Baroness Hamwee
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Domestic Abuse Bill
Baroness Hamwee ExcerptsMonday 1st February 2021
(3 years, 10 months ago)
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Baroness Hamwee
“(aa) the disclosure of any immigration information (see subsection (5A));”Member’s explanatory statement
This amendment, along with the other amendment in the name of Baroness Hamwee to Clause 17, would ensure that the bill did not authorise the disclosure of any immigration information.
Baroness Hamwee (LD) [V]
My Lords, we have Amendments 55 and 56 in this group, and my name is also to Amendment 154 in the name of the noble Baroness, Lady Meacher.
From the moment the Data Protection Bill, as it was, arrived in this House, we opposed paragraph 4 of Schedule 2, which exempts data processed for purposes relating to “effective immigration control” from the protection provisions. Our reasons range from the ethical, for instance, solicitors being unable to obtain what the Home Office knows or thinks it knows about a client; to the humanitarian, for instance, deterring asylum seekers from seeking assistance to which they are entitled; to the practical, for instance, there are obvious implications for public health if people seek to stay under the radar.
The vulnerability of migrants subjected to domestic abuse is recognised by the commissioner-designate, and we have more amendments to come on different issues. It is recognised by Her Majesty’s Inspector of Constabulary and Fire & Rescue Services, who has recently said:
“Victims should have every confidence in approaching the police for protection. They should expect and receive protection at times when they are vulnerable and so desperately need the assistance of the agents of the state. Victims should never be in a position where they fear the actions of the police could unintentionally but severely intensify their vulnerability and thereby strengthen the hands of organised criminals and others whose motives and objectives are to inspire fear and do them harm.”
There is an obvious read-across from that. The vulnerability and fragility I mentioned are also recognised by the Government, but by way of a pilot.
As well as the stand-alone proposed new clause, which is Amendment 154, it seems to us necessary to address the issue in the specific clause regarding disclosure of information both by and to the commissioner. Patient information is dealt with; nothing requires or authorises its disclosure, and that is right. Nothing requires or authorises disclosure that would contravene data protection legislation. That does not preclude processing—the term used—of personal data for
“the investigation or detection of activities that would undermine the maintenance of effective immigration control.”
We very much support Amendment 154, whose authors have thought through many aspects of this. They urge that we do not put the commissioner in a position where information may not, out of fear, be confided in her, or where she is required to disclose immigration information. As so often happens when one returns to an amendment, I can see Amendments 55 and 56 might be more nuanced and detailed, but it is important, at this point, to get the matter on to the table. I beg to move Amendment 55.
Baroness Meacher (CB) [V]
My Lords, I will speak to Amendment 154 in my name. I thank the noble Baronesses, Lady Wilcox and Lady Hamwee, and the right reverend Prelate the Bishop of London for supporting it.
The key point is that victims of domestic abuse and their witnesses must be able to divulge personal data in the context of seeking or receiving support or assistance related to domestic abuse without the risk that such data may be used for immigration control purposes. Proposed new subsections (1) and (2) require the Secretary of State to make arrangements to honour this key principle and proposed new subsection (4) requires them to issue guidance to relevant officials and others affected by the new clause.
Migrant women with insecure immigration status are, in my view very understandably, reluctant to report domestic abuse to the statutory services. Would you, one might ask, particularly to the police? This reluctance is due to the current data-sharing agreements between statutory services, including the police and the Home Office, for immigration control purposes. This means that women affected cannot seek support or a safe place to go, with the most appalling consequences, as one can very easily imagine. Perpetrators are not being brought to justice.
In 2019, the Step Up Migrant Women campaign found that half of migrant women with insecure immigration status do not report abuse to the police for fear of detention and deportation. The use of insecure immigration status by perpetrators as a tool of coercive control has been highlighted for many years. CEDAW highlights this problem and calls on states to repeal restrictive immigration laws that leave migrant domestic workers vulnerable in this way. Imkaan’s vital statistics report shows that no less than 92% of migrant women have reported deportation threats from their perpetrator.
