Parliament at the moment. The question of what would happen if this amendment were not made is an interesting one. At the very least we would be left with inelegant legislation, and I know from my previous incarnation that inelegant legislation is bad for Parliament but very good for lawyers, so let us try to make it as elegant as we can while we are at it. Much of the consultation on this matter preceded my involvement in this Bill and indeed my introduction to this House, but I am aware that there has been very significant consultation. Of course, if the noble Lord wishes to raise any particular points with me, my door is always open to him.
Member’s explanatory statement
This amendment and the amendments at page 53, line 44, page 95, line 4 and page 95, line 37 are consequential on the removal of Clause 34.
Lord Wolfson of Tredegar (Con)
My Lords, I will also speak to Amendments 3, 17, 18, 21, 22, 23, 24, 25, 26, 73, 74 and 75. I will also signal my intention to propose the removal of Clauses 33, 34 and 35.
Clause 33 was intended to provide explicit provision so that Scottish Ministers might impose a polygraph condition as a licence condition for specified released terrorist offenders. Clause 34 was intended to provide explicit provision so that the Northern Ireland Department of Justice might impose a polygraph condition as a licence condition for specified released terrorist offenders. Scotland does not currently have express provision for polygraph testing, but Scottish Ministers have broad powers to set licence conditions under Section 12(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993. Northern Ireland does not currently have express provision for polygraph testing, but the Department of Justice has broad powers to set licence conditions under Article 24 of the Criminal Justice (Northern Ireland) Order 2008 and Rule 3(2)(e) of the Criminal Justice (Sentencing) (Licence Conditions) (Northern Ireland) Rules 2009.
Through discussions on the legislative consent of the Scottish Parliament and the Northern Ireland Assembly on the provisions of the Bill, it became apparent that while this clause would enable a fully comparable UK-wide approach to polygraph testing on licence, pursuit of this provision in Scotland and Northern Ireland was not strictly necessary and could result in Scottish and Northern Irish Ministers withholding their consent for the Bill. The Government remain of the view that polygraph examinations are a useful additional tool in supporting the effective management of terrorist offenders, and we hope that the Scottish Parliament and the Northern Ireland Assembly will see the demonstrable benefits of its introduction in England and Wales.
This Government will continue to legislate on reserved matters but, as an expression of our respect for the existing powers of the Scottish Government and the Northern Ireland Assembly in relation to the setting of licence conditions, and as a demonstration of this Government’s reasonable approach to those discussions, we have now agreed to remove the provision on the clear understanding that, should this Scottish Parliament or Northern Ireland Assembly or a future one change its view on polygraph testing, it will be able to implement the measure without additional legislation being required.
Clause 35 was intended primarily to provide supplementary provisions to Clauses 33 and 34 that would restrict the circumstances in which the devolved Administrations could impose mandatory polygraph examinations as a licence condition for certain terrorist offenders. As a result of the removal of Clauses 33 and 34 from the Bill, Clause 35 is no longer needed. The clause was intended to ensure that regulations could be made to ensure that polygraph conditions were confined only to those offenders’ licences where it was necessary and proportionate to do so, to ensure standards for the examinations and that appropriate records and reports kept in relation to testing were consistent across the UK. Polygraph examinations are already carried out on sexual offenders in England and Wales. The conduct of those polygraph examinations is governed by rules made under Section 29(6) of the Offender Management Act 2007. Amendments 2, 3, 17, 18, 21 to 26 and 75 are consequential on the removal of Clauses 33 to 35.
Amendment 73 is necessary to ensure that the measures that permit introduction of polygraph testing in a licence condition for terrorist offenders in England and Wales are commenced two months after the Bill receives Royal Assent. Previously, when explicit provision was sought and set out for Scotland and Northern Ireland as well as for England and Wales, we had agreed that the provision should be commenced via regulation to allow sufficient time to develop the relevant infrastructure in those jurisdictions. As explicit provision is no longer made for those jurisdictions through this Bill, and polygraph testing is already used by the probation service for sex offenders in England and Wales, the same delay is not now required. As such, the usual commencement of two months after Royal Assent is appropriate. I beg to move.
Lord Thomas of Gresford (LD) [V]
My Lords, I have many reservations about the value of polygraph tests. They rely on measuring several physiological processes—pulse rate, blood pressure, perspiration and so on, the changes that may take place in the course of questioning. However, the emotional and physiological responses recorded may arise from such factors as simple anxiety about being tested or fear of being judged deceptive, or a host of things—perhaps the state of one’s digestion after food. There is an inherent ambiguity in the physiological responses. The reluctance to use polygraph evidence is precisely because the response may mimic the response expected of a person seeking to deceive.
