Victims and Prisoners Bill

Baroness Hamwee Excerpts

Report stage
Tuesday 23rd April 2024 Lords Chamber

[Lord Russell of Liverpool (CB)]

My Lords, this is quite a large group and I will speak briefly on the amendments I have my name to or on which I have something to say.

The first amendment in the group, from the noble Baroness, Lady Brinton, is on free transcripts. What I would ask the Government—I think the answer will be yes—is whether they agree in principle that this is and should be a right of victims: a proportionate right, without exorbitant costs and without needing pages and pages of transcripts. Do they agree that it is a fundamental right for victims to have the essence of what is said in a trial that involves them or their perpetrator, to understand the deliberations and the verdict that the judge and jury have come to, in a form and manner that is helpful to them and that they can use? In the same way that prisoners or perpetrators who have been found guilty go to appeal, the right that they have to access transcripts—quite rightly—is completely disproportionate when compared with the current right of victims to get almost any proceedings from the trials that concern them.

I think we are looking and hoping for an acceptance by the Government that the principle is right, understandable and correct; we are trying to find a practical way of achieving a form for that right to be exercised in a proportionate way for victims. While the RASSO model is a good start, it is clearly quite limited in extent. I will listen very carefully to what the Minister says in reply, and, of course, the noble Baroness, Lady Brinton, will come to her own conclusions about what she decides to do.

Amendment 57, in the name of the noble Baroness, Lady Thornton, is about the duty to collaborate. The Minister may recall that, last week, we spoke about the fact that, if there is not a duty to collaborate, certain agencies will take it upon themselves to interpret statutory guidance in a way that is convenient to them, rather than in a way that is aligned to the requirements of the relevant commissioner.

In particular, I mention the Domestic Abuse Commissioner, Nicole Jacobs. I was able to catch up with Nicole yesterday afternoon—I suspect it was not very long after she ran into the Minister—and we had a discussion. The content of the discussion was that, even if you have statutory guidance that says one should be collaborating, the fact is that some agencies will take that on board in the spirit it is intended and will collaborate, while others will say that they understand in theory that it is very important and should be done but will decide that they have other things that are more important, or that they do not have the time, money or resources to respond. That makes the role of a commissioner extraordinarily difficult.

Data is king. Knowing what is going on is fundamental to interpreting what is and is not working. If you do not have systematic, reliable data from every part of the country, it is very difficult to do one’s job and give sensible advice to the Government. It is hard, frankly, to look victims in the face and say, “We are doing everything we can for you”. Despite the fact that statutory guidance is written down, some agencies are deciding for themselves whether or not to comply. This is clearly unsatisfactory.

I asked the Domestic Abuse Commissioner what she would change, with the benefit of hindsight, about the way in which this was encapsulated in the Domestic Abuse Act and the guidance. She said that it is ultimately about accountability in so many areas; it is about who is ultimately responsible and who will be held to account if something which should be happening is not. At the moment, that is quite unclear. Having 43 different police forces, with police and crime commissioners on top, makes it rather difficult. The commissioner’s instinct was that perhaps one should hold police and crime commissioners’ feet to the fire and make them primarily responsible for ensuring that all the agencies in their jurisdiction take the statutory guidance seriously and comply. If they did not comply, some very awkward questions should then be asked of the police and crime commissioner to find out why.

Another thing that would be helpful is something that we have started to do in the Secondary Legislation Scrutiny Committee. We have a table which lists each department and ranks them by the egregiousness and inadequacies of their Explanatory Memoranda and the idiocy of their impact assessments. We are hoping that this will concentrate minds because, once again, data is king. It is extraordinarily important that one is able to measure what is going on.

I will listen carefully to what the Minister says on this and to the response of the noble Baroness, Lady Thornton. From the well-intended evidence about what we hoped and thought was going to happen in the Domestic Abuse Act, we have a chance to learn from what we thought was going to work well and which is not working so well and to try to do it better this time.

[Baroness Hamwee (LD)]

My Lords, I will say a couple of words on—

[Baroness Humphreys (LD)]

I do not think the noble Lord has finished.

[Baroness Hamwee (LD)]

I am so sorry; I thought that the noble Lord had finished.

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[Baroness Butler-Sloss (CB)]

My Lords, I had not intended to speak on this group but, having heard from the noble Baroness, Lady Benjamin, I want to add my 100% support for what she has just said. As a family judge for something like 35 years, I tried cases of sexual abuse against children. I also happened to do a report on the diocese of Chichester, and I met adult members of that group who had suffered serious sexual abuse. It lasts a lifetime, as the noble Baroness, Lady Benjamin, said. I particularly realised it when I met these young men who had suffered abuse from clergy, I am sad to say—one of whom went to prison and one of whom died before. It lasted years and years. Everything that the noble Baroness, Lady Benjamin, said, is entirely right, and I support it tremendously.

