Police, Crime, Sentencing and Courts Bill

Debate between Lord Wolfson of Tredegar and Lord Rosser

Consideration of Commons amendments & Lords Hansard - Part 1
Tuesday 22nd March 2022 Lords Chamber

[Lord Rosser (Lab)]

There are, as has been said, two issues here, the duty of candour and secure academies. I note what the Minister said on the duty of candour and must say that our views are rather more in line with those just expressed by the noble Lord, Lord Paddick. One might think it rather odd, particularly at the present time when trust in the police appears to be at such a low level, that the Government and the Commons decided to disagree with such an amendment, but it is their prerogative to do so.

As the Minister said, this issue is not going to be dropped. There are people within Parliament, including ourselves, and people outside Parliament, to whom reference has been made, who intend to pursue the issue of a duty of candour. I think I am right in saying that the Minister referred to the fact that the Government would further consider the position—indeed, that is given as a reason for disagreeing—and that they would come up with conclusions later this year. While indicating that we intend to pursue the issue, we will, with some reluctance, leave this in that context. It is certainly not going to be pushed to one side now. It will be pursued and we will wait to see what conclusions the Government come up with later this year. The issue of trust in the police is a serious matter and I know the Government agree. We need to make sure that the mechanism is in place to improve the levels of trust that currently seem to exist.

On secure academies, the Government and the Commons have disagreed the amendment from the noble Lord, Lord German, which would put explicitly in the Bill that local authorities can establish and maintain secure academies. The aim of the amendment was to put beyond doubt that applications from local authorities to run secure academies would be welcomed and would be considered on their merit, on a level playing field with other providers.

The Government’s response has been that there is no legal barrier to local authorities setting up an entity that could enter into an academy arrangement with the Secretary of State, so there is not a legal barrier to them establishing a secure academy. The Government said that the Ministry of Justice

“will assess in detail the potential role of local authorities in running this new form of provision, before we invite applications to run any future secure schools.”—[Official Report, Commons, 28/2/22; col. 803.]

The Minister also made that point.

Our response in the Commons was that this does not go far enough. We argued that local authorities have the expertise needed to run services and provide care for vulnerable children with a high level of need in a secure environment and that the Government should widen the pool of expertise that providers bring and ensure that local authorities are explicitly brought into the fold when planning for secure academies.

We recognise that the Government have committed to look at the involvement of local authorities in providing secure academies before any new applications are invited, so we will now deal with and pursue this issue outside of the Bill. However, we strongly support the noble Lord, Lord German, in saying that what is needed, and what we will keep calling on Ministers to deliver, is, frankly, not vague statements that a local authority could provide a secure academy but a proactive change to bring the expertise that local authorities have into that pool of providers.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Lords who took part in this debate. I will take matters fairly briefly, given the amount of other business before the House.

On the duty of candour, I emphasise the essential point that the disciplinary system provides clear sanctions that can lead to dismissal. We should not introduce criminal sanctions for the police alone. Ultimately, the inspectorate can determine whether forces are following the guidance. We will monitor that extremely carefully.

I do not want to take up the House’s time too much on the report, which has been published in the last half an hour. My right honourable friend the Home Secretary has already issued a statement, which noble Lords will be able to find online, but my understanding is that the Metropolitan Police has 56 days to respond formally to the report. The Home Secretary will of course return to Parliament to provide a full government response once the final report and responses have been received.

I am grateful to all noble Lords for their engagement on the issue of secure schools. I have tried to set out the legal position clearly. I hope that the undertaking that I have set out will be sufficient. Again, with apologies to the House for not dealing in too much detail with the new report, because I am sure there will be other opportunities to debate it, I beg to move.

Nationality and Borders Bill

Debate between Lord Wolfson of Tredegar and Lord Rosser

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Lord Rosser (Lab)]

As has been said, this part of the Bill provides for “interpretation” of the refugee convention. It includes some entirely new provisions and replicates or amends some existing provisions.

On existing provisions, this part of the Bill repeals the Refugee or Person in Need of International Protection (Qualification) Regulations 2006. These regulations transposed a key EU directive on standards for asylum systems, the qualification directive, into UK law. The Bill repeals the regulations and puts versions of the provisions into primary legislation instead.