What is meant by “failing” the polygraph test? Failing the test means exhibiting a certain physiological response to a question. What is truth? The examiner cannot know whether that response means that the answer is a lie. However, there is no punishment for failing the test—whatever that means—or for exhibiting that response. That does not breach the terms of the offender’s licence. The individual will not be returned to prison. Alterations may, however, take place in the conditions of his licence, and those could be onerous.
The irony is that, in the course of questioning, the person being questioned may provide information truthfully that will have an adverse effect on him. He has not failed the test because his body does not react to his telling the truth, but he has provided information that may lead to his punishment. He has of course lost his right to silence, a right first developed in the late 17th century as a check to arbitrary rule. It has been regarded over centuries as fundamental to the fairness of the criminal law in this country and in the common-law countries all over the world.
Faced with the terrorist atrocities that we have seen in this country, the loss of the right to silence may seem a worthwhile price. Obviously that is not the immediate view in Scotland, nor in Northern Ireland. Let us face the dilemma: the proposals for England and Wales do not involve imprisonment for a lie but possible imprisonment for telling the truth or, since it is mandatory to answer the questions, even for remaining silent. Faced with legal and moral issues such as this, the drafters of the Domestic Abuse Bill, which is proceeding this week here also, as the Minister will know, decided that it was appropriate to proceed with a three-year pilot before finally rolling out the use of polygraphs generally in that field. Why is a different approach taken in this concurrent Bill?
It is interesting to note that the case studies in the MoJ memorandum on these proposals indicate that the information provided led to warrants being issued and physical evidence obtained in the offenders’ respective homes to contradict what they had said. However, there is no indication how often that has occurred or how many times such activity has proved nothing, and nothing has come of it. Will the Minister deal with that in his reply?
Lord Falconer of Thoroton (Lab) [V]
Like the noble Lord, Lord Thomas of Gresford, I too have considerable doubts about the reliability of polygraph material. This series of government amendments tabled by the noble Lord, Lord Wolfson of Tredegar, indicate some degree of shambles on the part of the Government. They are withdrawing the polygraph provisions for Scotland and Northern Ireland. Had they consulted the Scottish Government and the Northern Ireland Executive prior to the initial publication of the Bill, they would have seen what the Scottish Government and the Northern Ireland Executive had to say about them.
In the light of what was said by those two Governments, why did the UK Government introduce these provisions? It is plain from what the noble Lord, Lord Wolfson, is saying that the Scottish and Northern Irish Administrations do not want them. There is a reference to the various provisions that might allow them to introduce them as licence conditions. However, neither of the Administrations have indicated that they want these powers, so why on earth were they introduced in the first place and when was it that the UK Government decided to respect those views? If they did not consult those two Administrations before, why not?
Separate to that, on the use of polygraphs, what advice have the Government sought from police forces in England and Wales? To what extent would those police forces be confident about using polygraph testing?
Moving on, the effect of Amendment 73 would be that Clause 32, which sets out the conditions for polygraph testing for terrorist offenders in England and Wales, would come into force two months after Royal Assent rather than by regulations. Why have the Government reduced the degree of scrutiny available to the introduction of polygraphs by removing the need for regulations? Separately, what provisions are available in the Bill to stop the use of polygraphs if they prove to be ineffective?
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to noble Lords for setting out their various points. I turn first to those made by the noble Lord, Lord Thomas. On the effectiveness of polygraphs, as I said in my introductory remarks, they are used elsewhere in English law in relation to sex offenders. There is therefore a body of evidence as to their utility. On what “failing” means and the consequences of failure, it is important to remember, as I think the noble Lord appreciates, that offenders who are subject to testing cannot be recalled to custody for failing a polygraph test. They can be recalled for making disclosures during the test that reveal that they have breached other licence conditions, or that their risk has escalated to a level at which they can no longer be managed safely in the community.
On the right to silence and other Human Rights Act rights, I am sure that the noble Lord will recall that during the course of the sex offender pilot of the polygraph system, an offender challenged the imposition of testing on Article 8 grounds, but that was rejected by the courts. No further challenges have been made since then and we are therefore confident that this is compliant with the Human Rights Act and the rights contained therein.
