Domestic Abuse Bill

Lord Paddick Excerpts

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 8th February 2021 Lords Chamber

[Baroness Bertin (Con) [V]]

My Lords, as a member of the Joint Committee that undertook pre-legislative scrutiny of the draft domestic abuse Bill, I know that the extraterritorial jurisdiction provisions of the Bill are intended to fulfil the UK’s obligations under Article 44 of the Istanbul convention. I welcome the fact that these provisions will bring the UK closer to ratifying a convention that we signed in 2012 and which will protect women and girls from violence and abuse.

My amendments concern a very specific issue—marital rape—where I believe the Bill as presently drafted may leave a potential loophole. I recognise that the drafting of the amendments may itself be imperfect, and my noble friend the Minister will no doubt speak to that, but I would like to explore whether the Bill could be strengthened so that people from this country cannot exploit laxer laws elsewhere.

In this country, the common-law presumption of a marital exemption from the offence of rape was overturned by your Lordships’ House in the case of R v R in 1991. Some countries similarly do not have any exemption for marital rape, and in others marital rape is explicitly criminalised, but there is a small minority of countries in which marital rape is not illegal. As drafted, the Bill appears to require that a prosecution for rape and other sexual offences committed against adult victims outside the UK may be brought in the UK only when the offending behaviour is also an offence in the country where it happens, but that requirement could prevent us prosecuting someone for marital rape committed outside the UK, if such behaviour is not included in or is exempt from the equivalent offence in the other jurisdiction.

This may be a small gap. I certainly hope that there would not be many, if any, cases of marital rape perpetrated by a UK person in a country that does not consider such behaviour to be a crime, but I believe that, if there is potential for this to occur, we should act to prevent it. I beg to move.

[Lord Paddick (LD) [V]]

My Lords, Section 72 of the Sexual Offences Act 2003 makes it an offence, in England and Wales, for a UK national or resident to commit sexual offences against children outside the UK, in an effort to clamp down on so-called sex tourism. Paragraph 2 of Schedule 2 to this Bill makes it an offence, in England and Wales, for a UK national or resident to commit sexual offences, under Sections 1 to 4 of the Sexual Offences Act 2003, against people aged 18 or over at the time of the offence, extending extraterritoriality to serious sexual offences against adults as well as children.

As the noble Baroness, Lady Bertin, has explained, the idea is to ensure that the Government comply with the Istanbul convention but, as she pointed out, for somebody to commit an offence, it has to be an offence not only in this country but in the country where the offence took place; in some of those countries, marital rape may not be criminalised. Therefore, I believe that the noble Baroness, Lady Bertin, has identified a potential loophole. I look forward to hearing what the Minister has to say in response.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, I thank the noble Baroness, Lady Bertin, for tabling these amendments and spotting this loophole in the Bill. It is good to have this debate today. As she has said, marital rape can happen in a country where it is not illegal locally, and we would then not be able to prosecute the offence here in the UK. Nobody in this Committee wants that situation. I hope the Government will confirm that they either accept her amendments, or accept that she has identified a very serious loophole and bring in their own amendments on Report.

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[Baroness Donaghy (Lab) [V]]

I am very pleased to support the amendment in the name of the noble Lord, Lord Russell. Members may have seen recent reports in the media covering the experience of elite female athletes being subject to harassment and intimidation when doing training runs in the street. They cannot go to their athletic tracks to train at the moment because of lockdown. As has been said, this is not about wolf-whistling; it is about violence and harassment, mainly against women. If those athletes were competing in an Olympic stadium, they would be cheered to the rafters for their success, but because they are training on the streets and are anonymous, somehow they are objectified and are easy prey.

During White Ribbon Week, I asked the Minister to accept the two year-old Law Commission’s report recommending that misogyny be made a hate crime. This is now a matter of increasing urgency. The police forces that have been adopting policies to record gender hate crimes are to be congratulated, but this needs to be adopted generally. Superintendent Andy Bennett of Avon and Somerset Police said:

“We know women are less likely to report hate crime committed by strangers in public, which could be because discrimination is normalised for many women.”


As the noble Lord, Lord Russell, said, Nottinghamshire Police was the first force in England and Wales to start recording hate crimes against women and girls. Sue Fish, the former chief constable of Nottinghamshire Police, said:

“Some of the feedback we had was that women, for the first time, described themselves as ‘walking taller’ and with their ‘heads held high’.”