The UNHCR noted with concern the Government’s approach to interpreting the refugee convention. I will read an extract from its legal observations on the Bill in full. It said:

“We note with concern the Government’s approach to interpreting the Refugee Convention. Any treaty must be ‘interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’ In the case of the Refugee Convention, as the UK Supreme Court has noted on more than one occasion, ‘There is no doubt that the Convention should be given a generous and purposive interpretation, bearing in mind its humanitarian objects and the broad aims reflected in its preamble.’ In addition, the Vienna Convention specified a range of sources that ‘shall be taken into account’ in interpreting a treaty; these all reflect the agreement of the parties, and include other agreements and instruments from the time the treaty was concluded, as well subsequent agreements, State practice and international law. In other words, States cannot, under international law, unilaterally announce their own interpretation of the terms of the agreements they have made with other States. This, too, has been repeatedly recognised by the House of Lords and the Supreme Court of the UK.”


I do not want to repeat what has already been said, but I just ask: do the Government agree with that extract from the UNHCR’s legal observations on the Bill? If they do agree with it, do they believe that they are still abiding by it?

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

My Lords, I am grateful to all noble Lords who have taken part in this debate.

The starting point is that we are no longer members of the European Union and, by extension, the Common European Asylum System. In response to the point made by the noble Baroness, Lady Hamwee, these provisions are not a direct response to the case of AH (Algeria). They are about having an opportunity to define clearly and unscramble refugee convention terms following our exit from the EU. It is right that, at this time of legal change, we take the opportunity to reassess the operation of our asylum system and reconsider our approach not only to fundamental policies but to processes, so that we can create a clearer and more accessible system.

The fact is that the development of the asylum system through international conventions, European law, domestic legislation, Immigration Rules and case law has created a complex legal web that can be difficult to understand and apply; that goes for claimants, decision-makers and the courts. I do not propose to use props—I understand that that is not permitted—but, for my own assistance on a later group, I brought a book called, rather laughingly, The Immigration Law Handbook. We consider it a desirable law reform to define clearly key elements of the refugee convention in UK domestic law. In response to my noble friend Lord Hodgson of Astley Abbotts, that is exactly what we are doing. We want to make the position clearer for everyone, including decision-makers and the courts.

A lot has been said that touches on the same point but, with great respect, the noble Baroness, Lady Chakrabarti, perhaps put it most forcefully. She used a number of metaphors. Let me respond to them. This is not about tripping anybody up. It is not a sleight of hand; it is difficult to do one of those on the Floor of your Lordships’ House. This is about bringing clear definitions before Parliament and having them all in one place. The central point is this: there is nothing wrong—indeed, I suggest that there is everything right—with the UK, through this Parliament, interpreting its obligations under the refugee convention. That is entirely lawful. I use “lawful” in both its narrow and wide senses. It is lawful in the sense that it is in accordance with the law; it is also lawful in the broader sense of being in accordance with the political or constitutional principle that we call the rule of law. Further, it is in accordance with the Vienna convention. Everything we are doing complies fully with all our international obligations, including the refugee convention and the European Convention on Human Rights. I will come back to the question that the noble Baroness asked me in that regard a little later.

With respect to the noble Baroness, Lady Hamwee, it is not perverse to use domestic legislation to give effect to and interpret international treaties. I assure the noble Baroness, Lady Jones of Moulsecoomb, that I am not in the business of appeasing the far right; nor am I in the business of deleting obligations under international law. Many of the definitions, which repay careful reading, are very similar to those already used in the UK—for example, those contained in the 2004 qualification directive, which was transposed into UK law via the 2006 regulations.

I am grateful to the noble Lord, Lord Alton, for his kind words. I assure him that I of course give proper consideration to international reputational impacts, but surely there can be no adverse impact by complying with international law and interpreting treaties in accordance with the Vienna convention.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

Respectfully, what I said earlier is that it is not the arbiter of the interpretation of the convention. I do not think that is inconsistent with the point the noble and learned Lord just made.

I was proposing to sit down, after suggesting to the Committee that we should keep these various clauses in the Bill.

[Lord Rosser (Lab)]

Before the noble Lord sits down, I was wondering whether he would explain some of the changes that are being made or cover them in a subsequent letter. As I understand it, Clause 33 replaces Regulation 4 in the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, which is repealed by Clause 29. The wording is largely the same but, as I understand it—and I may be wrong—the existing regulations reference

“protection from persecution or serious harm”,

whereas Clause 33 references only “protection from persecution”. Why has that change to the language been made and what will its practical effects be?

There are changes of language in other areas, such as from a “may” to a “must” in Clause 34. What problem is that intended to solve? Is it not the Government’s intention to explain the reasons for the changes they have made where they have made them?

