Domestic Abuse Bill (Eleventh sitting)

Alex Chalk Excerpts

Committee stage & Committee Debate: 11th sitting: House of Commons
Wednesday 17th June 2020 Public Bill Committees

[Peter Kyle (Hove) (Lab)]

I beg to move, That the clause be read a Second time.

It is great to serve under your chairmanship again, Mr Bone—welcome back to the Committee. I rise to speak to new clause 25, on the repeal of provisions about defence for controlling or coercive behaviour offence.

Domestic abuse against disabled people is simply not discussed enough. They are hidden victims. When abuse against disabled people is raised, it is usually in the context of adult safeguarding processes, which labels disabled people as vulnerable adults and which disabled survivors and specialists in the field tell us is failing them.

The new clause reflects 10 years’ worth of casework by Stay Safe East, one of only two organisations in England and Wales led by disabled women supporting disabled survivors, and its partner organisations, in an advisory group on domestic abuse and disability. That is two specialist disability and deaf services for a disabled population of 10 million people.

The data on abuse against disabled people is grim. Disabled adults are at least 1.5 times more likely to be a victim or survivor of violence than non-disabled adults. Disabled women are at least three times more likely to experience domestic abuse from family members, be that their partner, parents, siblings, adult children or other family members. Some of the abusers will also be the person’s carer. It is highly likely that those figures are an underestimate, as the only example—the crime survey—is not in an accessible format for deaf and disabled people to participate in, and many survivors cannot access external help.

The rate of domestic abuse against disabled men is also higher than against non-disabled men, but disabled women are more likely to experience repeated, sustained and more violent abuse than disabled men. Disabled children, and particularly disabled girl children, are more likely to experience sexual violence and physical abuse than non-disabled children. What is more, disabled people may have other people in their lives who have a level of control, whether that is unpaid carers or paid carers from an agency, or a personal assistant.

This is the case for disabled women across all communities, of all ages and all backgrounds. Disabled women face specific forms of abuse at the hands of partners, family members and paid or unpaid carers: control of communication; control of medication; restricting access to disability support; using a person’s impairment to control them—for example, playing on their mental health or taking advantage of the fact that they have learning disabilities—forced marriage on the grounds that the partner “will look after you when I am gone”; and constantly abusing women because of their impairment. That, in itself, is a form of hate crime.

Abusers hold the very real threat that, “They will take your kids away from you” over a disabled woman. In the experience of both Stay Safe East and SignHealth, a deaf-led service for deaf survivors of domestic abuse, deaf or disabled mothers are at much higher risk of losing their children through the courts or other domestic abuse. In some cases, the courts opt to place children in the care of an abusive father rather than letting them live with a disabled mother, who is considered a poor parent for reasons simply of her disability, and providing support to keep the children with her.

Unfortunately, disabled victims who are able to speak out against this face multiple barriers to gaining safety and justice. Poor access to refuges or emergency accommodation; voice phone-only contact with many services, which excludes deaf women and those without speech; services not set up to deal with victims who need long-term support; a lack of quality, accessible information or British Sign Language interpreters; no access to counselling—the list is very, very long.

Worst of all is not being believed by police, social workers or health workers because they are disabled women, which is something that is frequently reported by deaf and disabled women who approach the two specialist organisations. A little-known clause, now subsections 76(8) and (9) of the Serious Crime Act 2015, introduced what has been dubbed “the carers’ defence” by disabled survivor groups. It introduced a worrying caveat into what was a piece of legislation to protect victims of abuse, by allowing an abuser who is facing charges of coercive control to claim that they were acting in the best interests of the victim.

That provision was originally brought to the attention of legislators through the efforts of Sisters of Frida, a disabled women’s collective, and Stay Safe East, but it became part of the 2015 Act. Although the clause may have been introduced with the best of intentions, to avoid unnecessary prosecution of carers who were, for example, preventing somebody with dementia from going out alone because they were at risk, there is a real risk that it could be used by abusers to claim that they are acting in the best interests of somebody they are controlling with malicious intent.

That is especially true of people who might be seen to have capacity issues, such as deaf people, people without speech, people with cognitive issues as a result of a stroke, people with learning difficulties and people with mental health challenges. That, of course, is a substantial number of potential victims among those who face the greatest barriers to safety and getting justice.