According to the White Ribbon Campaign, one in five British men thinks that feminism has gone “too far”. Online misogyny can also be a gateway to wider divisions in society. A HOPE not hate report shows that some young men who interact with men’s rights activists online are on the first step to more extreme racist or far-right groups and regard more rights for anyone—such as people of colour, the LGBT community and people with disabilities—as a threat to their status. The chief executive of HOPE not hate supports this amendment. He states that misogyny is a recruiting tool for hate groups and a means to radicalise, especially among the very young. These online groups radicalise young men who go on to commit acts of aggression designed to intimidate, humiliate and control women.

Having better-quality information throughout all police forces is not just another paper exercise. It helps to increase understanding of the causes and consequences of violence against women and girls, and it gives women more confidence that their issue will be taken seriously. It may even go on to protect more women from violence and intimidation. I hope that the Minister will accept this amendment.

[Lord Paddick (LD) [V]]

My Lords, this afternoon, many noble Lords have described misogyny outside the scenario of domestic abuse—such as elite athletes training in the street, as the noble Baroness, Lady Donaghy, just said. I hope to explain that, while I agree that the recording of misogyny as a hate crime is a good thing, it may confuse things when it comes to domestic abuse.

As has been explained, Clause 70 requires the Secretary of State to

“issue guidance to chief officers of police about the disclosure of police information by police forces for the purposes of preventing domestic abuse.”

This amendment is about including in that guidance that the police should record any crimes where the offender demonstrated hostility or prejudice based on sex, or where it is perceived that the crime was motivated by hostility or prejudice towards persons who are of a particular sex. This, in effect, would require police officers to record misogyny as a hate crime, although as it is worded in gender-neutral terms it would also require them to record misandry as a hate crime. I am confused about why misandry would be a hate crime, but we will move on. It then tries to bring this within the scope of Clause 70, which is about preventing domestic abuse, by mentioning taking account of evidence about the relationship between domestic abuse and misogyny and recording misogynistic crimes that, in the opinion of the police, have also involved domestic abuse.

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[Lord Paddick (LD) [V]]

My Lords, this has been a comprehensive debate. As noble Lords have explained, Amendment 148 would insert a new clause to ensure that those whose immigration status would exclude them from benefits and the right to rent can receive support and find a place to live if they are the victim of domestic abuse in circumstances that would otherwise leave them destitute and homeless. It sets out clearly what evidence must be produced to show they are a victim of domestic abuse.

As noble Lord, Lord Rosser, explained, abusers use survivors’ immigration status as a means of coercive control. As noble Lords have said, no one should be prevented from escaping domestic abuse because they cannot afford to leave or because they have nowhere to go, not least those who are additionally vulnerable because of their immigration status. Amendment 151, led by the right reverend Prelate the Bishop of Gloucester, requires the Secretary of State to make changes to the Immigration Rules to extend the number of victims of domestic abuse who can apply for, and be granted, indefinite leave to remain. It proposes that they should be granted limited leave to remain for not less than six months to enable this, or longer if the application is awaiting a decision, including access to support and accommodation during that time. As noble Lords have said, it is likely that victims of domestic abuse could be in danger were they to be forced to return to their country of origin, as the example graphically described by the right reverend Prelate demonstrated. As the noble Baroness, Lady Lister of Burtersett, has said, while the current pilot is welcome, it is not necessary. We know all we need to know to take the issue forward—a point reinforced by the noble Lord, Lord Hunt of Kings Heath.

As the noble Baroness, Lady Helic, and my noble friend Lady Hussein-Ece have explained, Amendment 160 gives effect to Article 4(3) of the Council of Europe convention on preventing and combating violence against women and domestic violence—the Istanbul convention—that requires all victims of domestic abuse, irrespective of their status, to receive equal protection against domestic abuse and equally effective support and, as such, encapsulates the essence of Amendments 148 and 151. Indeed, as the noble Lord, Lord Griffiths of Burry Port, has said, if Amendments 148 and 151 were agreed to, we could ratify the Istanbul convention. As he said, either this is a landmark Bill, or it is not. I agree with the noble Lord: this all comes down to money—money that the Government appear to be unwilling to spend.

