Domestic Abuse Bill

Lord Anderson of Ipswich Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Tuesday 5th January 2021 Lords Chamber

[Lord Anderson of Ipswich (CB) [V]]

My Lords, when I reviewed the terrorism laws I often used to reflect on domestic violence and abuse. They bear no national security label, but they seem to me to be threats on at least a comparable scale. Domestic violence takes far more innocent lives in this country than the 100 or so who have been killed by terrorism since the turn of the century. I suspect that fear of domestic abuse, just as much as fear of terrorism, conditions the behaviour of huge numbers of people. I therefore welcome this important Bill, while bearing in mind another important lesson from the world of counterterrorism: the further reaching the powers we enact and the more universally welcome they are, the more important it is to examine the attendant safeguards.

I am grateful to the Magistrates’ Association for its briefing on domestic abuse protection orders. Among the practical issues it highlights are whether there should be a statutory maximum time limit on DAPOs, subject to renewal; whether the family courts should be able to impose a domestic abuse perpetrator programme on an alleged offender without any conviction or prior finding of fact; whether it is right to impose positive requirements, such as drug rehabilitation, when there has been no opportunity to find out if the subject will engage with them; and whether there need to be processes to deal with the overlap in jurisdictions of criminal, civil and family courts. Some of these issues will, I am sure, be ironed out in the pilot or in guidance, but we may need to consider whether others should be reflected in the Bill.

Finally, a word about the proposed new offence of non-fatal strangulation. I have studied in detail the March 2016 report of the New Zealand Law Commission, which stated a preference for generic crimes and warned against what it called a slide into a chaotic plethora of specific offences. That was also a strong theme of our own Law Commission report of 2015, Reform of Offences Against the Person. However, the New Zealand Law Commission did accept the case for a new offence of non-fatal strangulation. The case for such an offence is a strong one, for the reasons which the noble Lord, Lord Marks, the noble Baroness, Lady Bull, and others have so ably explained.

However, counterterrorism also teaches us that hurried law can be bad law, and we need to be sure that all the necessary thinking has been done. Would a more generic offence, such as aggravated assault or recklessly endangering life, meet the case? If not, how are strangulation and suffocation to be defined, and should personal connection in the language of the Bill be a condition of the offence or not? What is to be the mens rea, and should there be a statutory defence of consent? What are the sentencing implications? These are issues which the report of the New Zealand Law Commission helps us to address but on which it cannot be the last word in the circumstances prevailing here.

I hate to miss a bus as much as the next person, and this Bill is an inviting, indeed overdue, vehicle. If the Government see merit, as so many of us do, in the amendment in the name of the noble Baroness, Lady Newlove, I hope they will start working constructively on it at the earliest opportunity. Perhaps, if necessary, they will do this with the urgent involvement of the Law Commission so that we can be sure that it will be as effective as it needs to be.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, this might be a sensible point in proceedings to take a short break. I beg to move that the House do now adjourn until 7.15 pm.

Domestic Abuse Bill

Lord Anderson of Ipswich Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Monday 1st February 2021 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I will speak to Amendments 71, 72 and 73. I thank the noble Lord, Lord Anderson, for putting his name to Amendment 71; I thank both him and the noble and learned Lord, Lord Mackay of Clashfern, for putting their names to Amendments 72 and 73.

These amendments as a group look at time limits and prohibitive requirements. Amendment 71 would ensure a maximum timeframe—five working days—within which a contested DAPO made without notice was brought back to court. There may be cases where a particular programme has to be assessed but the police may not know whether it is readily available, and it may take a certain amount of time to get an assessment for a programme. The purpose of this amendment is to put a time limit on that rather than it dragging on for a longer period.

Amendments 72 and 73 address the same issue but from a different perspective: that is, if there is a positive requirement as part of a DAPO, either to go on a course or to go to drug rehabilitation, the person who is to be submitted to the DAPO should agree to go on that course. While I understand that putting negative requirements on alleged perpetrators is something one can do without their permission, positive requirements will have a far greater likelihood of success if, first, they have been assessed and, secondly, the person agrees to go on whatever course it may be. There could be a number of different elements to this. I have mentioned drug and alcohol and domestic abuse courses, but there are also mental health issues with a number of the alleged perpetrators. All this needs to be taken into account, and that is the purpose of this group of amendments. I beg to move.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, I welcome the introduction of DAPOs but believe that, in certain respects, clearer rules are required to ensure that they are used in a practical and proportionate manner. It is in this constructive—I hope—spirit that I have put my name to the amendments in this group.

The potential scope of a DAPO is extraordinarily wide. Under Clause 33, it may include any prohibition or restriction considered necessary to protect a person from the risk of domestic abuse, expressly not limited to what are referred to as the “examples” of non-contact, residence and tagging provisions in subsections (4) to (6). I remind the Committee that even the types of measure that can be imposed on suspected terrorists under the Terrorism Prevention and Investigation Measures Act 2011—TPIMs—are exhaustively spelled out in the Schedule to that Act. They include some measures that one assumes would never be imposed in the context of domestic abuse, but the contrast in approach is striking none the less. With such a powerful and open-ended instrument as the DAPO, it is important that we get the safeguards right.