On the remark that there is to be no pilot scheme, I will make two points. First, this is not the initial use of polygraphs in English law because they are already used in connection with sexual offences. Secondly, it is unlikely that there will be sufficient numbers of relevant offenders to carry out a pilot that would produce meaningful results.
I turn to the points made by the noble and learned Lord, Lord Falconer. It is rather odd to be accused of presiding over a shambles when we have actually listened to the Scottish Government and the Northern Ireland Assembly in our discussions with them. On whether police forces are able and ready to use polygraphs, they are of course already being used in circumstances related to sexual offenders. Therefore, this testing is not entirely new to them. The regulations that will govern polygraph testing have been set out and we do not think that it will be an ineffective tool.
I hope that I have responded to the various points raised. If noble Lords feel that I should provide further information on any of them, they know that we will of course continue to have discussions about these matters.
Member’s explanatory statement
See the explanatory statement for the amendment at page 53, line 41.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, the noble Lords, Lord Marks and Lord Thomas, have explained their thinking behind the amendment to replace “exceptional” with “significant” to give more discretion to the judge. As the noble Lord, Lord Thomas, said, in any event a judge will explain the reason for finding exceptional or significant reasons for reducing a sentence.
My questions are for the Minister. What does he believe are exceptional circumstances, and what exceptional circumstances would justify a lesser sentence? In what circumstances would such lesser sentences be appropriate?
Lord Wolfson of Tredegar (Con)
My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, explained, this amendment seeks to amend and change the circumstances in which a sentencing court could impose less than the 14-year minimum term for a discretionary life sentence imposed in a serious terrorism case by changing the circumstances from “exceptional” to “significant”. I respectfully agree with the noble Lord that the logic of his amendment would also apply to Clause 4. However, I respectfully disagree over whether such an amendment is appropriate.
The purpose of Clause 11 is to ensure a consistency of approach when sentencing those convicted of serious terrorism offences. It would not be appropriate for a court to be able to impose a life sentence with a lower minimum term for a serious terrorism offence other than where there are exceptional circumstances. If the circumstances of the offence and offending are such that the court imposes a life sentence, and unless there are exceptional circumstances, there should be no possibility of the offender being released earlier than someone given a serious terrorism sentence. That is what Clause 11 achieves.
By contrast, the amendment would remove that consistency, so that the court could consider a wider range of circumstances when setting the minimum term in a discretionary life sentence than when doing so for a serious terrorism sentence, although all other circumstances would be the same. While I accept that there is a distinction, in that the prisoner serving a life sentence may be considered for release only after the minimum term is served, it would be unprincipled for him or her to be released earlier than a counterpart serving a serious terrorism sentence.
A number of questions were asked about “exceptional circumstances”. That is a principle already established in sentencing legislation. It is used, for example, in connection with minimum terms that can apply to certain firearm offences. I must respectfully decline the invitation of the noble Lord, Lord Ponsonby, for a Minister to gloss from the Dispatch Box what “exceptional circumstances” might or might not be. It is a phrase used elsewhere in statute and known in law. Those are straightforward English words and it would not be appropriate or even helpful for me to gloss them on my feet at the Dispatch Box.
By contrast, I respectfully point out to the noble Lord, Lord Marks, that as far as my research has indicated—I am happy to be corrected if I am wrong—there is no existing “significant circumstances” principle in sentencing legislation. Therefore, if accepted, the amendment would create an entirely new test, which in our view is unwarranted and likely to lead to litigation, which cannot be in our interests as parliamentarians in passing this Bill.
As far as the point made by the noble Lord, Lord Thomas of Gresford, is concerned on judicial discretion, we are really talking about the extent of the judicial discretion and whether the test should be “exceptional” or “significant” circumstances. The question is not to the existence but to the extent of judicial discretion. As part of the Government’s recent White Paper, A Smarter Approach to Sentencing, we have committed to changing the criteria for other minimum terms for repeat offences to reduce the occasions on which the court may depart from the minimum custodial length.
For those reasons, I do not consider the amendment to be necessary or appropriate, and I respectfully invite the noble Lord to withdraw it.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, I am grateful to those who have spoken, and to the Minister for his response. However, I am bound to say that I found it disappointing. He is absolutely right to state that “exceptional” has a clear meaning in law and is used elsewhere. It was to that meaning that I alluded when I said that the use of “exceptional” puts the judge in a straitjacket. It is for that reason that my noble friend Lord Thomas of Gresford is right to seek a little more latitude, because the sentence is so long and the circumstances may be very varied.