[Lord Wolfson of Tredegar (Con)]

The “may” and “must” point, to which the noble Lord referred, will come up in a later group because, from memory, there is a specific amendment on it. I was proposing to deal with that when I respond to that amendment. I think we are going to come to the persecution and serious harm point later but, if I am wrong, I will write to the noble Lord and explain it. However, we are coming to “may” and “must” on a later group.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I set out why we think this interpretation is correct. I am certainly not saying that we are using this interpretation because it is the EU one; I was referring to the EU to make the point that, with respect, it is very difficult to challenge this as somehow an unfair, unworkable or inapt interpretation when it is actually reflected in the EU jurisprudence. I absolutely take, with respect, the noble Baroness’s comments about the importance of the equality impact assessment for the policies being taken forward through the Bill. The public sector equality duty is not a one-off duty; it is ongoing, and I want to provide reassurance now that we will be monitoring equality impacts as we put the Bill into operation and as we evaluate its measures and, indeed, those in the wider new plan for immigration.

I assure the right reverend Prelate the Bishop of Gloucester that we are well aware of the particular issues facing women and survivors of gender-based persecution and, indeed, the asylum system is sensitive to them. The interview guidance contains clear instructions to interviewers in this area. We seek to offer a safe and supportive environment for individuals to establish their claims. Despite references to the decision of this House in its judicial capacity, in Fornah, those comments were obiter. I underline that there is no authoritative definition in case law of what is a “particular social group”, and that is why it is absolutely right for this Parliament to define it in this clause.

Clause 37 amends the definition of a “particularly serious crime” from one which is punished by imprisonment of two years or more to one which is punished by imprisonment of 12 months or more. To be clear, imprisonment means an immediate custodial sentence—I am not sure that any noble Lord made that point, but it is important. Indeed, it is why I brought the handbook: if you receive a suspended sentence, you are not caught by its provisions—going back to the underlying legislation. Furthermore, not only does it have to be an immediate custodial sentence of 12 months or more but the second limb has to apply—namely, whether the individual is a danger to the community—and that is rebuttable.

We cannot accept Amendment 111 because it would potentially allow dangerous foreign national offenders to remain here, putting the public at risk. If somebody has been sentenced to a year or more in prison, we should not enable them to second guess the verdict of the jury or the decision of the court by allowing them to bring into play again whether they were such an offender. We seek to allow only the second bit of it to be rebuttable; namely, whether they pose the relevant danger.

I think I have answered all the questions that have been asked. On the last point put by the noble Lord, Lord Rosser, at the heart of this lies not some dinner party conversation but a lack of clarity in the current case law and standards, which make it harder for decision-makers to make accurate and efficient decisions; that is it.

[Lord Rosser (Lab)]

That may be the case, but all I asked of the Minister was to tell the Committee who has been making representations for these changes.

[Lord Wolfson of Tredegar (Con)]

I have not been here as long as the noble Lord, Lord Rosser, but, with respect, I do not think it fair to ask me that question as I stand here. The Government receive representations on this issue all the time. One might say that we receive representations from millions and millions of people who voted for this Government at the last election when immigration reform was full square in our manifesto. I say with great respect to noble Lord, Lord Rosser, that we are having a very interesting debate on some important legal points. If he wants to make political points, I am happy to respond in a political context.

[Lord Rosser (Lab)]

Since when has it been making a political point to ask where the pressure has come from to make these changes? Since when has that been a political point?

[Lord Wolfson of Tredegar (Con)]

The pressure has come from the people of the United Kingdom, who elected this Government with an overwhelming majority.

Nationality and Borders Bill

Debate between Lord Wolfson of Tredegar and Lord Rosser

Lords Hansard - Part 2 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Lord Rosser (Lab)]

In this group, I have the Clause 26 stand part amendment, and Clause 26 requires the Tribunal Procedure Committee to create a fast-track route for certain appeals made from detention. The accelerated process would apply where the Secretary of State “considers” that an appeal brought in relation to the decision would

“likely be disposed of expeditiously.”

Of course, that raises the question of the basis on which the Secretary of State will decide that an appeal brought in relation to the decision is likely to be disposed of expeditiously. Will it be done on a whim? Will it be done on the basis that we need to speed things up and this may be the way to do it? Will they be getting legal advice on whether they should consider that it is likely to be disposed of expeditiously? What happens if they do decide that an appeal brought in relation to the decision is likely to be disposed of expeditiously, and they then find that it cannot be disposed of expeditiously? What is the redress in that situation?

The Explanatory Notes state:

“This clause aims to establish an accelerated route for those appeals made in detention which are considered suitable for a quick decision, to allow appellants to be released or removed more quickly.”


As far as the Explanatory Notes are concerned, it is being done for the highest of motives, and nothing to do with simply trying to speed up the process.