The Government’s draft statutory guidance framework for the Bill recognises the situation; indeed, it recognises the need for more support if these women are to seek help, but this support is not available in this Bill. The Government’s response has been to announce a pilot scheme to assess the needs of migrant women and provide those with no recourse to public funds with emergency accommodation. This is really concerning. As I have said, we know very well what the issues are and their consequences for migrant women. We know perfectly well what their needs are—the same as those of other women or men subject to domestic abuse—so I do not believe that we need this pilot. We need legislative protection for the women involved. If the Bill is passed without a solution to this problem, it could be years before the next appropriate piece of legislation. I really hope the Minister will agree that the proposed pilot is redundant and therefore not appropriate at this point.
The briefing sent to us by Step Up Migrant Women and others includes a number of heart-rending cases—I am very happy to pass them on to the Minister, but I have a feeling she already has them. She might want to make that clear.
In view of the serious crimes that go unpunished because of the fears of women with insecure migrant status, it is not surprising that the Equality and Human Rights Commission supports this and related amendments. The EHRC refers to a joint report of several policing bodies, including the HMICFRS, which found that victims of crime with insecure or uncertain immigration status are fearful that, if they report crimes to the police, their information will be shared with the Home Office. It concluded that the current system of information sharing between the police and the Home Office was causing significant harm to the public interest. I hope the Minister will respond to this particular concern in her response.
I put on record that, in 2019, the draft Bill committee made a clear recommendation to the Government to establish
“a firewall at the levels of policy and practice to separate reporting of crime and access to support services from immigration control”.
That is exactly what this amendment seeks to do.
Finally, as the Minister knows, without this amendment, and no doubt others, the measures in this Bill will not be compliant with Article 4(3) of the Istanbul convention, which states that
“provisions of this Convention by the Parties, in particular measures to protect the rights of victims, shall be secured without discrimination on any ground such as … national or social origin … migrant or refugee status”.
The Minister will know that, in December 2019, the Government stood on a manifesto pledging to support all victims of domestic abuse. Can we discuss how to deal with this before Report? I am tremendously aware that she is responsible for, I think, three Bills—overwhelming, I must say—and is clearly extremely busy, but I would very much welcome even 10 or 15 minutes to try to clarify where we might go on Report. I realise that these are complex issues but very much hope that the Minister will work with her colleagues to achieve government support for this amendment or something like it.
Baroness Hamwee (LD) [V]
My Lords, I do not think this is going to be the end of our discussion regarding victims whose immigration status is insecure, or they believe to be insecure. The noble Baroness, Lady Meacher, talked about a “tool of coercive control” and someone else—I am afraid I did not make a note who, but it might have been the noble Baroness, Lady Wilcox—talked about the power of an abuser. We should not be contributing to the power of the abuser, nor contributing a tool to the abuser.
The Minister has confirmed, and I am glad to hear it, that the Home Office’s approach is to treat an abused person as a victim first, but this needs to be followed through. Providing data to police or other authorities does not answer the issue to which noble Lords have been speaking. What if the victim knows that she or he is unlikely to be able to regularise their status? The Minister referred to the HMI report following the super-complaint. As stated in its press release, the investigation’s recommendations included:
“the Home Office should review the relevant legal framework and policy to establish sound and fair priorities regarding migrant victims of crime and migrant witnesses to crime, with insecure or uncertain immigration status”.
The Home Office is reviewing that. But this is the opportunity to deal with the matter in legislation and surely, given our data protection legislation, it needs primary legislation and not just guidance. I believe we will come back to this amendment on Report, but for the moment, I beg leave to withdraw it.
Baroness Hamwee
Member’s explanatory statement
This amendment would enable a notice to apply in respect of non-residential premises.
Baroness Hamwee (LD) [V]
My Lords, we have Amendment 57 in this group—or clutch—of amendments, pushing what I hope is an open door: the need for protection of abused or allegedly abused people not only at home. The Government have an amendment extending prohibition to other places, and another amendment relating to the workplace or educational establishment, and those are welcome. Other noble Lords will speak to their amendments using terminology about where the abuser or alleged abuser lives or works. Amendment 79 would allow for discretion when both parties worked in the same place.