The Minister did not deal with the point that the circumstances can relate not only to the offence but to the offender. They may cover a very wide range. Therefore, it is our position that more discretion is called for. He is right that it is the ambit of the discretion with which this amendment is concerned. I invite him to reconsider it. While he does, I beg leave to withdraw the amendment.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, I agree with the noble and learned Lord, Lord Falconer of Thoroton, about the benefits of pre-sentence reports. They are, and always have been, when available, important in the context of sentencing generally. They are a sophisticated tool, bringing before a court matters that may not be known to the sentencing judge in the absence of a detailed report on the background and motivation of an offender, and their potential to be rehabilitated in future. In not requiring such a report, which covers all the matters mentioned in this amendment, Parliament would be taking a retrograde step and excluding elements that may be important in determining the length of any sentence or extension period.
The amendment complements Amendment 6 that I introduced earlier, by giving the judge not only increased discretion in passing sentence, but also the material on which he can correctly and sensibly exercise that discretion. I agree with the noble and learned Lord, Lord Woolf, who described such a report as a very healthy safeguard. I urge the Government to accept the amendment for that reason. It is a question of giving the sentencing court the material upon which to make an informed and sensible decision from everybody’s point of view.
Finally, I commend the words in the amendment that provide for a review of the workings of the clause, including the amendment. I fear that we are legislating in some haste in relation to the Bill, and a review of how it is working, particularly this clause, would be extremely helpful.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to the noble and learned Lord, Lord Falconer of Thoroton, for introducing this amendment, although I hope to persuade him that it is in fact misconceived.
The amendment deals with Clause 16, which relates to an increase in the extension period for terrorism offenders aged under 18. As my noble and learned friend Lord Stewart of Dirleton said a few moments ago, I am sure it is common ground across the Committee that when dealing with such young adults one has to have the greatest care and consideration. Having said that, as my noble friend Lord Robathan reminded us, this is a matter of public safety. I respectfully endorse nearly all the comments that he made; I say “nearly all” because, in a debate where so many lawyers are speaking, I understand the temptation for someone who is not a lawyer to say that they are “only a layman”, but my noble friend is not “only” anything. With that slight quibble, I respectfully take on board everything that he said.
The amendment would require the pre-sentence report to take account of the offender’s age and consider whether options other than an extension period of eight to 10 years might be more suitable than an extended sentence of detention. The amendment would also require the Secretary of State to report to Parliament each year on the effectiveness of increasing the maximum extension period of the extended sentence of detention from eight to 10 years.
The nature of an extended sentence is that it comprises a custodial term and an extension period for the purposes of public protection, as defined in Section 256 of the Sentencing Code. The effect of the amendment would be fundamentally to alter the nature of the sentence by proposing an alternative to that extension period.
The amendment is also not necessary and, I say with respect, perhaps misunderstands the provision. I assure the noble and learned Lord, Lord Falconer, that the clause simply provides for a new maximum licence period of 10 years in serious terrorism cases rather than the current eight. This is not mandatory; it is available for use at the court’s discretion, and it will remain possible to apply a licence period of any length between 12 months and 10 years.
For a youth offender to receive an extended sentence for a serious terrorism offence, the court will be required to consider a pre-sentence report. I therefore agree to that extent with the noble Lord, Lord Marks of Henley-on-Thames, and the noble and learned Lord, Lord Woolf, about the utility of such reports. In preparing the pre-sentence report, the youth offending team officer will always consider the offender’s age and circumstances in order to recommend an appropriate sentence. The Bill does not change the way in which pre-sentence reports are done.
However, time spent on licence is crucial for both monitoring and managing offenders in the community as well as giving them the opportunity to change their behaviour. Therefore, providing the courts with the option of imposing a longer period of supervision on licence for the most serious terrorist offenders is an important element and component of the Government’s efforts to protect the public from the risks that terrorist offenders pose while enabling a longer period to support rehabilitation.
In that context, I assure the noble Baroness, Lady Jones of Moulsecoomb, that I am not in the business of throwing red meat to anyone or anything, be it dangerous dogs or the tabloids. This, however, is a proper and proportionate response to the very significant danger that some offenders present. I therefore invite the noble and learned Lord, Lord Falconer of Thoroton, to withdraw the amendment.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
I have received one request to speak after the Minister from the noble Lord, Lord Paddick, so I call him.