The Law Society, Justice, the UNHCR and the Public Law Project have recommended that the clause be removed from the Bill. They raise that the fast-track system largely replicates, as has been said, a system that was already found to be unlawful in 2015 in a Court of Appeal ruling.

We support the amendments and concerns raised in this group, but I intend to speak only to the amendment in my name, which is to oppose Clause 26 standing part of the Bill. The concerns are very clear. As I said, various organisations have recommended that the clause be removed from the Bill. Their basis for saying so is that it amounts to a new detained fast-track procedure that was found to be unlawful in 2015 due to being “structurally unfair”. The Court of Appeal described the timetable for such appeals as

“so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity to present their cases”.

It held that the policy did not sufficiently appreciate

“the problems faced by legal representatives of obtaining instructions from individuals who are in detention”,

nor did it

“adequately take account of the complexity and difficulty of many asylum appeals”

and

“the gravity of the issues that are raised by them”.

Since that ruling, the Tribunal Procedure Committee has repeatedly taken the position not to introduce specific rules in relation to cases where an appellant is detained. In its report of March 2019, the TPC concluded that

“a set of specific rules would not lead to the results sought by the Government. If a set of rules were devised so as to operate fairly, they would not lead to the increased speed and certainty desired.”

Following the clear and somewhat damning court ruling and the position of the TPC, the Government’s response has been, as we now see, to legislate to reintroduce a fast-track procedure by forcing the TPC’s hand and requiring it to create one.

The questions for the Government are fairly simple. What is it about this scheme that is significantly structurally different from the scheme that was found to be legally unsound? What about this scheme will prevent it having a timetable

“so tight that it is inevitable that a significant number of appellants will be denied a fair opportunity”?

Why, and on the basis of what evidence, do the Government disagree with the TPC when it says that such rules should not be brought in since they cannot both operate fairly and achieve the desired result of speed?

One wonders whether the Government are risking further judicial proceedings in replicating a scheme that has been found to be unlawful or, indeed, whether they would care too much anyway if there were such future judicial proceedings. I await the Government’s response.

[Lord Wolfson of Tredegar (Con)]

My Lords, I will come to the amendments in a moment but, since we have had a number of references to the old detained fast-track scheme, I will start by saying a word about that.

Obviously we considered carefully the legal challenges to the detained fast-track. We are confident that the new accelerated detained appeals route will ensure fairness as well as improving speed. It is right to say that the courts have been clear, in upholding the principle, that an accelerated process for appeals made in detention, operated within certain safeguards, is entirely legal. We believe that the new accelerated detained appeals route will contribute significantly to the timeliness with which appeals can be decided. We will be able to remove swiftly people found not to be eligible to remain while those people with valid claims can be released from detention more quickly, which is also important.

So far as the Tribunal Procedure Committee is concerned, the Bill sets out a clear policy intent but, as the noble Lord, Lord Rosser, says, changes to tribunal procedure rules are for the TPC to draft and are subject to its statutory consultation requirements and procedures. We have already begun to engage with the TPC on the elements of the Bill that will require tribunal rules to be made or amended and will continue to do so as the Bill progresses and passes into law.

I turn to the amendments before the Committee. I thank the noble Baroness, Lady Ludford, and, in his absence, the noble Lord, Lord Dubs, for Amendment 97. I understand the motivation behind it. It is right that appeals made from detention should be dealt with in a timely way so that, as I have said, people are not deprived of their liberty for longer than necessary, but we recognise that not all appeals made from detention will be suitable for the accelerated detained appeals route. So Clause 26 specifies that if a decision is certified as suitable for an accelerated detained appeal, in those circumstances the Secretary of State must consider that any appeal to the decision is likely to be disposed of expeditiously. Importantly, the tribunal may remove a case from the accelerated detained appeals route if that is the only way to ensure that justice can be done in a particular case.

--- Later in debate ---

[Lord Rosser (Lab)]

I may not have been listening as attentively as I should have been, but if the Minister has already said it I ask him to repeat the criteria under which the Secretary of State will make the decision that he or she considers that the appeal is likely to be disposed of quickly, which was a question I asked. Another point rises from something he said—that the clause now sets an extremely high bar for an appeal to be released from the scheme, and provides that it can be done only where

“it is the only way to secure that justice is done.”

Am I not right in saying that this has been amended by the Government during the Bill’s passage, and that the original language permitted the release of a case if the tribunal

“is satisfied that it is in the interests of justice to do so”?

Why is it no longer the case that “the interests of justice” are a good enough reason to take action?