For example, the parents of a young woman with mild learning disabilities stopped her going out alone, only letting her go to college with a chaperone, on the grounds that she was at risk from strange men. The parents had failed to teach their daughter about safe relationships, had removed her from personal, social, health and economic education lessons in school, and had controlled her friendships with her peer group. The family claimed that they were protecting her. The young woman initially believed that her parents were doing their best for her, but as she grew up she came to realise that she could make her own decisions. It subsequently emerged that, on top of all the coercive control, the family were taking the young woman’s benefits, and there was also physical abuse.

The section gives a clear message to disabled survivors and victims generally: “Your decisions are not your own, and abusers can claim to be acting in your best interests.” “For her own good” is an expression we often hear abusers using, even if they are abusing that very interest, and the courts will let them get away with exercising abuse of power over their victims.

In a context where disabled survivors are the least likely to speak out, and where, if a case does go to court, the chance of a successful outcome for the victim is very low, especially for disabled victims, that is not the message that we want legislation on domestic abuse to give to survivors or, for that matter, the police, the Crown Prosecution Service or abusers. The Care Act 2014 and the Mental Capacity Act 2005 both provide sufficient protection for genuine carers who face malicious allegations. A law to protect victims is not the place for a clause that protects potential abusers.

All too often, concerns about disabled victims are ignored. The Government now have a real opportunity to listen, and we urge the Minister to take full advantage of that opportunity. We are talking about a group with many intersectional and very complex challenges, which provide additional areas for abusers to exert control and abuse.

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

This is the first of two debates on different aspects of the controlling or coercive behaviour offence in section 76 of the Serious Crime Act 2015. As the hon. Member for Hove has indicated, new clause 25 seeks to repeal the defence in section 76(8), which has been labelled by some as the “carers’ defence”.

Currently, the coercive or controlling behaviour offence allows for such a limited defence if the accused believes that they were acting in the best interests of the victim. It is important to note that the accused would also need to demonstrate to the court that in all the circumstances of the case their behaviour, while apparently controlling, was reasonable. This defence is intended to cover cases, for instance, in which the accused was the carer for a disabled spouse, and for medical reasons had to compel their partner to take medication or to stay at home for their own protection.

It is worth taking a moment to consider the sorts of circumstances in which that defence might apply. Imagine a situation in which neighbours walk past a home and see someone who wants to get out of the front garden and on to the road, and is in some distress at not being able to do so. That neighbour calls the police, and the police then investigate. It emerges that the person trying to get on to the road is, very sadly, suffering from dementia, and their partner is a person of unimpeachable integrity and good character—a decent, loving partner of many years’ standing who has shown nothing but care and compassion for that individual, but who is concerned that if they get out on to the road, they will be a danger to themselves and others. Is it seriously to be suggested that that person should be at risk of conviction, punishment and disgrace?

[Jess Phillips (Birmingham, Yardley) (Lab)]

That is not what has been outlined. It has already been clearly stated that provisions in the Mental Capacity Act 2005 would allow for that exact defence. Also, can the Minister not imagine a situation in which if a victim in that exact circumstance says she is a victim of domestic abuse, that might be the case?

[Alex Chalk]

Of course it might be the case, but the important thing is that this defence allows a proper opportunity for a tribunal of fact to consider that, and I think it is absolutely right that it should do so. It is worth noting that under section 76 the burden is on the individual to advance that defence, and for a tribunal of fact to then consider whether it has been disproved. In other words, if that individual advances something that is utterly implausible, a jury—or indeed a bench of magistrates—would have little difficulty in exposing it as such.

[Peter Kyle]

It is important to note that we are leaping straight from a hypothetical, in which a woman with dementia is trying to climb over a fence, to court. However, between those two stages we have the first responders. Having experienced the training, care, compassion and expertise of the frontline responders in the prevention team of Sussex police, I would find it extraordinary if a frontline responder could not tell the difference between these scenarios, or certainly determine whether there is enough evidence to pursue the kind of prosecution that the Minister is describing.