It is concerning that the Home Office has responsibility both for providing support for domestic abuse survivors and for enforcing immigration legislation. With only 5.8% of refuge places available to survivors who have no access to public funds, as the noble Lord, Lord Russell, has said, something clearly needs to be done. With those affected numbering in the low thousands, it would not take much to implement these recommendations, and we support them. As my noble friend Lady Hamwee said, failing to take action would make it feel as though the state were complicit in these women’s suffering.

[Baroness Williams of Trafford (Con)]

My Lords, the amendments in this group centre on support for migrant victims of domestic abuse. I am grateful to the noble Lord, Lord Rosser, the right reverend Prelate the Bishop of Gloucester and my noble friend Lady Helic for proposing the new clauses.

All Members of the Committee will share the view that anyone who has suffered abuse, regardless of their immigration status, should first and foremost be treated as a victim. Where we differ, perhaps, is on how support is best provided to meet that end. Amendments 148 and 151 seek to provide, for all migrant victims of domestic abuse, at least six months of leave to remain, a route to indefinite leave to remain and access to publicly funded support. Amendment 160 seeks equally effective protection and support for all victims of domestic abuse, irrespective of their status, while also referring to Article 4(3) of the Istanbul convention.

If I have correctly understood noble Lords’ objectives in tabling these very thoughtful and well-intentioned amendments, they are seeking to expand the existing destitute domestic violence concession and the domestic violence rule to cover all migrant victims of domestic abuse: to place the DDVC in the Immigration Rules, as well as lifting immigration restrictions, for any migrant victim of domestic abuse. The Joint Committee on the Draft Domestic Abuse Bill recommended that the Government consider similar changes to the DDVC and DVILR. However, its recommendations did not include proposals to incorporate the DDVC scheme in the Immigration Rules.

As noble Lords will be aware, in response to the Joint Committee’s recommendations the Government committed to a review of the overall response to migrant victims of domestic abuse. That review has been completed and its findings were published on 3 July 2020. We were grateful to the specialist sector for the views and evidence provided during the review. However, it was unclear which groups of migrants are likely to be most in need of support, how well existing arrangements may address their needs, how long they might need support, and how they could be supported to move on from safe accommodation. It was clear, however, that a robust evidence base is needed to ensure that funding is appropriately targeted to meet the needs of migrant victims.

My issue with Amendment 151 is that it is based on a misunderstanding of the rationale for the DDVC and the domestic violence rule. Both were, and are, intended to provide a route to settlement for migrant victims who hold spousal visas. The system was designed in this way because, had their relationships not broken down as a result of domestic abuse, these victims would have had a legitimate expectation of staying in the UK permanently. Neither the DDVC nor the domestic violence rule was designed to support those without this legitimate expectation. This Government are concerned that expanding the scope of both would undermine the specific purpose that gave rise to them and introduce a route to settlement that might lead to more exploitation of our immigration system—or indeed of vulnerable migrants.

For this reason, at Second Reading in the House of Commons, the Safeguarding Minister announced that the Government would invite bids for grants from the £1.5 million support for migrant victims scheme. Such grants will look to cover the cost of support in a refuge or other safe accommodation for migrant victims of domestic abuse who are unable to access public funds. The Government will use the scheme to better assess the level of need for these victims and inform spending reviews about longer-term funding, which is very important. The competition for the scheme was launched on 15 December and closes on 8 February—today. The scheme will then run until 22 March, which answers the question from the noble Baroness, Lady Hamwee.

As I have indicated, our review has highlighted that a better evidence base is needed for migrant victims who are not eligible for the DDVC. Since 2017, the Government have provided over £1 million from the tampon tax fund to support migrant victims with no recourse to public funds. While clearly this fund has helped to deliver much-needed support for a number of individuals, and much has been learned, regrettably we require a more complete and reliable evidence base to enable us to make those long-term decisions. We particularly want to establish a robust dataset that we can interrogate about the circumstances in which support is most needed, the duration of support needed, what kind of support works best, and how individuals exit from support to regain their independence. We would like to do this work to ensure that the information that we need is available to inform future policy-making and that the decisions taken are sound.

I turn to Amendment 160. The support for migrant victims scheme and the associated evaluation work clearly illustrate that the Secretary of State is taking steps to ensure effective protection and support for all victims of domestic abuse. This scheme will be available to all migrant victims at the point of need while their eligibility for the scheme is assessed and other routes of support are explored.