[Lord Wolfson of Tredegar (Con)]

I shall reply to the second point first, if I may. The language in Clause 26(5) is essentially the same language as in Clause 23(7).

[Lord Rosser (Lab)]

Is it the same or essentially the same? My understanding, and I may be wrong, is that the Bill now says that

“it is the only way to secure that justice is done”,

where previously it said

“that it is in the interests of justice to do so”.

They may be similar but they are not the same words.

[Lord Wolfson of Tredegar]

My Lords, I think we are at cross-purposes. I was not saying that the language had not changed; I was saying that the test in Clause 26(5) is the same test as in Clause 23(7). On the question of whether the language has changed, I think the noble Lord is right. I will write to confirm the position—I do not want to get it wrong at the Dispatch Box—but I think there was a change in this clause. The test as set out is entirely proper. Is the only way that justice can be done to take the case out of this tribunal? If that is the only way justice can be done, it ought to be done. If this tribunal therefore, by obvious logic, can deal with the case justly, it should do so.

On the first question, I am not sure how much more I can say. The Secretary of State must consider, in order to certify a case as suitable for an accelerated detained appeal, that any appeal to that decision would be likely to be disposed of expeditiously and that the other conditions are met. In coming to that conclusion, the Secretary of State would obviously have to look at all relevant factors. I am not sure that I can take it much further than that, but let me look again at the noble Lord’s question in Hansard. If I can add anything more, I will do so, so he is in possession of everything I can say before we look at it again—no doubt on Report.

Criminal Justice System: Equal Treatment of Deaths and Injuries

Debate between Lord Wolfson of Tredegar and Lord Rosser

Thursday 24th June 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I am aware of that case, and I send my condolences to the family of Ryan Saltern. Failure to stop offences are often referred to as hit and runs, but that is not really an accurate reflection of the offence. The offence is designed to deal with the behaviour relating to the failure to stop; it is not an alternative route to punish an offender for a more serious but not proven offence. As I said, where there is evidence that the driver caused harm, there are other offences they can be charged with, and the failure to stop will then be an aggravating feature in the sentencing for that offence.

[Lord Rosser (Lab) [V]]

One way of addressing the incidence and consequences of unacceptable driving is to change the culture among road users. Last year’s consultation on the interim review of the Highway Code focused specifically on improving safety for vulnerable users—particularly cyclists, pedestrians and horse riders—and asked respondents for their views on introducing a hierarchy of road users. If introduced, this would ensure that those road users who can do the greatest harm have the greatest responsibility to reduce the danger or threat they may pose to others. Do the Government support a hierarchy and the prioritisation of road users in this way? When will the Government publish their response to the consultation, which closed eight months ago?

[Lord Wolfson of Tredegar (Con)]

My Lords, some of the points the noble Lord has raised are really for my colleagues in the Department for Transport, and I will pass those on. But he is absolutely right that culture is an important part of this debate; we can all think of examples around the world where there is a different culture in the way that road space is used. Of course, one has to remember that everybody who uses the road is subject to the Highway Code. That includes both the drivers of juggernauts and, if I may say so, cyclists, who sometimes appear to think that they are subject to the pavement code.

Independent Office for Police Conduct

Debate between Lord Wolfson of Tredegar and Lord Rosser

Tuesday 16th March 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, in her letter to the Home Secretary dated 15 February 2021, the commissioner set out that the MPS will follow the College of Policing media approved professional practice, which I set out to the House a few moments ago. Whether a breach of that is a disciplinary matter must be a matter for the police and for the IOPC.

[Lord Rosser (Lab) [V]]

This Question is about victims of false allegations and the role of the IOPC in investigating what happened and why. We also need to do better for all those victims who bring forward legitimate allegations yet are failed. Some 99% of rapes reported to the police in England and Wales result in no legal proceedings whatever. What more can the police and the IOPC do to play their part in helping to ensure that the rate of prosecutions for rape increases?

[Lord Wolfson of Tredegar (Con)]

The noble Lord raises a critical point. Both my department and the CPS are focused on ensuring that we improve the number of rape allegations which come to court, where there is sufficient evidence to do so, and that the conviction rate improves as well. That is a huge amount of work and outside the ambit of a particular answer, but he will know that the Government are particularly focused on that area.

Domestic Abuse Bill

Debate between Lord Wolfson of Tredegar and Lord Rosser

Report stage
Wednesday 10th March 2021 Lords Chamber

[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.

Domestic Abuse Bill

Debate between Lord Wolfson of Tredegar and Lord Rosser

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

[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.

Domestic Abuse Bill

Debate between Lord Wolfson of Tredegar and Lord Rosser

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

[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.