Our Amendment 57 is similar to the Government’s amendment, but it applies to domestic abuse protection notices, whereas the Government’s amendment is about domestic abuse protection orders. I regard notices as preventative—not leading inevitably to an order. It is far better, to state the obvious, if one can head off abuse by a notice. Perhaps I am naive in hoping so, but I note that the Minister’s letter or the draft guidance recently circulated—I cannot remember which one—makes the same point. In any event, reasons for including the workplace and other premises as prohibited, apart from the home, can surely apply when a notice is given as well as subsequently. As a matter of drafting, I wondered why Clause 21(2) was necessary, since it seems to be covered by Clause 21(1), but that is not the issue and it certainly makes the point as to what is covered. I suspect that others are going to make very similar points, but I beg to move Amendment 57.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, Amendments 58, 59, 60, 74, 76, 77 and 79 are tabled in my name and that of my noble friend Lord Hunt of Kings Heath. I am grateful to all noble Lords who have signed up to speak in support of them, in particular the noble Baronesses, Lady Ritchie of Downpatrick and Lady Newlove.
These workplace amendments were discussed in the other place and it is right that we make it absolutely clear in the Bill that domestic abuse protection orders and the notices that precede them can cover a victim’s workplace as well as their home. Presently, the Bill says only that a perpetrator can be prevented from coming within a certain distance of where a victim lives. I acknowledge that the noble Baroness, Lady Williams of Trafford, has tabled Amendment 75, which uses the term “specified premises”, but I would prefer the word “workplace” in the Bill, as that is stronger. The amendments I am proposing would ensure that those making domestic abuse protection notices and orders had the discretion to consider the workplace as well as the home.
The Government have said that they would expect a domestic abuse protection order to include restrictions on a perpetrator’s access to where the victim works if the court considered it necessary. However, expectation is not strong enough; the workplace should be referred to explicitly. Work is an important part of people’s lives; other than their home, it is the one place where they are present during fixed hours, normally in a fixed place. That makes a person vulnerable and victims need the added protection that my group of amendments would bring.
There is also the issue of the perpetrator seeking to drive a victim out of work to wreck their economic circumstances, as well as the other horrors they are seeking to inflict on a victim. Women have been murdered at work and the Government have a responsibility to ensure that victims are protected in all aspects of their lives. In 2005, Clare Bernal was killed by her ex-boyfriend—who worked on the same premises as she did—while she was at work. In 2010, Jane Clough was murdered by her ex-boyfriend as she walked into work. In 2014, Hollie Gazzard was murdered by her partner at her place of work. In 2016, four women were murdered in their workplaces by men. All these women would have benefited from stronger workplace protections.
The TUC undertook a survey and found that 47.3% of respondents said that their abusive partner turned up at their workplace and 43.6% said that they stalked them outside their workplace. Without the scope to extend domestic abuse protection orders to the workplace, victims will continue to be harassed, threatened and assaulted at work by abusive partners. Their job prospects and safety will continue to be threatened, and, tragically, as we have heard, in some cases they will be murdered.
Government Amendment 78 states that domestic abuse protection orders should avoid interfering with the perpetrator’s work, rather than, more specifically, their usual times of work. This should mean that in cases where a perpetrator and victim share a place of work, the perpetrator’s work patterns can be adapted to ensure the victim remains in work safely. It will be helpful if the noble Lord, Lord Parkinson of Whitley Bay, can confirm that that is the intention when he responds at the end of this debate, and that that will be made clear in any guidance issued by the Government.
This is a really important issue; victims need certainty and clarity to provide them with the protection they need. I hope that at the end of this debate we can get a positive statement that we need to look at this further and come back to it on Report.
Baroness Hamwee (LD) [V]
My Lords, I make it clear, if it was not already, that of course we welcome Amendment 75. I thought that naming victims who have been murdered at work or on their way to work makes the point very vividly. Rightly, it has been said that work can be a place of refuge when one’s home is not, but it is not the only place that should be specified, as noble Lords—particularly my noble friend Lord Paddick—have made very clear.
The noble Lord, Lord Rooker, referred to attendance at college, but a child’s school, when it is known that the other parent will be there at the start or end of a day, is also an issue. We have already talked during the passage of the Bill about a child being a witness and therefore also a victim, being drawn into the abuse. It strikes me, too, that in some circumstances it might well be helpful to a school to know that there is a prohibition on approaching the school premises.