[Alex Chalk]

We have to be very clear about this. If an individual does not have that defence, considering the elements of section 76, we would be left with a person who is apparently being caused some distress—as would be evident to the first responder, or indeed to a police officer, who might have to effect an arrest—and the distress would appear to have been caused by that person’s liberty having been restricted. In those circumstances, unless the individual has the defence that they were exercising proper control in the interests of the other person, they are at risk of being arrested and prosecuted. That would be a serious concern, would it not?

I should also add—I do not think this point is controversial—that there is an exemption within section 76 concerning under-16s. In other words, where people are in a position of responsibility for somebody who is under the age of 16 and may have to inhibit that person’s liberty, that is considered perfectly understandable and justified. The argument would therefore be this: why is it that in circumstances where, sadly, an individual is at risk and vulnerable, it should not be open to that carer—who everyone accepts is loving, decent and caring—to say that this was in the interests of the individual?

I accept the hon. Gentleman’s premise that it is possible that some people would seek to advance an unmeritorious defence. That is absolutely right, but I respectfully say to him that when he says, “The courts let them get away with it,” he is unfairly labelling the courts. In my opinion, the courts have shown themselves well able to see through a spurious defence. The carer who seeks to try it on and to abuse this proper defence will be given short shrift by a bench of magistrates, or indeed by a jury. We should trust juries and courts to do justice in each case.

[Jess Phillips]

Why does the Minister not think that the courts and juries can be trusted on the rough sex defence?

[Alex Chalk]

Because juries have to have a rough sex defence to consider. That is our job. Our job is to create the statute.

[Jess Phillips]

It is the same.

[Alex Chalk]

No, it is not the same at all. If the hon. Lady will listen for a moment, the point is that there is, on the face of a statute, a defence that the jury can consider. They get to consider it only if a judge is satisfied that there is a prima facie defence—in other words, if what the defendant is advancing is patently and transparently unmeritorious, it may well not even go to a jury. A judge might say, “This is such a load of old nonsense that it doesn’t even cross the threshold for a jury to decide.” It is simply where there is a prima facie case. We should trust juries to say, “Is there something in that, or is there not?” It is not for us to adjudicate in every single case. Trust juries; trust the people. It is different from the point that the hon. Lady was making about rough sex, because there was a lacuna in the law. Our job is to fill the lacuna and then leave it to juries, who have shown for many centuries that they are well placed to do justice in a specific case.

I will make a final point on this issue, because I do not want to dwell too long on it. If the policy were not in place, there is a danger that the same people that the hon. Member for Hove quite properly wants to stand up for, and who we want to stand up for—namely, people with disabilities—could be disadvantaged if people take the view of, “Hold on a moment. By doing what I think is genuinely and objectively in the best interests of an individual, I am at risk of conviction, punishment and disgrace. Do you know what? Why on earth should I be doing that? Why should I be putting myself at risk in that way.” We have to ensure that we do not inadvertently, and despite the best intentions, find ourselves making life more difficult for the people we want to support.

[Peter Kyle]

The Minister is a very effective advocate, but the bottom line is that all the agencies representing frontline victims and survivors are speaking with unanimity. They want the law changed and the new clause struck off, because they say it is affecting their service users. There is no organisation out there working with service users that is defending the clause; it is only him.

[Alex Chalk]

With respect, that is not a fair characterisation. Parliament had the opportunity to consider the Bill in 2015. It went through Committee stage in this House, and it went through the House of Lords. It was Parliament’s will that it should exist. What is now being suggested, less than five years later, is that we should sweep away something that was there in the past. In my respectful submission, the case for that has not been made.

Of course, all matters are considered with care, particularly matters of this kind of sensitivity, but we have to be alive to the fact that sometimes, if we remove such a defence, we risk making the position far worse for the people we want to protect. We see that time and again when people are concerned that if they are not given the opportunity to advance their defence and simply to say, “Listen, you decide whether I have got this wrong.” If they do not have the option at least to put forward their defence so that 12 people who have no prior knowledge can make a fair decision, it would be unfair on them and would risk unfairness to people with disabilities.

The final point that I want to make is that the equivalent domestic abuse offence in Scotland contains a similar defence, under section 6 of the Domestic Abuse (Scotland) Act 2018, as does the proposed new domestic abuse offence in Northern Ireland, which is clause 12 of the Domestic Abuse and Family Proceedings Bill, currently before the Northern Ireland Assembly. This is not an outlier provision, I respectfully submit.