Of course, it will sometimes be necessary to impose the DAPO without notice. Amendment 71 would ensure that those cases did not fall between the cracks and were brought back to court as soon as practical, and in any event within five days. That matters for the reasons given just now by the noble Lord, Lord Ponsonby, and more broadly because DAPOs are highly personalised and highly intrusive. Without the presence of the person against whom the order is made, no one can be sure that the most effective and appropriate DAPO will have been arrived at first time around. Indeed, Clauses 31 and 34 acknowledge the principle that, if DAPOs are to be effective, they must be suitable and enforceable having regard to such matters as the work and educational commitments of their subjects, any other court orders or injunctions which may apply to them, and the interests of other persons including children.

As to Amendments 72 and 73, I comment only that in my days as a Crown Court recorder, it was axiomatic that one did not impose a positive requirement, such as a drug or alcohol rehabilitation order, or a mental health programme, in the absence of the intended subject of that requirement. These interventions are costly and, if they are to be effective, they require not just the presence but the consent and indeed the commitment of the subject. I have strayed there into Amendment 81, which we will come to shortly.

Self-evident as these matters may be to some, there is an advantage to putting them clearly in statute so that magistrates and their clerks are in no doubt as to the position. The amendments in this group are particularly compelling to me because they are supported by the Magistrates Association and by the noble Lord, Lord Ponsonby, in his capacity as a magistrate with current front-line experience. I hope that the Minister will look favourably on them.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I support all the amendments in this group; I put my name to the ones that I thought were more appropriate for me but I agree with them all. As the noble Lord, Lord Anderson of Ipswich, has said, it is of course true that these amendments are supported by the Magistrates Association. My reason for supporting them, apart from the fact that I am convinced that they are right, is that they come from the Magistrates Association, of which I had the honour to be president for almost 10 years. However, that experience is rather elderly and I am therefore very happy that these amendments are supported by an active, front-line, authoritative magistrate today.

--- Later in debate ---

[Lord Mackay of Clashfern (Con) [V]]

I support these amendments, which are supported by the Magistrates’ Association, because it is very clear that they will have taken the view of a number of experienced magistrates in what they have formulated. It is in the nature of this order that it is an interim order, because it is made on the basis that it will be reconsidered after the representations, if any, that the respondent makes. It is essential that in due course an opportunity is given for that as part of the order. In due course, as we suggested in a previous group of amendments, it will be modified to five days and that is going to happen. Therefore, it is an interim order in its nature, even if it is not called that in these proposals.

It is important to note that this application continuation will take place in a hearing which will normally be extremely short. It will not be in the same set of court cases involving any kind of substantial and long hearing and is not likely to be very much affected by the present situation with regard to criminal cases.

The noble Lord, Lord Blunkett, mentioned being taken for a ride. It is also possible, at least with some of these orders, that a person may be very willing to take it on. I had experience, a long time ago now, of a case in which a young mother in Glasgow undertook to attend a very good programme for dealing with addiction. I am certain that she was determined to go through with it, because it was much better than having a sentence which might involve separation from her child. However, I learned some time after I had made the arrangements with her and got her fervent consent, that she had left the programme. That can happen, not as a deliberate act, but as a consequence of the power of addiction to alter a person’s will at a particular time.

I support these amendments and I am glad that they are supported by an active and leading magistrate who has current experience of these matters.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, I have put my name to Amendments 81, 83 and 84. I addressed Amendment 81 when speaking to Amendments 72 and 73 in the last group. The Minister suggested in response that there were certain circumstances in which it might be appropriate to impose a drugs or alcohol rehabilitation order, or a mental health disposal, without the commitment, consent or even knowledge of the intended subject—at least, I think that is what he said. I should be interested to hear him elaborate on the sort of circumstances he has in mind.

As to the proposal of a statutory time limit in Amendments 83 and 84, I endorse what the noble Lord, Lord Ponsonby, has said from experience about the practice in comparable contexts, and what the Magistrates’ Association has said about the desirability of allowing the court to put in place review hearings if appropriate. I will add one or two further points.

Clause 36(5) recognises that an electronic monitoring requirement should be authorised for no more than 12 months, yet there is no time limit on the other provisions of a DAPO despite their unlimited range. I expect the Minister will refer to the right of a person to apply for the variation or discharge of a DAPO under Clause 42, but that is a haphazard safeguard and one that the Bill itself acknowledges is not sufficient where tagging is concerned. Something more is required, and I suggest that the amendments provide it.

Finally, there also seems to be force in the other amendments in this group. The case for Amendment 86 in particular seems unanswerable. I know from our time together at the Bar that the Minister is more than capable of rising to any occasion, but I hope that in relation to this group he will find at least some of the amendments to be uncontentious.