Lord Wolfson of Tredegar (Con)
My Lords, there is a strong connection between the Domestic Abuse Bill and this Bill to the extent that both lie on my desk and I have the honour and privilege of dealing with both in your Lordships’ House. However, they present very different issues. I do not want to talk too much now about the Domestic Abuse Bill, but the structure of that Bill, which encompasses both civil and criminal consequences, is very different—indeed, I might say vastly different—from the subject matter of this Bill, which is extremely serious terrorism offences. If the noble Lord has any particular comments on the interrelationship between the two Bills, I am dealing with them both, as I say, and I am very happy to speak to him further about that. However, that is my response on the particular point that he has raised. My respectful suggestion to your Lordships’ Committee is that the analogy, while tempting, is false.
Lord Falconer of Thoroton (Lab) [V]
My Lords, I am grateful to everyone who has participated in this short debate. I am very grateful to those who have supported my position, particularly the noble and learned Lord, Lord Woolf, the noble Baroness, Lady Jones, and the noble Lord, Lord Marks. Although he did not intend to, I think the noble Lord, Lord Robathan, also supported my position but was very keen to establish how clear-eyed he was. I do not think that people like myself—who are saying that, before a court sentences someone who is under 18, it should have the benefit of a pre-sentence report that asks the question, “Having regard to the person’s age, are there better ways to provide public protection?”—are necessarily that starry-eyed.
I was very hopeful that the Minister would persuade me that I was wrong, but I am not sure that he fully grasped the nature of the amendment. Section 255(1) of the Sentencing Code says that an extended sentence of detention for someone under 18 is available, while Section 255(2) says that the pre-sentence report requirements apply as they normally would in relation to sentencing someone under 18. My proposal is not to change the basis of the sentence; it is to say that, in that pre-sentence report, the pre-sentence reporter should have regard to the question of whether there are alternatives that could provide better public safety. If there are, the pre-sentence reporter should refer to them and the judge should take them into account.
I also agree strongly with the noble and learned Lord, Lord Woolf, that in an area like this it is useful for the Secretary of State to consider how well or badly a particular sentence is going so that they consider what should happen to it in future.
I very much hope that the Minister will consider what I have said about what the actual import of my amendment is, because he appeared to be dealing with an amendment that had a different import. I very much hope that he will reconsider his position. In the meantime, I beg leave to withdraw the amendment.
Lord Wolfson of Tredegar (Con)
My Lords, as the noble and learned Lord, Lord Falconer of Thoroton, explained, Amendments 11, 13 and 14 are intended to retain the current release provisions for under-21s sentenced to an extended determinate sentence for a serious terrorism offence. As has been mentioned, the Fishmonger’s Hall and Streatham attacks revealed the devastating consequences of releasing terrorist prisoners too early. In the Bill, we are changing the release arrangements for all offenders convicted of serious terrorism offences to ensure that the most dangerous and serious terrorist offenders serve their full custodial term, essentially for two reasons—first, to reflect the severity of their crimes but, secondly and perhaps more importantly, the intention to preserve lives.
The amendment seeks to draw a distinction in release policy between those aged over 21 and those younger. However, the Bill will introduce changes to release for both adult and youth offenders sentenced for serious terrorism offences. The extended determinate sentence already operates in the same way for adults and youths in every other aspect, and because the nature of the offending and the threat posed is so severe, these changes should align with that pre-existing approach.
For those aged under 18, instances of terrorist acts occur, although, thankfully, they are rare. I shall come back to that point later. Among those under-18s are some who are capable of extremely serious offending and present a real threat to the public. They are the dangerous few youth offenders that these provisions aim to capture. This measure, therefore, is about offenders who have been deemed dangerous by the court. That also means that, when sentencing the offender to an extended determinate sentence, the judge would have already taken into account age and other relevant factors.
In that context, I turn to the points raised by the noble and learned Lord, Lord Falconer. As to the possibility of change, one has to remember that this measure is about public protection and applies only to the most serious young offenders who have committed terrorist offences that carry a maximum sentence of life and have been deemed dangerous by the court.
We are alert to the point on prisoner management and have carefully considered it. There are a number of programmes within prison to make sure that the sentences proposed here do not adversely affect prison management within the institution. Although, as the noble and learned Lord, Lord Falconer, correctly said, the prisoner is likely to end his sentence as an adult, the fact is that even when sentenced at the time, the nature of the offences mandate the sort of sentence we now propose.