Notwithstanding the very proper concerns expressed by the hon. Gentleman, I invite him to consider that, set in a wider context, seeking to exclude the provision is not necessary. In the light of my explanation, I invite him to withdraw the new clause.

--- Later in debate ---

[Jess Phillips]

I will discuss some of the potential foibles of the 2015 Act, which we have already mentioned. I say graciously before I start that Parliament does not always get everything right, and I loathe the culture in which we have to call something a U-turn, when actually evidence and other things change, different things come to light and people change their minds. That is okay, but we are not allowed to do that in politics without it being labelled a certain thing. I totally support the legislation but, specifically in the coercive control measures, there are some errors. In reality, only time and test ever measure these things.

In discussing the new clause, I will focus on post-separation abuse, but I will first talk briefly about economic abuse by way of context, as they are closely linked in this instance. I welcome the inclusion of economic abuse in the definition of domestic abuse in the Bill, recognising how that is often hidden but incredibly destructive as a form of abuse. The Bill now acknowledges and names the experience of the victims and their families, supporting them to find justice by holding a perpetrator to account across a full range of abusive behaviours.

That move has been hugely welcomed, particularly by organisations that work with victims and see day in, day out how perpetrators use economic abuse to exert control, whether to trap the victim so that they cannot afford to leave, or to force them into destitution after they have left, so that they are unable to move on and rebuild their lives. One of those organisations is the UK charity Surviving Economic Abuse, which exists solely to raise awareness of economic abuse and to transform the responses to it.

The term “economic abuse” may be new to domestic abuse legislation, but that form of abuse is certainly not new. One in five women in the UK report having experienced economic abuse from a current or former intimate partner, and 95% of domestic abuse victims report that they have suffered economic abuse. It is widespread.

Economic abuse makes the victim dependent on the perpetrator and limits their choices and their ability to leave. The behaviour is insidious and might not be recognised by the victim. The perpetrator might introduce it as an offer to help, or to take away the worry and burden of dealing with finances, seemingly in a caring way, or they might have simply assumed control through force, threats and coercion.

Through economic exploitation, the perpetrator looks to benefit from the victim’s economic resources and, in so doing, sabotages their economic independence. That exploitation may consist of things such as demanding that the victim alone pays the household bills, while the perpetrator spends their own money on whatever they like. The perpetrator may also build up debt in the victim’s name, through coercion or fraud, or steal or damage the victim’s property, which then has to be replaced. In my experience, the thing that is seen the most is the build-up of debt in someone’s name; certainly that is the thing that people struggle to live with thereafter.

This all has a hugely destabilising impact on the victim’s economic wellbeing and, again, limits their choices and ability to leave. Economic abuse can leave victims trapped and destitute, either while in a relationship with the perpetrator or post separation as they navigate life with inescapable debt, insecure housing and financial hardship. Economic safety underpins physical safety. Building an independent life can, for many victims of economic abuse, feel impossible.

Why is the new clause vital? To answer that question, I want to talk about economic abuse following the end of intimate partner relationships. Economic abuse does not simply stop when the relationship ends. Control continues through joint resources, and in fact the perpetrator can still sabotage the victim’s resources even if they do not know where the victim is. An abuser might wipe out money in a joint account that a victim relies on, or refuse to pay an overdraft so that penalties build up and the victim cannot afford to continue paying it. The end of a relationship does not prevent the abuser from taking away a victim’s home, interfering with their ability to work and earn money, or constantly taking the victim to court in connection with their children. It also does not mean that the abuser suddenly forgets the victim’s personal information, which can be used to apply for credit in their name.

In reality, economic abuse can continue, escalate or even start after separation. Research has shown that economic abuse is actually more prevalent post separation. It is clear why: when other forms of control may have been removed, controlling an ex-partner’s access to economic resources, such as by refusing to pay child maintenance, which we heard about yesterday, or refusing to sell a jointly owned home to free up much-needed money, may be the only way in which the abuser can continue to control the victim—and what powerful and destructive control that can be.