The Government have been clear that migrant victims of domestic abuse should be treated first and foremost as victims, as the noble Baroness, Lady Hussein-Ece, and others, said. Data collected through the course of this scheme will provide the information that we need to assess current provisions and ensure that effective protection and support is available to migrant victims of domestic abuse. Therefore, while I am grateful to my noble friend and appreciate the sentiment and intention behind her amendment, we do not believe that this is necessary in light of the action that we are already taking. The provisions in the Bill apply equally to all victims of domestic abuse, whatever their status, including the ability to apply for a domestic abuse protection order or the provisions in respect of special measures and the prohibition of cross-examination in person.

A number of noble Lords, including my noble friend Lady Helic and the noble Lords, Lord Hunt of Kings Health and Lord Griffiths, have talked about the Istanbul convention. It is important to recognise that legislation is not needed to comply with Articles 4 and 59 of the convention. As set out in the latest annual report on our progress towards ratification of the convention, which was published on 22 October last year, the position on whether the UK is compliant with Article 4(3) of the convention to the extent that it relates to non-discrimination on the grounds of migrant or refugee status, and with Article 59, relating to residence status, is of course under review, pending the evaluation and the findings from the support for migrant victims scheme.

On the suggestion in Amendment 148 that the no recourse to public funds condition is lifted for all victims of domestic abuse, the Government believe that this is the wrong response. It is not subject to further definition in any way and would be a disproportionate and costly method of providing support for migrant victims. It is worth recognising that the principle of no recourse to public funds was established as far back as 1971, and no Government have sought to reverse that position. Successive Governments have taken the view that access to publicly funded benefits and services should reflect the strength of a migrant’s connections to the UK and, in the main, become available to migrants only when they have settled here.

These restrictions are an important plank of immigration policy, operated, as I have said, by successive Governments and applicable to most migrants until they qualify for indefinite leave to remain. The policy is designed to assure the public that controlled immigration brings real benefits to the UK, rather than costs to the public purse. It does this by prohibiting access to public funds other than to those with indefinite leave to remain, refugees and protected persons, and those granted discretionary leave.

Nevertheless, exemptions from those restrictions are already in place for some groups of migrants. These include refugees or those here on the basis of their human rights where they would otherwise be destitute. Those on human rights routes can also apply to have their no recourse to public funds condition lifted if their financial circumstances change and there is a risk of destitution, imminent destitution, risk to the welfare of a child or exceptional circumstances. Equally, as I have said, migrant victims on certain spousal visas can already apply for the destitute domestic violence concession to be granted limited leave with recourse to public funds.

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[Lord Paddick (LD) [V]]

My Lords, I thank the noble Baroness, Lady Lister of Burtersett, for so clearly and comprehensively introducing her amendment. Amendment 149 would insert a new clause that seeks to extend the protection from any coercive and controlling behaviour that occurs post-separation. The noble Baroness concentrated on economic abuse, but that is not the only form of ongoing abuse.

I was in a relationship that became increasingly abusive over a period of five years. The first time I noticed something was happening was when a friend, a former partner, sent me a birthday card. When I explained who it was from, my then partner tore it up and threw it in the bin. His controlling and coercive behaviour continued and got worse, and he eventually resorted to physical violence. When we split up, he threatened to kill me and threatened to write to my employer to try to destroy my career. I continued to live in fear of what he might do until, 18 months after we had split up, he colluded with a Sunday tabloid newspaper to expose intimate details of our private life, including making public my HIV status, as well as making false allegations that the newspaper eventually admitted were libellous. Fighting the issue in the courts would have resulted in me losing everything if I had lost that case. His actions did not amount to harassment or stalking.

Coercive and controlling behaviour can continue long after separation, with victims of domestic abuse continuing to live in fear of what the perpetrator might do next, and the law needs to reflect this. Section 76 of the Serious Crime Act 2015 applies only if the perpetrator and victim are in an intimate relationship or if they live together. This amendment would ensure that it would apply to all those who are “personally connected” as defined by Clause 2 of this Bill, whether they live together or not. As such, it would also include the circumstances that Amendment 157 seeks to cover, where a relative is exerting controlling or coercive behaviour, whether or not they live together.

As the noble Lord, Lord Hunt of Kings Heath, explained, his amendment is specifically aimed at protecting older and disabled family members. I strongly support Amendment 149 and welcome the focus which Amendment 157 brings to the abuse of older and disabled family members.