If I may say so, the Minister’s explanation does not seem to answer the point. Clause 21 contains the words “may not contact the person”, but contact is different from coming within a given distance of a premises. Certainly the Government’s drafting for the order is better than the one that we put forward for notices, because it refers to premises of a specified description rather than requiring a particular address. That, as I say, is better, but having that in that part of the Bill must surely throw into doubt whether notices which are not just silent on the point but refer to premises in which the abused person lives can extend as far as my noble friend and I would wish, and, by implication, from what other noble Lords have said, as far as what they, too, regard as not just desirable but essential, given the detail into which the Bill goes. We welcome that but we would welcome more the bit in our amendment being added to it.
However, for the moment, I of course beg leave to withdraw the amendment.
Baroness Hamwee
Member’s explanatory statement
This amendment probes whether representations may be made about particular provisions of a notice.
Baroness Hamwee (LD) [V]
My Lords, we have Amendments 61, 65, 66, 67 and 70 in this group and support Amendment 63, in the name of the noble Lord, Lord Ponsonby, requiring a risk assessment, which I would have thought should be an automatic item on a check list.
Clause 22 deals with matters to be considered before giving a notice. We support a police officer being required, under the clause, to consider any representations about the giving of the notice—to use the words in the Bill—by the person to whom it is to be given. Amendment 61 is to establish that representations must be considered regarding the provisions of the notice. If that is not so, an officer could simply ignore representations about specific provisions, for instance—harking back to the previous debate—“But I work in the same building” as him or her.
Amendments 65, 66 and 67 are amendments to Clause 24, which deals with breach of a notice. Regarding Amendment 65, is it appropriate that, if it is believed that there is a breach of a notice and a person is arrested, he or she is automatically held in custody, albeit for a very short period—possibly overnight, sometimes over a weekend? I have not discussed this with my noble friend Lord Paddick, but is there a risk of the use of custody as a punishment in itself—“Let’s put him in a cell to cool down”, that sort of thing? Should this not, however, be at the discretion of the officer?
Clause 24(7) allows the court to impose requirements when remanding on bail. Amendment 66 probes whether a domestic abuse protection notice continues in any event, with its requirements, or are these transferred to become conditions of bail if the court so decides?
Amendment 67 addresses “interference” with witnesses. I guess that this term has a history in legislation, but the amendment probes whether it means or covers direct or indirect contact with witnesses, for instance via a third party or social media. The same point would apply, in the last of our amendments, to Clause 38. I beg to move.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, I will speak to Amendment 63 which, as the noble Baroness, Lady Hamwee, said, would ensure that a risk assessment is carried out. That would consider any risk to the victim which was likely to occur due to the perpetrator being given notice that a DAPO is likely to be given to the perpetrator.
I presume that the amendments in this group are probing amendments—mine certainly is—going into the detail of how the DAPOs and notices are to be administered. It is right that these are only probing amendments because each case is different and, while there should be comprehensive guidelines on the way that the police operate these procedures, they need to be sufficiently flexible for police officers to make reasoned judgments. There is a very real point about risk assessments: it could be that the victim is put at greater risk through the perpetrator receiving a notice. Counter to that, it could also help the victim if an order is put on without her consent—but that is a matter for a separate amendment in a later group.
I support all the probing amendments in this group, and I look forward to the Minister’s response.
Baroness Williams of Trafford (Con)
My Lords, these probing amendments relate to the operation of domestic abuse protection notices. Clause 22 sets out the matters which the police must consider before issuing a notice. Among other things, the police must consider any representations made by the person on whom the notice is to be served. Amendment 61 seeks to probe whether any such representations can extend to the provisions included in the notice.
I agree fully with the noble Lord, Lord Paddick, that the police should give full consideration to any representations on all parts of the notice, including any of the restrictions, as listed in Clause 21, that they consider imposing.
The draft statutory guidance, published in advance of the Committee stage, covers the considerations that the police must make before a notice is authorised. Although the current draft makes no specific reference to the consideration of representations in respect of individual provisions to be included in a notice, I would be happy to ensure that this point is addressed in the final form of the guidance.