Victims can be left with such significant debts and poor credit ratings that they are unable to move on or rebuild their lives, yet at present legislation does not afford victims the protection that they need. The link between economic abuse and controlling and coercive behaviour is stark. Analysis by Surviving Economic Abuse of successful prosecutions for the controlling or coercive behaviour offence shows that six in 10 involve economic abuse, yet limitations within the controlling or coercive behaviour offence mean that, at present, victims of economic abuse post separation are unable to seek justice.

As a result, the perpetrator can continue to control their ex-partner for years and even decades. That is because, for the abuser’s actions to fall within the controlling or coercive behaviour offence, perpetrator and victim must have been “personally connected”, as defined in the Serious Crime Act, and that definition differs from what we have in the Domestic Abuse Bill, which clearly states that someone has been in a relationship or is no longer. That is clearly outlined in this new and better definition.

Under the Serious Crime Act, two people will be considered as personally connected if they are in an intimate relationship with each other, or they live together and either are family members or have previously been in an intimate relationship with each other. The result is that where a couple are no longer in an intimate relationship and they do not live together, behaviour by one of them towards the other cannot fall within the offence of controlling or coercive behaviour.

That is why the new clause is vital. We know from research and what we have heard throughout the progress of the Bill that coercive control continues after the victim’s relationship with the perpetrator has ended and they are no longer living together. That is particularly true of forms of abuse that do not rely on physical proximity or the continuation of intimate relationships with the perpetrator, economic abuse being the key example.

Surviving Economic Abuse has shared the story of a woman in this position, and I want to share it with Members. Layla—not her real name—was married for more than 20 years to her abuser and has three children. Throughout the marriage, her husband was controlling and coercive, both economically and emotionally. He would do things such as pressure her to transfer money into his bank account and force her to let him use her credit card. He ran up debt on her credit card and, after separation, forced her to release hundreds of thousands of pounds of equity from the mortgage. Layla continues to pay the debts that he has put in her name, including bank loans of £70,000. He continues to use her contact details rather than his own, so she is being regularly chased by creditors for money. She has also been regularly visited by bailiffs demanding payment of the abuser’s debts, which she has to pay.

Layla has been to the police, but they said that

“the continuing economic abuse cannot be considered under the coercive control offence as the perpetrator had left her.”

Where is the justice in that? We must change that and bring the definition of “personally connected” as it is defined in the Serious Crime Act in line with what we have in the Bill, so that victims such as Layla no longer face the possibility of being a victim of economic abuse going unchallenged for the rest of their lives.

The Bill recognises that abuse can continue post separation and that it does not require the abuser and victim to be in an ongoing relationship or living together. Through the new clause, which has been called for by Surviving Economic Abuse and which has support from SafeLives and many other organisations in the violence against women and girls sector, we can bring those definitions in line with each other so that the intentions of the Bill are not undermined by other legislation, and victims are protected by law and can seek justice. The new clause does that by removing the requirement for intimate partners or family members to be living together for the abuser’s actions to fall under the controlling and coercive behaviour offence.

[Alex Chalk]

I thank the hon. Lady for her excellent and helpful representations. The context is that I entirely agree with the premise of her point. If I can crystallise it, she is in effect saying, “Look, one of the most pernicious ways you can abuse another individual is through economic abuse.” It is worth stepping back for a second to say that, although we recognise that in this room, if we went back as little as 15 years ago, that might have been a moot point. People have come to realise that this is a particularly potent and cruel weapon to use, and that acknowledgement is a thread that is increasingly starting to run through the law.

The hon. Lady rightly points out that the Serious Crime Act 2015 creates the offence of coercive control, but the definition of domestic abuse in this Bill is one reason why it is it such an important piece of legislation. If someone had been asked what domestic abuse was 15 years ago, they would probably have said, “Domestic abuse is domestic violence, isn’t it?” No, because clause 1(3) says:

“Behaviour is “abusive” if it consists of any of the following—

(a) physical or sexual abuse;

(b) violent or threatening behaviour;

(c) controlling or coercive behaviour;

(d) economic abuse (see subsection (4));”

When we turn to subsection (4), it says:

“‘Economic abuse’ means any behaviour that has a substantial adverse effect

on B’s ability to—

(a) acquire, use or maintain money or other property, or

(b) obtain goods or services.”

I wanted to take stock of where we have come to, because that will inform some of the points that I make in response.