[Baroness Hamwee (LD)]

My Lords, I apologise to the noble Lord, Lord Russell. I was surprised when there seemed to be a hiatus—I had not allowed for his need to draw a breath. He mentioned his conversation this morning with the Domestic Abuse Commissioner. I am not surprised to hear what she said. I recall that, before the Bill even arrived in this House, she was making her views about a duty to collaborate very clear and well known.

I simply wanted to support my noble friend in her amendment on transcripts. I have to say that sitting through most of the Committee and Second Reading of this Bill has really made me reflect on how victims can be treated as almost peripheral to a trial, because inevitably there is a focus on the defendant. It is inevitable because the court is determining guilt or—I was going to say innocence—not guilt. It would never have occurred to me that the availability of a transcript might depend on whether it has to be available to the defendant.

As the noble Lord, Lord Meston, said, this is quite a narrow amendment. The Minister was very clear about the constraints and difficulties. As well as being narrow, this amendment would reduce costs, which we were talking about at the previous stage. It is important that we pursue this.

[Lord Hampton (CB)]

My Lords, I shall speak briefly to Amendment 61, in the name of the noble Lord, Lord Ponsonby of Shulbrede, and Amendments 62 and 71, in the names of the noble Lords, Lord Polak and Lord Russell of Liverpool, and the noble Baroness, Lady Benjamin. In this, as ever, I must declare my interest as a state secondary school teacher.

The great thing about following the noble Baroness, Lady Benjamin, and the noble and learned Baroness, Lady Butler-Sloss, is that it is like somebody doing your homework for you. All the way through this stage of the Bill, we have talked about children as being separate victims, and we got the “Uncle Tom Cobley and all” reason back—in that, if you have to mention one, you have to mention all in this. I think we have to be specific. The noble Lord, Lord Ponsonby, and I went to the Lighthouse child house and saw its model. We saw how, when victims are treated specifically, we can get higher levels of prosecution, better health for them in future and save money in the outcome. Why would you not do that?

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[Baroness Lister of Burtersett (Lab)]

My Lords, I offer some brief words in support of Amendment 96. Like the Domestic Abuse Commissioner, I was very disappointed with the response in Committee, which simply rehashed old arguments that I had already challenged. I have two practical questions. First, the noble Earl, Lord Howe, promised the long-awaited code of practice for parliamentary scrutiny by the spring. It may not feel very spring-like, but spring is passing and there is still no sight of it. Surely it should have been made available in time to inform our debate today. The Minister said it would hopefully be this spring, but he did not sound very sure. Can he give us a firm assurance that it will be made available this spring?

Secondly, whereas I had been told in a Written Answer that the also long-awaited protocol would be published in early 2024, all that the noble Earl, Lord Howe, could say in Committee was that it would be launched “later this year”. How much later? Why the delay?

Finally, I never received an answer to my much more fundamental question: how do the Government square their intransigent position on the firewall supported by the DAC, various parliamentary committees and all organisations on the ground with repeated ministerial assurances that domestic abuse victims/survivors must be treated as victims first and foremost, regardless of immigration status? As it stands, it is a case not of safety before status, as called for by the Domestic Abuse Commissioner, but of status before safety.

[Baroness Hamwee (LD)]

My Lords, I support the amendments to which the noble Baroness, Lady Bertin, has spoken. This was an issue that I came across only when preparing for Second Reading. I do not want to repeat her arguments, and I could not make them as well or as thoroughly as she has, but I was shocked to discover the problems that have arisen in connection with counselling and advice. I also support the firewall amendment from the noble Baroness, Lady Meacher. We have been here before many times, have we not?

Last week the previous Independent Anti-Slavery Commissioner, speaking to the committee reviewing the Modern Slavery Act, raised the interesting position of one law enforcement sector withholding information from, or not sharing information with, another law enforcement sector. She came to her conclusion, but I did not read her as having reached it entirely easily. I reached the conclusion that there should be a firewall for the reason put forward by the noble Baroness, Lady Meacher: imbalance of power—that is what it is about—between a victim and somebody to whom material is made available for abuse. These are very vulnerable victims. I have circled words such as “later this year” and so on, which the noble Baroness, Lady Lister, mentioned. I will not repeat them, but it would be good to make some progress on this issue.

[Baroness Brinton (LD)]

My Lords, my honourable friend Layla Moran laid an amendment about the ending of non-disclosure agreements that prevent victims disclosing information to the police or other services, including confidential support services, ensuring that they cannot be legally enforced. She has campaigned on this issue for some considerable time. She and I both thank the Minister for the progress in Amendment 76, which is undoubtedly a step in the right direction. It certainly will help some victims access the support they need, but we on these Benches regret that this is not enough to fully give victims their voice back. We still need a complete ban on the use of non-disclosure agreements in cases of sexual misconduct, harassment and bullying to ensure that no victim is ever silenced. We will campaign on this in future but appreciate the step forward that has been made in this Bill.