Amendment 63, in the name of the noble Lord, Lord Ponsonby, seeks to ensure that a risk assessment is carried out before a notice is given by the police to an alleged perpetrator. I fully support the intention of this amendment, which is to ensure that full consideration is given to the risks to victims when deciding whether to issue a notice. I think that probably brings into relief the point made by the noble Lord, Lord Paddick. Sadly, police enforcement action against a domestic abuse perpetrator can lead to the perpetrator blaming the victim and seeking to retaliate. That is why it so important that these notices and orders do not require the victim’s consent and that victims can therefore distance themselves from police action against the perpetrator. It is why it is extremely important that the notice can be used to provide immediate protection to the victim. In the aftermath of an incident, police can use a notice to evict the perpetrator from the victim’s home and prohibit the perpetrator from contacting the victim for up to 48 hours. Last Wednesday, I inadvertently referred to 24 hours, for which I apologise. This provides the victim with breathing space to consider their options and for police and specialist services to support the victim with safety planning.
The notice is followed by an application for a DAPO which is designed to provide longer-term protection and can be tailored to respond to the level of risk to the victim. Therefore, if police involvement in the case and the giving of a notice to the perpetrator have led to an escalation of risk to the victim, the DAPO can include provisions to address this risk.
Robust risk assessment is central to the police response to domestic abuse. The College of Policing guidance on domestic abuse stipulates that a risk assessment must be carried out in all domestic abuse cases. The importance of risk assessment when using a DAPN or order is also set out in the draft statutory guidance for police which has been published ahead of Committee. This guidance makes it clear that it is essential that police use appropriate specialist domestic abuse risk assessment or screening tools in consultation with partner agencies to safeguard the victim and reduce the risk of further harm by the perpetrator. The guidance also includes information on safety planning action that police should undertake alongside the notice and order.
Amendments 65, 66 and 67 deal with breach of a notice. Clause 24 provides that, where there are reasonable grounds for believing that a person is in breach of a notice, they can be arrested without warrant, held in custody and brought before a magistrate’s court within 24 hours, or in time to attend the scheduled hearing of the application for a domestic abuse protection order—whichever is sooner.
Amendment 65 would make the process of holding the perpetrator in custody following arrest for breach of a DAPN an optional matter for the police. Although I understand noble Lords’ concerns regarding the blanket nature of this provision, this amendment could put a victim at increased risk of harm, coercion or retribution once an alleged perpetrator is released. The amendment could lead to further breaches occurring while the court hearing is pending and increase the need for protective measures for victims during that period.
Clause 24 also provides that if the court decides to remand the person on bail, it can attach any conditions that are necessary to prevent the person obstructing the course of justice, for example interfering with witnesses. These are standard provisions, which largely replicate the approach taken for remand following breaches of protective orders, such as non-molestation orders, occupation orders and anti-social behaviour injunctions.
Amendment 66 seeks to test whether a notice would continue in force following the court imposing bail conditions under Clause 24. I can advise the noble Lord that if a court were to remand a person on bail under Clause 24, the notice would continue in effect until the application for a domestic abuse protection order had been determined or withdrawn.
Amendments 67 and 70 seek to probe what constitutes interference with a witness. The term “interference”, which is used in other legislation relating to bail requirements, would capture direct or indirect contact with the witness and is intended to protect against someone influencing a witness’s evidence, or dissuading a witness from giving evidence, for example.
I hope that those two explanations satisfy noble Lords and that consequently the noble Baroness, Lady Hamwee, will be happy to withdraw the amendment.
Baroness Hamwee (LD) [V]
My Lords, these are indeed probing amendments. With our amendment to Clause 24, by using the term “may” rather than “must” about custody, we were proposing discretion, not precluding custody.
I am grateful to the Minister for her confirmation of various points and for her suggestion that the guidance is adjusted to cover the point made at the start of the debate. I beg leave to withdraw Amendment 61.
Baroness Hamwee
Member’s explanatory statement
This amendment is consequential on the amendment in the name of Lord Paddick to Clause 26(3).
Baroness Hamwee (LD) [V]
My Lords, we have Amendments 64, 68 and 69. Clause 26 takes us fully into the area of protection orders. Of course, we have been referring to them this afternoon. We are particularly concerned about how the Bill is constructed to mean—as I read it—that there is an inevitability about a protection order following a protection notice. I appreciate that there are stand-alone protection orders: those are not the ones I am referring to here.