As to the point made by the noble Lord, Lord Thomas of Gresford, on radicalisation in the prison system, there are, as my noble and learned friend Lord Stewart pointed out, a number of interventions in the prison system designed to prevent radicalisation. They are extensive. I will not go over the points that he made earlier but I repeat and endorse them. As I said—I said that I would come back to this point—the number of young offenders in this regard who have been radicalised in prison is extremely small. We are alive to the noble Lord’s point, but do not believe that that is a reason not to proceed in the way in which the Bill is currently drafted.
Finally, and only because I wish to reassure the noble and learned Lord, Lord Falconer of Thoroton, that I read all his amendments with extreme care, these seem to be technically defective, given that the wording is to be added after the close of quotation marks and, on the face of it, would appear to apply only to new Section (2A)(iv), and affect only the provisions related to service personnel. However, I hope that I have approached his amendments on their merits. For those substantive reasons that I have set out, I respectfully invite the noble and learned Lord to withdraw or not move his amendments.
Lord Falconer of Thoroton (Lab) [V]
I am grateful to the noble Lord, Lord Wolfson of Tredegar, for the careful way in which he dealt with my amendments. I fully accept and am guilty of the technical error he identified. He was kind to deal with the merits of the three amendments. I very much hope that the Government will reflect on what I and the noble Lord, Lord Thomas of Gresford, said because it is a considerable mistake to treat the under-21s the same as those who are 21 or over, particularly with regard to public safety. We will return to this matter at a later stage. With the leave of the Committee, I will withdraw my amendment.
Lord Falconer of Thoroton (Lab) [V]
This is a significant debate. There are two circumstances that one has to consider. First, when one is dealing with a terrorist prisoner who is over 21, should the Parole Board, in the circumstances set out in Clause 27, have the power to direct early release? As I understand it, the effect of the Bill is that in certain specified circumstances early release is not possible for over-21s. Although it is hard, we are dealing with very dangerous situations. I am not sure that we would object to that, but I would like it to be clear: are we dealing in this amendment with the possibility of early release? If we are, then apart from those who are under 21 at the date of conviction, we would not wish to change the provisions of the Bill.
The second situation is where what the Parole Board is being asked to do is to either determine or advise on what the release conditions should be for somebody who is going to be released in any event. In those circumstances it would seem sensible for the expert risk assessors to determine not whether they should be released but what the conditions should be. I would be interested in the Minister’s views on both situations I have posited: one where we are dealing with early release, the other where we are dealing with conditions only.
Lord Wolfson of Tredegar (Con)
My Lords, in this amendment the noble Baroness, Lady Prashar, whose experience in this area is profound, proposes replacing Clause 27 with an amended set of provisions. Certainly as I read them, their effect—and to deal immediately with the point raised by the noble and learned Lord, Lord Falconer of Thoroton—is to provide that all prisoners subject to an extended determinate sentence or a serious terrorism sentence would be eligible for relief by the Parole Board at the two-thirds point of their custodial term. In concept, therefore, this is similar to the intention tabled by the noble Lord, Lord Marks of Henley-on-Thames, which he referred to— we will come to it shortly—as he opposes Clause 27 standing part of the Bill. With this amendment, the noble Baroness goes further: to replace Clause 27 with a new provision. If I may say respectfully, the noble Baroness is correct to identify that without Clause 27 there must be some replacement provision included to provide the legislative authority to release those sentenced to the new serious terrorism sentence.
Lord Ponsonby of Shulbrede (Lab) (V)
My Lords, we have had interesting debates on both this and the previous group. In closing the previous group, the Minister said that the proposed lack of involvement of the probation service in this particular group of prisoners was a consequence of the sentencing structure and was not a reflection on the Parole Board itself. I understand the point he has made, but what has been said repeatedly on both groups is that there is expertise in the Parole Board. My noble and learned friend Lord Falconer asked whether there were two elements here. One is the possibility of early release, while the second is a point raised again just now by the noble Lord, Lord Thomas, about the conditions of release for a prisoner who has served their whole term. I do not understand why that level of expertise should not be accessed when considering these types of prisoners.
I shall make a couple of other brief points which are different from those which have been made by other noble Lords. They arise from briefings that I have had from the trade unions. The Prison Officers’ Association believes that removing hope from prisoners puts its staff at risk. It is a point that the association makes repeatedly and is an important one to feed into this debate. The second point has been made by the National Association of Probation Officers—that is that the workload of probation staff working on the ground in prisons is so high that they are not managing to deliver to their required standards. They are being allocated around 70 prisoners each. I understand that the Minister has talked about these various programmes, and I know that we are talking about a very extreme group of prisoners. Nevertheless there is the practical working position of prison officers, probation staff and others in prisons to consider in trying to make these institutions work and to reduce recidivism when prisoners are released.