The final thing that I will say by way of context is that the Divorce, Dissolution and Separation Bill, which I am taking through the Committee of the whole House this afternoon, considers precisely this issue. When we say that a minimum of six months is the appropriate period for people to move on from a relationship, where some have said that it should be longer, one of the important rebuttal points is, “Hold on a minute. If someone needs to move on with their lives, potentially from an abusive relationship, they need to make sure that it can happen within a reasonable period so that the economic abuse cannot be perpetuated.” We absolutely get that point, and I would say—I hope not immodestly—that we have spearheaded it.

I entirely agree with the Surviving Economic Abuse charity raising the issue, and it has done an important public service in doing so. To turn to the specific point, as we have heard, the new clause seeks to address another aspect of controlling or coercive behaviour. As the hon. Lady indicated, there have been calls from Surviving Economic Abuse and other domestic abuse charities and victims to expand the offence under section 76 of the 2015 Act by removing the living together requirement for former partners. As the offence stands, it applies only to controlling or coercive behaviour between intimate partners or former partners and family members who are living together.

--- Later in debate ---

[Peter Kyle]

Speak for yourself!

[Alex Chalk]

I am sure that hon. Gentleman does look at it.

The 1997 Act was amended to include section 2A, which deals with the “Offence of stalking”. Section 2A says:

“A person is guilty of an offence if… the person pursues a course of conduct… and… the course of conduct amounts to stalking.”

Then, however—this is what I think is brilliant—the 2012 Act goes on to look at the sorts of behaviour that might constitute stalking. Subsection (3) says:

“The following are examples of acts or omissions which, in particular circumstances, are ones associated with stalking… following a person… contacting, or attempting to contact, a person by any means… publishing any statement”

relating to that person. It continues:

“monitoring the use… of the internet… loitering in any place… interfering with any property in the possession of a person… watching or spying on a person.”

The reason why that is important is that it sets out the sorts of behaviour that could be stalking, but it is not exhaustive.

The reason why I say of all that is that if someone at the end of a relationship, when the two people are no longer living together, engages in a course of conduct that, to the man or woman on the Clapham omnibus, is a bit like stalking—whether or not that means trying to exert economic control—there is the potential for offences there, and I will come on to them while I am still sympathetic to the point made by the hon. Member for Birmingham, Yardley.

I am particularly mindful of that because in my own county of Gloucestershire—the Under-Secretary of State for the Home Department, my hon. Friend the Member for Louth and Horncastle has already mentioned this—Hollie Gazzard was brutally murdered. Those who have been victims of stalking say that it is like murder in slow motion, because of so much of what precedes it in terms of stalking behaviour. My point is that that can include economic abuse as well.

However, Surviving Economic Abuse argues further that stalking and harassment offences, although relevant, are not designed specifically to prosecute the sort of behaviour we are discussing. I accept that, but it is also fair to point out that, because of the way that stalking offences are drafted, it is not beyond the wit of man or woman to conceive of how they could be included, based on the facts of a specific case.

In addition, the new statutory definition of domestic abuse includes ex-partners among those defined as “personally connected” and does not have a “living together” requirement. Therefore, an amendment to the controlling or coercive behaviour offence could be seen as conforming within the definition in clause 1.

However, the case is not clearcut, given that the offence is still relatively new, and there is currently limited data available in support of a change. Because the case is not clearcut, the Government committed, in response to our 2018 consultation on domestic abuse, to conduct a review of the offence, as the hon. Lady is aware.

[Jess Phillips]

I love a review.

[Alex Chalk]

The hon. Lady loves a review, she says sotto voce.

Although Home Office officials have made good progress with the review, I am afraid that it has been one of the casualties of the covid-19 pandemic, which has meant that focus has had to be reapplied to supporting victims of domestic abuse at this time. However, the review is in place, and I am grateful to the hon. Lady for her acknowledgement and understanding of the situation.

We hope to conclude the review by the early autumn, because it is important that we have a sound evidence base for any changes to the offence, but we have heard what the hon. Lady says; the points she made are not improper or unmeritorious, and we invite her to await the outcome of the review. I hope that, in the light of my explanation, and on the understanding that we aim to complete the review by early autumn, the hon. Lady will see her way to withdrawing the new clause.