I have signed Amendments 87, 88, 89 and 94 from the noble Baroness, Lady Bertin. I also thank the Minister for the meetings, his Amendment 76 and what he said in introduction—I agree with the response by the noble Baroness, Lady Bertin. The noble Baroness, Lady Morgan of Cotes, talked about third-party data requests, and again it was a privilege to be involved in those meetings. I thank her for her comments and her remaining concerns. She is absolutely right that it does not take us further forward enough.

Finally, I signed Amendment 96 from the noble Baroness, Lady Meacher, on the immigration firewall. My noble friend Lady Hamwee was absolutely right: we have been here before. I was just thinking about amendments during the passage of the Illegal Migration Bill, the safety of Rwanda Bill and, I suspect, the Nationality and Borders Bill before that—yet we are not making progress. It is very unfortunate that the Government have gone backwards since the Modern Slavery Act in the protection of these particular victims. I know that across the House we will continue to push for ensuring that the loophole is closed.

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[Baroness Hamwee (LD)]

My noble friend Lord Marks of Henley-on-Thames wanted to speak to these two amendments but is unable to be here today, for which he apologises.

In Committee, the Government’s position, which was entirely sympathetic in principle—the noble Earl is rarely unsympathetic—was that the Law Commission is going to consider this in any event, so we should wait for it to do so before pressing the matter further. However, my noble friend says that that is not good enough. There is no reason for a further report before proceeding with the provision of free legal representation and advice for rape victims. If we wait for the Law Commission then there will have to be a further consultation, but that is not necessary—Liberal Democrats do not say that consultations are not necessary lightly—and then there has to be the process of producing a report and then, finally, a Bill. All in all, that is a long delay on an issue on which the principle is uncomplicated and, in any event, conceded. We support these two amendments.

[Earl Howe (Con)]

My Lords, I am grateful to the noble Lord, Lord Ponsonby, and, in her absence, the noble Baroness, Lady Thornton, for Amendments 77 and 78, which, as we have heard, seek to require the development of proposals for schemes to give victims of rape access to free independent legal advice and representation.

I agree that it is extremely important that victims are aware of their rights and confident in those rights, particularly when preparing for trial and when requests for their personal information are made. While it would be novel to provide access to free legal advice and representation for just one type of crime, we recognise that, if there is one category of people who are especially vulnerable, it is victims of rape and sexual offences. We also recognise that victims of these crimes are more likely to receive requests for sensitive personal information as part of an investigation, and that there are calls for independent legal advice to help victims with that situation as well.

That is why the Bill tackles the problem in a different way, by introducing measures designed to minimise requests for information, as my noble and learned friend Lord Bellamy explained in the previous group of amendments. Through the Bill we are placing a new statutory duty on the police to request third-party material relating to victims only when necessary, proportionate and relevant to a reasonable line of inquiry. Following the amendments tabled by my noble friend Lady Bertin, which the Government have accepted, there will also be a requirement that the Requests for Victim Information code of practice must state that the police and other law enforcement agencies should start an investigation with the presumption that requests for counselling notes are not necessary or proportionate.

My noble friend’s amendments also mandate that counselling notes can be requested by police only if they are likely to have “substantial probative value” to a reasonable line of inquiry. This higher threshold will ensure that police are not routinely requesting counselling notes and that the privacy of these victims is respected.

As I have said, we do not want to create a hierarchy of support by granting government-funded legal advice to victims of just one type of crime. Alongside that, there are some complex and sensitive considerations regarding the introduction of independent legal advice for such victims. In particular, we have to be mindful of the role of the victim as a witness in proceedings and avoid anything that might have an unintended impact on the defendant’s right to a fair trial. This concern emerged very explicitly from the pilot scheme run in the north of England. I direct that point particularly to the noble Baroness, Lady Hamwee, and, in his absence, the noble Lord, Lord Marks; we need to take account of the findings from that pilot, which expressed those concerns. A subsidiary but still important point is to consider the potential impact on timeliness as a result of another process being inserted into the system. That was another concern that arose in the pilot.

These are all far-reaching considerations which, I suggest, require expert input before any statutory measures are considered. The Law Commission’s review will consider all these factors, including—the noble Lord, Lord Ponsonby, may like to note—the impact of existing schemes in other jurisdictions. When it publishes its report later this year, its findings and recommendations on independent legal advice will provide us with the robust evidence base that we will need should we wish to go forward and develop the sort of policy proposals that the amendment points us towards. Therefore, it is right for us to wait for those findings.

There is a further point of principle which I ought to flag: it really is not appropriate to place a duty on the Secretary of State in primary legislation to develop policy, especially without any specification of what such proposals should entail and who is responsible for implementing them once they have been developed. Once again, it is much better that we await the Law Commission’s recommendations.

I know how important this issue is to noble Lords opposite, but I hope that I have given the noble Lord, Lord Ponsonby, sufficient pause as regards his original intention to divide the House. There are some good reasons why the amendments should not be pressed, which I hope I have been able persuade him of. I therefore very much hope that he will withdraw Amendment 77 and not move Amendment 78.