Under Clause 26(3), the police must apply for an order if they have given a notice. Our Amendment 68 would change that “must” to “may”. Clause 27(1), to which we have tabled Amendment 69, makes a similar point. The wording in the Bill is “required … to apply”. Amendment 64 anticipates those two amendments. Of course, we are not arguing that there should never be protection orders, but does the Bill have the right balance? It seems to me that the Minister’s descriptions, in response to the last group of amendments, of situations in which a protection order could be used, make that point very well. I find it quite depressing to see that notices would always be regarded as precursors to an order. Do notices not have their own place in prevention? In other words, this group of amendments asks: is the balance in the Bill right? I beg to move.
Baroness Butler-Sloss (CB) [V]
My Lords, I support Amendment 68. This is really a very short point; it is a question of flexibility. There may be circumstances where a protection order has been issued, but by the time it comes to a senior officer, circumstances have changed and it would be far better not to have it go forward. It would be wise, as the noble Baroness, Lady Hamwee, said—I realise that this is a probing amendment—to have the flexibility in the Bill so that it is not the case that, if an order is issued by someone of junior rank, it is automatically supported by someone more senior.
Baroness Hamwee (LD) [V]
My Lords, the amendment has been described as probing, which it was in the sense of my wanting to understand the thinking behind the phraseology in the Bill. A probing amendment can, in the course of a Bill’s various stages, become substantive. The Minister says that the strength of the process is to provide a breathing space. We are not suggesting, in these amendments, that that should not be possible; we are suggesting that it should be a matter of discretion. It occurs to me that not making it discretionary could itself be a deterrent to a notice being issued. The provisions for protection of the victim and for taking the burden away from the victim are not affected by these amendments. I heard what the Minister had to say and we are not going to progress the matter with this toing and froing, so I beg leave to withdraw Amendment 64.
Baroness Hamwee (LD) [V]
My Lords, we support the approach of the amendments. As has been said, they are to be taken seriously; of course, all amendments are, but these not only incorporate theory but reflect practice. The comments of the noble Lord, Lord Blunkett, about positive responses reminded me of how, in this situation as in many others unrelated to domestic abuse, there may be what I understand is called a “teachable moment”, when the person who can or should benefit from some sort of support or assistance is most receptive to it.
As we have made clear, and as I hope is implicit in all our amendments, we believe that the judicial process must be seen to be fair to both parties, otherwise confidence is rapidly lost. Giving a defendant an opportunity to make representations is part of that. I read that as part of the thrust of these amendments to what I think we all regard as very wide provisions. We are pleased that they have been brought forward and supported by such eminent signatories.
Lord Cormack (Con) [V]
My Lords, it is a privilege to take part briefly in a debate led by the noble Lords, Lord Ponsonby and Lord Anderson, and by my noble and learned friend Lord Mackay of Clashfern. I would sum up this debate by saying that we have heard some very wise words. The noble Lord, Lord Blunkett, said that these amendments were logical, rational and humane. He also entered the Covid caveat, and obviously we need a degree of flexibility over timing, bearing in mind the extraordinary overburdening of the justice system at the moment. I cannot help but refer your Lordships to the Times today, which lists the extremely large number of people being drafted in to be judges without any previous experience. We have to bear that in mind—but I endorse the spirit behind the amendments, and I will say no more.
Baroness Hamwee (LD) [V]
My Lords, we are happy again to be working alongside the noble Lord, Lord Ponsonby. We have Amendments 82 and 85 to 88 in this group.
Amendment 82 is about choreography. The noble Lord, Lord Anderson, has just referred to Clause 42, which provides for the variation of orders as well as their discharge, and Clause 36, as has been discussed, provides for their duration. This amendment would establish—I am seeking to avoid the word “probe”—whether the new order under Clause 36(2) could have different provisions from the original. I assume that it could and that there could be variations. Could there be overlapping orders? Again, I assume that is possible, though it would be confusing. Could there be a lacuna—a gap? Obviously an order could end and new abuse give rise to a new order, so could that be an unintended gap? That is unlikely, I guess, because the Bill seems to have been meticulously drafted, but I do want to be sure.
Amendment 85 is one of our most significant amendments. A protection notice may be given by a police officer who
“has reasonable grounds for believing that P has been abusive”
within the meaning of the Bill, and that the notice is necessary. An officer who
“has reasonable grounds for believing”—
the same terminology—that P is in breach of a notice may arrest him, and that leads on to a hearing before the magistrates. The court may make a civil order if it is satisfied, this time “on the balance of probabilities”—that is, the civil standard—that an order is necessary and appropriate.