[Jess Phillips]

Absolutely, and I feel that I have the ear of the Minister in this particular regard. The case is quite clear to me; in the circumstances he has outlined, he is absolutely right. If he thinks that people do not read the statute here, I should say that they certainly do not in Stechford Police Station.

The reality is, what would the charge be? I find it difficult to think that the copper, in reality, on the ground, is going to say, “Actually, I think this will be a stalking charge.”

[Alex Chalk]

I grappled with this as a Back Bencher when we wanted to increase the maximum sentence, and for precisely that reason—would a police officer, or the CPS, think it was worth the powder and shot to charge someone with stalking when the maximum sentence was only five years? It is now 10 years, because of the private Member’s Bill. If someone engages in a course of conduct that seriously damages an individual, be it by economic abuse, or by hanging around outside the school gates or whatever, the courts have the power to impose what lawyers pompously refer to as “condign punishment”. That provides a powerful incentive for police officers, who want to do justice in the case, to reach for the lever available to them.

[Jess Phillips]

I appreciate that, and I hope that that would happen in these cases. However, the cases that I am sure will inform the review that the Minister talks about show people often left without an option, rather than with a plethora of different statutory instruments that they could use. The reality is that lots of people simply get sent away with no further action. However, I take on board what the Minister has said about the review. As everyone knows, I absolutely love a review—for the benefit of Hansard readers, I am being sarcastic. I will await the autumn. In the meantime, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 29

Domestic Abuse: immigration and nationality legal aid

“(1) The Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows: in Part 1 of Schedule 1, delete paragraphs 28 and 29 and insert—

‘Immigration and nationality: victims of domestic abuse

27A (1) Civil legal services provided to a victim of domestic abuse in relation to rights to enter, and to remain in, the United Kingdom and to British citizenship, but only in circumstances arising from that abuse.

27B (2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this Schedule.

27B (3) The services described in sub-paragraph (1) do not include attendance at an interview conducted on behalf of the Secretary of State with a view to reaching a decision on an application.

27B (4) In this paragraph—

“domestic abuse” has the same meaning as in section 1 of the Domestic Abuse Act 2020;

“victim” includes the dependent child of a person who is a victim of domestic abuse.’” —(Jess Phillips.)

This new clause would provide for legal aid for survivors of domestic abuse (and their dependent children) in relation to their immigration or nationality status or rights insofar as the need for legal aid arises from the abuse’

Brought up, and read the First time.

--- Later in debate ---

The severe cuts to legal aid in the last round mean that it often takes longer than three months for migrant survivors to access legal aid and immigration advice. Cuts to legal aid have created a shortage of specialist immigration advisers, who would typically help with the domestic violence rule application. We have revered lawyers a lot in this Committee.

[Alex Chalk]

Hear, hear.

[Jess Phillips]

I am not wholly sure that we will be hearing from all the immigration solicitors that I have come across in my life. I think there is a definite problem in the system with regard to some immigration advice that I get to see being charged for and paid for.

[Alex Chalk]

I thank the hon. Lady for making that incredibly important point. When somebody is prosecuted by the Office of the Immigration Services Commissioner, it is a serious issue of unscrupulous, unqualified, unethical individuals giving legal advice, and that is a particularly shabby thing to do when know the impact on the victim is known.

[Jess Phillips]

It certainly is. In these circumstances, people turning up to my office, having forked out £5,000 for a form that they could definitely have filled in by themselves, even if English is not their first language, is a phenomenon. I am afraid to say, I even have some come to my office and ask me to refer people directly to them, as if, like a quid pro quo, they will give free legal advice if we send people. It is a wild west situation.

That brings me to new clause 29, which seeks to provide migrant survivors with legal aid. Often, the cases are complex and it cannot be left to specialist BAME organisations to provide that legal advice. As I mentioned, there is already a deficit in specialist BAME services. Failure to protect all migrant women from abuse has wide-ranging financial and societal consequences —consequences that exceed the cost of extending eligibility of the DV rule and the DDVC.

The economic cost of supporting migrant women with NRPF is often borne out. We might not be paying for it at the Home Office, but it is often borne out by local children’s services, local councils, health and education services, the police and the criminal justice system, as well as by non-statutory agencies. Many women rely on section 17 support under the Children’s Act 1989, which would not be the case if they were eligible for the DV rule and the DDVC. We end up somehow paying for it with either lives lost or some other scheme somewhere along the line.

