Public Health (Coronavirus) (Protection from Eviction) (England) (No. 2) Regulations 2021

Debate between Lord Wolfson of Tredegar and Baroness Garden of Frognal

Thursday 18th March 2021 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, the instrument before us prevents enforcement agents—bailiffs—attending residential premises in England to execute a writ or warrant of possession, except in the most serious circumstances. The House will be familiar with the structure and content of the instrument. Although I will deal with the content of the instrument in due course, I want to begin with its duration, because that matter was raised by several noble Lords in the debate we had on 2 February about this SI’s predecessor.

This instrument applies to enforcement action in England and will be in force until 31 March this year. It extends restrictions on the enforcement of evictions that have been in place since mid-November. The current SI expires on 22 February. On 2 February, when we debated the previous statutory instrument, a number of noble Lords raised concerns that the ban was not in place for long enough and that both landlords and tenants would benefit from greater clarity about how long the restrictions would be in force. We have had to balance that need for clarity against an ongoing and changing pandemic, but we have listened to the views expressed by noble Lords. On 10 March, the Government announced that we intend to extend these protections until 31 May, and we will lay legislation to do so shortly. So although the formal position is that this SI takes us up to 31 March, the legislation we will bring forward, as we have already announced, will give people clarity and assurance until 31 May.

That 31 May date is broadly in line with the roadmap out of lockdown. Noble Lords will need no reminding from me that step 3 of the roadmap will be taken no earlier than 17 May, following a review of the data as it appears at the time. Step 3 sees a number of restrictions lifted, including the ban on domestic overnight stays, which is relevant in this context. Noble Lords might ask why the proposed date is 31 May and not linked to step 4, which is scheduled for no earlier than 21 June. The short answer is that we have to remember, when looking at 31 May, that in most cases, bailiffs are now required to give 14 days’ notice of an eviction. In practice, protection from enforcement of evictions will be afforded, in most cases, until mid-June. We believe that that strikes the right balance in the circumstances.

The substantive provisions of the instrument are the same as in the one we debated on 2 February, apart from the duration, which I have already addressed. As I set out on 2 February, the Government have put in place unprecedented financial support to protect renters directly through measures such as these regulations and increasing the local housing allowance rate to the 30th percentile of local market rates in each area. We have made £180 million available to local authorities in discretionary housing payments. Of course, there is also the furlough scheme, support for the self-employed and bounceback loans.

While I will not go through the detail of that again, let me highlight two provisions in the Budget that are relevant in this context. First, as noble Lords will be aware, the furlough scheme was extended until the end of September. Secondly, the support for the self-employed was extended in scope—600,000 people who were not previously entitled are now entitled—and duration, to the end of September. We continue to provide limited exemptions from the ban on enforcement. They are, as previously set out, broadly as follows: where the claim is against trespassers who are persons unknown; where the order for possession was made wholly or partly on the grounds of antisocial behaviour, nuisance, false statements, domestic abuse in social tenancies or substantial rent arrears equivalent to six months’ rent; and where the order for possession was made wholly or partly on the grounds of the death of the tenant, and the enforcement agent is satisfied that the property is unoccupied. Those exemptions are applied by the court on a case-by-case basis.

The critical point is that given that broad sweep of financial support, we consider it unlikely that a full six months of arrears would have accumulated solely because of the effects of Covid-19. Rather, where that exemption applies, it will likely involve significant levels of rent arrears that predate the pandemic, where landlords may now have been waiting for over a year without rent being paid.

In addition, where the court applies an exemption, bailiffs have to give tenants at least 14 days’ notice of an eviction in most circumstances and have been asked not to enforce evictions where a tenant has symptoms of Covid-19 or is self-isolating. In addition, we have introduced a requirement in the Coronavirus Act that landlords in all but the most serious circumstances must provide tenants with six months’ notice before beginning formal possession proceedings in court.

Previously, in Section 21 cases, two months’ notice was needed, and other grounds required as little as two weeks’ notice. The requirement for longer notice was to apply until 31 March, but the Housing Minister laid an SI last week to extend that period also to 31 May. Extending the notice period obviously gives additional protection to tenants. Taking this in the round, that requirement to provide six months’ notice in the majority of cases means that most renters now served notice by a landlord can stay in their homes until September 2021. Our statistics show that the number of possession cases has fallen significantly. In the last quarter of 2020, they were down 67% compared to the same quarter the previous year.

In the limited time I have, I want to take a moment to express my gratitude to the Civil Procedure Rule Committee for addressing the challenges the coronavirus pandemic has caused the justice system and for the considerable work done at some pace by both that committee and the working party under the chairmanship of Sir Robin Knowles. Since I mentioned the judiciary, I extend my respectful welcome to the noble and learned Lord, Lord Etherton, a former chancellor of the High Court and, more recently, Master of the Rolls. Like all noble Lords, I look forward to his maiden speech later in this debate.

So far as the courts are concerned, temporary arrangements remain in place to ensure appropriate support. We have introduced new review stages and a requirement that cases have to be reactivated, and we are piloting a new, free mediation service until August this year. We are conscious that we also have to think about landlords. We consider that the best way to protect landlords is to provide the financial help we have been providing to help renters pay their rent. We are grateful to landlords for their forbearance during this unprecedented time, and we encourage all renters not only to pay their rent but to have an early conversation with their landlord if they are in difficulties.

This instrument provides tenants with protection from eviction up to 31 March. We have announced that we will bring forward legislation to extend that to 31 May. We are trying to strike an appropriate balance during an unprecedented public health crisis to avoid placing additional burdens on the NHS and local authorities. For those reasons, I commend these regulations to the House.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, I should have added that there is time in this debate for the maiden speaker to have a whole extra minute and the welcomer a whole extra 90 seconds if they wish to be so indulgent.

Domestic Abuse Bill

Debate between Lord Wolfson of Tredegar and Baroness Garden of Frognal

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 8th February 2021 Lords Chamber

[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.