It is what follows from that which is the subject of Amendment 85. Under Clause 37, P commits an offence if, without reasonable excuse, P fails to comply with the requirement of an order. The penalties are up to five years imprisonment, an unlimited fine or both. Our amendment would require the court to be satisfied “beyond reasonable doubt”—the criminal standard—that P has, without reasonable excuse, failed to comply with the requirement of an order. I am aware that the Stalking Protection Act 2019 is not dissimilar from this Bill in its approach; indeed, there is a good deal of other legislation in the same sort of area and I have no doubt that my noble friend Lord Paddick will refer to it, but that does not allay our concerns.
I hope it will be understood that we are looking at the issue neutrally. The Minister can advise me whether the term “audi alteram partem” is appropriate here. We do not take the side of the perpetrator, but we want to explore what the appropriate burden of proof is when one gets to an order and its breach—and indeed, I have to say, to explore what the standard of proof is, because the law should be both fair and clear. The legislation is silent; no doubt that means that we should understand it. I am sure there is a Latin tag for that as well.
I have assumed that there is no requirement for the criminal standard since nothing is spelled out. When my noble friend and I discussed this with the Minister, it was on the basis of a civil standard, which I think he was also working to, although it was a very rushed discussion. Whatever I am pointed to, I am very uneasy about the application of significant penalties on the basis of the civil standard—or is it the civil standard? The letter dated 26 January that noble Lords received from the noble Baroness, Lady Williams, said:
“Criminal sanctions will only be imposed following a conviction for the breach offence in the criminal court, which would need to be proved to the criminal standard in the usual way.”
That was in correspondence. I do not think it is referred to in the draft guidance that we have seen but, whether it is in correspondence or in guidance, I believe that the legislation should be completely clear.
Amendment 87 is in the same area. It would import “reasonably believes” into an application for a warrant for arrest for a breach under Clause 38, as for a breach of notice under Clause 24, rather than simply the term “considers”.
I turn to Amendment 86. Under Clause 37, for there to be an offence of breach the person must be aware of the existence of an order. The amendment would add that P must be aware of the requirements of the order if he is liable to be convicted of breaching a requirement—for instance, approaching particular premises—because he may be unaware of the requirements. The Minister may tell us that this is implied and that no court would convict if the defendant, or whatever I should be calling him in this situation, were not aware—in which case, of course, why not say so? Or would he say that this would call into question equivalent provisions elsewhere?
Finally, I turn to Amendment 88. Clause 42, to which we have referred, deals with the variation and discharge of orders. The court must hear from a person for whose protection the order was made. That was referred to earlier today as potentially being a burden on that person. We suggest that this should depend on whether the person wishes to be heard; that is the formula that applies to the police here. Are the Government not confident that the court would be able to decide for itself that it was not necessary? Are they not confident that the person may be able to determine this for herself or himself? We accept that a person may be vulnerable and require support or special measures, but it seems a little patronising to deal with the matter in this way. We would like to think that the person’s agency was respected. In fact, the letter from the noble Baroness, Lady Williams, which I have just mentioned, and the Bill recognise this by referring to contempt of court as “an alternative”. Can the Minister tell the Committee what the impact would be of proceeding on the basis of contempt of court? Is this a model used elsewhere, and what is the experience of it?
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
I have had a request to speak after the Minister from the noble Baroness, Lady Hamwee.
Baroness Hamwee (LD) (V)
The Minister’s reply will obviously take some reading, which we will do. As regards the point on contempt, my question was about the experience of the model. I quoted a ministerial letter—not a letter from the noble Lord, Lord Wolfson—about the why, or at least partly why. In any event, I thank him for responding to that.
My question is about the criminal standard for breach of an order. The Minister said that it applied automatically; he then used the phrase, “in the usual way”. When he writes his letter, perhaps he could add a paragraph explaining how it is automatic and where that comes from, so that we can understand its application. He referred to other civil orders and he might want to refer to whether those are silent in legislation as to the standard of proof when breached or whether they deal with the standard explicitly.
Lord Wolfson of Tredegar (Con)
My Lords, I am very grateful to the noble Baroness, Lady Hamwee, for explaining the contempt of court point in more detail and for setting out the question of the standard of proof. I will be happy to include a paragraph on that in my letter as well.