[Baroness Bertin (Con) [V]]

My Lords, it is an honour to follow the noble Lord, Lord Paddick, in this important debate; he speaks movingly and powerfully on this issue. I support Amendment 157, for which the noble Lord, Lord Hunt set out the argument very well, but I will speak primarily in support of Amendment 149, tabled by the noble Baroness, Lady Lister, to which I have also put my name. I also wish to thank her for all of her work in this area, and for eloquently speaking to this amendment, setting out in forensic detail why it is needed.

David Challen, son of Sally Challen, wrote movingly today in the Times. He said that leaving an abuser can be the most defining moment of a victim’s life. The fear of what will happen when they separate from their abuser is often overcome by an instinct of survival and the hope that they will be protected. However, as the law stands on coercive and controlling behaviour, victims who leave are not protected.

It is obvious that coercive control does not end when a relationship does and that very often the exact opposite happens, and the abuse escalates. As many noble Lords have said, this is particularly true of economic abuse, which does not require physical proximity to perpetrate, but can have a crippling effect on victims as their abuser seeks to make their life as hard and as financially unstable as possible. We also need to remember how often children are caught up in the continuation of this kind of abuse, with child maintenance very often being turned off and on like a tap. It is therefore absolutely right that the definition of domestic abuse in this Bill will include economic abuse and also recognises that the abuse can continue when the couple split up. We now need to take this opportunity, as others have said, to amend the Serious Crime Act 2015 to bring coercive control in line with the far better drafting of this Bill.

Not accounting for post-separation abuse is a serious shortcoming of the offence. Given that separation, as we have heard from other noble Lords, is a time at which women are at heightened risk of homicide, this shortcoming is dangerous, too. The Government made the point that existing legislation on stalking and harassment already addresses post-separation abuse. Like others, I absolutely do not accept that. These crimes are not the same and to suggest otherwise shows a lack of understanding about all these offences. I also do not believe that the Government’s outstanding report on controlling and coercive behaviour should stand in the way of this vital opportunity before us.

If the law on coercive control stays as it is, what kind of signal do we send to victims? It is this: “Stay put and we can charge him, but if you leave, we can’t touch him.” This makes no sense at all and must change. Failing to recognise that these abusive behaviours can occur post separation creates a dangerous gap in our understanding of this crime and would leave too many victims without the proper justice they deserve.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I have tabled this probing amendment because I am trying to address the woeful underprosecution of domestic abuse and domestic violence in our courts. I do not think that the courts are quite set up to secure justice for survivors. Part of the problem is the intrusive nature of court into the survivors’ lives. The nature of domestic abuse means that deep and intimate details of a survivor’s life and their abuse can be exposed to the public eye. These intimate details can be exploited by the tabloid press or be the subject of trolling on social media. The higher the profile of the abuser or survivor or the more extreme the abuse, the more likely they are to face that media circus.

This should not be happening. Intrusion into survivors’ lives has to stop; they are revictimised and exploited by this publicity, which is incredibly damaging. Other survivors see this and it makes them less likely to report crimes that have been committed against them. It forces people to maintain secrecy for fear of becoming the latest victim of a media circus.

The courts are not currently set up to help survivors avoid this media chaos. There is scope for a survivor to seek a reporting restriction, but this is limited to situations where the restriction would help improve the quality of evidence or the level of co-operation given by a witness in preparing the case. This is not necessarily a survivor-focused approach; it is actually focused on helping the court to have the best available evidence, rather than the rights and protections of survivors. I hope that the Government will work with me to improve this. There must be some way to find agreement on the need to protect survivors, while allowing them to tell their story and obtain justice. I beg to move.

[Lord Paddick (LD) [V]]

My Lords, I thank the noble Baroness, Lady Jones of Moulsecoomb, for introducing this amendment. The openness of judicial proceedings is a fundamental principle enshrined in Article 6(1) of the European Convention on Human Rights. This underpins the requirement for a prosecution witness, including the victim, to be identifiable not only to the defendant but to the open court. It supports the defendant’s ability to present his case and to test the prosecution case by cross-examination. In some cases, it can encourage other witnesses to come forward, particularly if the victim has made false allegations in the past.

However, the principle of open justice can sometimes be a bar to successful prosecutions, and we know that domestic abuse survivors are less likely to report abuse if their name is going to appear in the press as a result. I speak from personal experience again. When I was a victim of domestic abuse, I was not prepared even to report my abuser to the police out of shame and fear that it might become public knowledge.