Even so, both the group of amendments we are speaking to now and the previous group illustrate the potential for changing the Bill to bring the Parole Board back in. That would reduce the potential risk to the public.
Lord Wolfson of Tredegar (Con)
My Lords, the Committee will appreciate that there is a significant overlap between this and the previous group. I hope that the noble Lord, Lord Marks of Henley-on-Thames, and indeed no other participant in this debate, will regard it as discourteous if on some occasions I take as read, as it were, points that I made in the previous debate. If the Committee finds it helpful, I propose to say a few words about each of the clauses and schedules to which objection has been taken and then come back to address some of the particular points raised by participants in the debate.
Serious Criminal Cases Backlog
Lord Wolfson of Tredegar Excerpts(3 years, 10 months ago)
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Lord Falconer of Thoroton (Lab) [V]
My Lords, by 2010 the system did 150,000 jury trials a year with about 47,000 waiting, about 30%. The median period between crime and court disposal was 240 days. By the time the pandemic started in March last year, jury trials were down to 100,000 a year with a median delay of 305 days, so fewer trials and longer waits. Now there are 54,000 cases awaiting a jury trial and rising. No one can blame the courts for Covid. The judges, court staff, defence and prosecutors have done bravely and well but the Ministry of Justice has overpromised and underdelivered. It said that there would be 200 Nightingale courts in which jury trials could be done; there are 20. Some 600 people in the last seven weeks have got Covid, from judges to court staff. There is no systematic testing. We have not made the necessary changes to preserve jury trials. What is the target for getting the backlog down and how is it going to be achieved?
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, the noble and learned Lord fails to put this information in context. In the Crown Court, prior to the Covid pandemic hitting in March last year, the outstanding caseload was 39,000, which was well within the range of 33,000 to 55,000 over the last decade. Immediately before the pandemic hit, we had increased the number of sitting days in response to an incoming demand on the courts. He will be aware that we have taken various steps to ensure that delays are minimised. However, I agree with him on one point: that we should pay tribute to the judges, magistrates, jurors, witnesses, victims, lawyers, court staff, CPS staff and, if I may say so, MoJ officials who have made a monumental effort to deliver justice in very challenging times.
Lord Marks of Henley-on-Thames (LD) [V]
With respect to the answer just given by the noble Lord, the Secretary of State’s response last week was complacent and lacked urgency. The four chief inspectors of probation, police, prisons and the CPS came together to produce a joint crisis report, expressing their grave concern about the “unprecedented and very serious” backlog of Crown Court trials—54,000-odd cases with trials scheduled into 2022—and the disastrous effects of these delays on victims, witnesses, youth offending teams, defendants and prosecutors. As long ago as July last year Caroline Goodwin, then chair of the Criminal Bar Association, pleaded with the Government to
“get serious and open up 50 more buildings and focus on criminal trials.”
Now many more are needed, along with much more funding to stave off collapse. Yes, efforts have been made and in difficult circumstances, but why the self-congratulation? Where is the urgency? What are the Government now going to do?
Lord Wolfson of Tredegar (Con)
My Lords, I assure the noble Lord that there is no complacency whatever. In fact, in September we published a crime recovery plan to which members from all groups involved in the criminal courts contributed. That plan was put together after significant consultation and collaboration. It is now being implemented. We now have more rooms for jury trials. We have plexiglass to enable social distancing and are using Nightingale courts including, I am pleased to say, St George’s Hall in Liverpool, where I first saw justice in action. We are exceeding the goals in the plan. The target was 250 courts safe for jury trials by October; we have exceeded that number and are improving the position yet further.
Lord Garnier (Con) [V]
I warmly welcome my noble friend from the next-door chambers to mine in the Middle Temple, both to this House and to his place in government. Will he accept that the £250 million in court recovery money mentioned in the Answer to the Urgent Question is not new money but reannounced expenditure? Does he also agree that it might be more useful if we were told how many courtrooms were not being used at all, compared to the limited number of Nightingale courts in operation that cannot anyway deal with dangerous defendants on remand in custody —for example those on charges of homicide or rape?
Lord Wolfson of Tredegar (Con)
My Lords, the MoJ has invested record amounts. There was an investment of £142 million to improve courts, tribunals, buildings and technology. That was, in fact, the single biggest investment in court estate maintenance for more than 20 years. Of course we will build on that, but it would be fair to say that everybody is doing their best in extremely challenging circumstances.
