Domestic Abuse Bill

Lord Mackay of Clashfern Excerpts

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

[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.

[Lord Blunkett (Lab) [V]]

My Lords, we are doing very well this afternoon so I will try not to delay your Lordships’ House very long. As the noble Lord, Lord Anderson, said, one of the great advantages of being on the front line as a magistrate at the moment, as in the case of my noble friend Lord Ponsonby, is that you literally have current hands-on experience. One of the burdens you carry as a former Home Secretary—including one who had what is now the justice ministry under that umbrella—is that you ask yourself, “What would I do if I were the Home Secretary today?”

My response would be something like this. The amendments are logical, rational, humane and very difficult to argue with, but the one relating to a five-day timeframe is in the present circumstances unrealistic. We currently have a backlog of 64,000 outstanding cases, including many people on remand. We have a justice system that has been described in this House over recent days as being “justice delayed, justice denied”. I do not think it is realistic to specify five days, although there should be a timeframe within which the response is required in court with the person present.

That leads me to the second element. I want to come back and speak on Amendment 81 but, for now, I will just reflect. When I had responsibility for drugs policy, I was very clear that you needed the consent and commitment of the individual if they were to be offered treatment as opposed to punishment. However, when you offer people a positive road forward and require their genuine commitment to taking that up, you also need a fallback position when they do not do so. I hope that the Minister, when she responds, will be able to reflect on how we might meet the genuine rights of individuals in this case, with the imperative not to be taken for a ride.

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[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.