In its briefing paper on migrant women, Southall Black Sisters highlighted that London boroughs in 2017-18 supported 2,881 households with no recourse to public funds, at a cost of £53.7 million. That was primarily linked to the discharge of their duties under the Children’s Act 1989. The average duration of local authority support is under two and half years, with 30% of families being made dependent for 1,000 days or longer, often because of Home Office delays in resolving immigration claims. One of the primary groups referred to local authorities with NRPF is single mothers who are subject to domestic abuse. The majority of households no longer require local authority support when they are granted leave to remain, because they go on to find work. Surely that is what we all want to see happening.

What assessment have the Government made of how much it would cost to extend the domestic violence rule to all migrant victims? I guess it would cost less than the millions run up by the statutory and non-statutory services to support migrant women. It would be cheaper, and it would certainly be kinder. Although it would perhaps not be so ideologically pure, it would be the right thing to do. Furthermore, by hindering access to life-saving support, there are wider implications for the Government’s international human rights commitments and obligations to combat violence against women and girls.

In their October 2019 report on the ratification of the Istanbul convention, the Government amended the status of their progress on article 4.3, which is the non-discriminatory section, and on article 59, which includes measures to protect victims whose residency status is dependent on a partner, from “compliant” to “under review”—going backwards. As a consequence of their inadequate response to migrant victims of domestic abuse, the Government must now use the opportunity provided by the Bill to ensure meaningful protection for all women.

I am nearly done—worry not—because I want the Minister to have plenty of time to respond. In the evidence session, the hon. Member for Louth and Horncastle talked about the national referral mechanism after it was raised by another Member. In fact, a victim of domestic violence was asked during the evidence session whether she had been referred to the national referral mechanism. As somebody who used to be one of the people administering the national referral mechanism and who ran one of the trafficking services for many years—in fact, I helped to set it up with the Salvation Army as one of the sub-contractors—I want to express, for the benefit of the Committee, some concerns about the cross-over with the national referral mechanism in such cases.

The national referral mechanism has never been used to deal with cases of domestic abuse; that was never its intention. I read the guidance during the weekend after the evidence session. The only mention of domestic abuse in the thousands of pages of guidance suggests that when people identify a victim, they should use some of their experiences with victims of domestic abuse, because victims might react similarly and might not want to talk. That is literally the only mention.

There is some mention of forced marriage and sham marriage in the guidance. However, I have been speaking to the providers this week and have been asking them about how many cases they have seen where those are factors. It is vanishingly rare. Lots of the providers offer both domestic violence services and trafficking services. There is Ashiana Sheffield and Black Country Women’s Aid, where I used to work. They provide both domestic violence services and trafficking services, which are completely distinct. There has never been any suggestion that migrant victims with no recourse to public funds would be able to get through the NRM. As someone who has taken referrals through the NRM, I can tell Members that if a person tried to take these cases through that mechanism—probably with some immigration lawyer helping them to do so—it would count against them. It would look as if they were gaming the system, because these cases inevitably would not get through the NRM. Almost no migrant women on non-spousal visas would be able to access the NRM: it is not for them. They have not been exploited, there are not means, and there are not the three main things that are needed to make a trafficking referral.

However, well over five days ago, I tabled some named day questions to the Home Office. I have not had a response, but I have chased them again this morning; maybe the Minister can answer some of those questions. I asked whether the Secretary of State for the Home Department would

“publish all correspondence between her Department and the contract provider for the Modern Slavery Victim Care Contract on the inclusion within that contract of support services for victims of domestic abuse with no recourse to public funds.”

I also asked the Secretary of State

“how many applications to the National Referral Mechanism (NRM) made reference to forced marriage in the last full reporting year; of those how many people were (a) accepted into the NRM and (b) had their application declined.”

Southall Black Sisters, working with a number of other agencies, has circulated a pretty comprehensive guide to why these particular victims would not qualify. That is not to say that the NRM is not a good system; these victims just would not qualify for it, and it is quite laborious to try to put them through it, so I am not sure why we are currently wagering on the NRM.