Lord Woolf (CB) [V]
My Lords, any backlog in the criminal justice system is worrying because it results in delays, and delays breed delays and result in injustice. They must not be allowed to fester because of the damage they can do to the justice system as a whole. This backlog is especially worrying because of its scale, its subject matter and because it is no doubt substantially due to Covid. What is required is a concerted effort to tackle the backlog and stop it festering and growing further out of control. There needs to be a plan to which all the criminal justice agencies sign up, including the Government, the judiciary and prosecution and defence lawyers, properly resourced to tackle the backlog as a matter of urgency. The Minister seems to suggest that there is such a plan. If so, when does he expect to see an improvement in the current situation and how is the plan being implemented?
Lord Wolfson of Tredegar (Con)
My Lords, there is such a plan. I refer the noble and learned Lord to the answer I gave a few moments ago about the crime recovery plan that we set out in September last year. He is certainly correct: there is an old adage that justice delayed is justice denied. We are working very hard to make sure that there are no greater delays than those necessarily caused by the circumstances in which we are living.
The Lord Bishop of Gloucester
I draw attention to my interest on the register as the Anglican bishop for Her Majesty’s prisons. The backlog of cases has a serious impact on offenders, victims and witnesses. On top of this, projections from the Ministry of Justice show that the prison population is expected to jump to almost 100,000 in 2026, which adversely affects prison staff as well as prisoners. Does the Minister agree that resources could be better spent on police-led diversion work and community-based provision, which could start now?
Lord Wolfson of Tredegar (Con)
My Lords, when looking at the criminal justice system, I agree that it is mistake just to think about courts, sentencing and prisons. One has to look at it in a broader and wider context. To that extent, the points that the right reverend Prelate makes are well made.
Baroness Mallalieu (Lab) [V]
My Lords, there is clearly no quick fix for a backlog of this magnitude, but will the Government consider extending to other witnesses the existing provisions under Section 28 of the Youth Justice and Criminal Evidence Act? These currently enable vulnerable witnesses to record their evidence and be cross-examined away from the courtroom at an early stage before trial. That recording can be replayed later at trial, with the result that evidence is not forgotten and footfall at court is usually reduced when the case finally gets to trial.
Lord Wolfson of Tredegar (Con)
My Lords, the noble Baroness raises an important point. This Government have taken a number of steps to ensure that vulnerable witnesses can give evidence in that way. Indeed, noble Lords will be aware of provisions that build on that in the Domestic Abuse Bill, which is going through Parliament at the moment. To take that point further would, I think, require more careful consideration, but I would be very happy to discuss that with the noble Baroness in due course.
Lord Hayward (Con)
My Lords, will my noble friend and the Government please understand the toll that unacceptable delays in the criminal justice system takes on even provenly innocent individuals? I know from personal experience that delays in both the trials and sentencing of those who make false accusations can drive people to consider suicide. Sadly, I know of other cases where individuals did take their lives.
Lord Wolfson of Tredegar (Con)
My Lords, the noble Lord is of course correct that delays in the criminal justice system can affect not only the defendant but others involved, including victims and witnesses. The listing of cases is ultimately a matter for the judiciary, not the Executive, so I am limited in what I can say. However, I can confirm, for example, that at the moment the majority of cases where a defendant is in custody have been listed for trial before July 2021.
Lord Pannick (CB) [V]
My Lords, are the Government considering two possible steps that would help to reduce the unacceptable backlog of cases in the Crown Courts? The first is to reduce the number of jurors to, say, seven, making it easier to ensure social distancing in court rooms, and the second is to allow defendants who are legally represented to choose trial by judge alone in some categories of cases where juries are currently required?
Lord Wolfson of Tredegar (Con)
My Lords, trial by jury is a cornerstone of the criminal justice system in this jurisdiction. With the support of Public Health England and Public Health Wales, we have made adjustments to more than 290 court rooms and jury deliberation rooms so as to facilitate trial by jury. Reducing the size of the jury is therefore unlikely to free up an additional amount of space for jury trials, and it would also require primary legislation. As to the other point that the noble Lord makes about trial by judge alone, that would, I think, require a significant change in our criminal justice system, and therefore very careful consideration would be required before embarking on that change.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
My Lords, unfortunately, the time allowed for this Question has elapsed. I will pause a moment or two for those who wish to escape the Chamber and those who wish to come in.