Domestic Abuse Bill

Lord Parkinson of Whitley Bay Excerpts

Report stage
Wednesday 10th March 2021 Lords Chamber

Amendment 45 agreed.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, we have completed scrutiny of 10 groups of amendments and have a further seven to cover today, so I suggest that this might be a sensible moment for a short break.

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It is not one size fits all, which was a concern expressed by the noble Baroness, Lady Fox of Buckley. This is very much about looking at the evidence in a particular case and creating a nexus between the history of abuse and the compelling of someone to commit a crime. The question will arise: what is wrong with duress? Is duress not a defence in law? I should say that duress rarely avails itself to any defendant because it sets such a high bar. It is particularly hard for women who have been abused. Again, the tests are unsuitable for this situation because, of course, they turn on questions such as, “Was the threat such that it would overbear the will of an ordinary person?” There is also what used to be called the reasonable man test, although we now call it the reasonable person test, as though that cancels out the problems. However, it does not do that because you have to weave in aspects of the woman’s experience. The threat must be of death or of serious harm. The question is asked, “Did he actually say that he was going to kill you if you did not hide his gun?” But he does not have to say the words because she will know that that threat was persistent while they were living together.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am sorry to interrupt the noble Baroness. I appreciate that she has three amendments to introduce—

[Baroness Kennedy of The Shaws (Lab) [V]]

The third one does not count.

[Lord Parkinson of Whitley Bay (Con)]

She has taken 20 minutes to do so already and the House is keen to debate the amendments she is putting forward. If she could do so briefly, it will give noble Lords the opportunity to do just that.

[Baroness Kennedy of The Shaws (Lab) [V]]

I feel that that was unnecessary, but I was coming to my conclusion anyway. There must be a causal link between the threat and the decision of the defendant to break the law, and that is a high bar. I strongly urge the House to support this new statutory defence for women who are compelled to commit crimes so that they can put it before the court where it can be tested and measured evidentially. If it passes the test, she can be acquitted.

Amendment 66 is a list of the offences to which this would not apply because of their gravity. I hope that the Crown does not think that there are two kinds of victims: those who are somehow deserving and those who are undeserving. The end of the road is when women are forced to do things that take them into the criminal ambit because of a history of abuse. I beg to move.

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[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful to the noble Lord, Lord Marks of Henley-on-Thames, and all other noble Lords who have supported this amendment, for again setting out the case for it. The amendment seeks to create an offence of controlling or coercive behaviour for psychotherapists and counsellors providing services to clients.

Amendment 52 seeks, in effect, to replicate the coercive or controlling behaviour offence under Section 76 of the Serious Crime Act 2015. This offence was created to close a gap in legislation regarding patterns of coercive or controlling behaviour in a domestic abuse context; that is, during a relationship between intimate partners, former partners or family members. As such, the offence applies only to those who are “personally connected” as defined within Section 76 of the 2015 Act. The amendment would extend the offence beyond those who are personally connected as defined by that Act so that it applied to psychotherapists and counsellors.

In Committee, and again today, the noble Lord, Lord Marks, and others have strongly made the point that unregulated and fraudulent psychotherapists are able to take advantage of their clients’ vulnerability by supplanting parents and families in the affections and minds of their clients, with the purpose of turning them against their friends and families through a process called transference. The noble Lord has suggested that this abuse should be caught by the controlling or coercive behaviour offence because therapists are abusing their position of trust and the dependence of their clients.

As my noble and learned friend Lord Garnier noted, we have had a number of debates on this issue and on the importance—in the Government’s submission—of preserving the meaning of “personally connected” in relation to domestic abuse, both in this Bill and, by extension, for the purposes of the Section 76 offence. The Government recognise that noble Lords have raised an important issue and have made some spirited and cogent arguments in favour of doing something now. However, we still feel it is important to acknowledge that domestic abuse, including controlling or coercive behaviour, is a unique type of abuse underpinned by an emotional and affectionate bond between the victim and the perpetrator, as well as a complex power dynamic. The paid-for or commercial nature of the psychotherapist-client relationship represents a fundamentally different power dynamic from that of domestic abuse. In answer to the noble Lord, Lord Marks, my noble and learned friend Lord Garnier and others, that is why we do not believe that it is appropriate to replicate the Section 76 offence in other contexts such as this. I am grateful to the noble Lord, Lord Kennedy of Southwark, for recognising that this might not be the right Bill in which to do it.

As I mentioned in Committee, this is a matter for consideration by the Department of Health and Social Care. I am pleased that a number of noble Lords who have spoken in Committee and again tonight had the opportunity to discuss it in more detail with my noble friend Lady Penn, on behalf of that department, and with me. I am glad they found the discussion productive, as we did. I am grateful to those noble Lords for their time and engagement with us and with officials from both the Home Office and the Department of Health and Social Care.

As noble Lords noted, there is at present a system of accredited voluntary registration by the Professional Standards Authority for Health and Social Care. The authority has a process for quality-assuring voluntary registers of health and care professionals in the UK who are not subject to statutory regulation. It currently accredits 10 voluntary registers relating to counselling and psychotherapy, providing assurance to the public in relation to around 50,000 talking therapy professionals. These registers should be used by service users to choose a practitioner to meet their needs and to be assured that they are safe, trustworthy and competent to practise. To gain accreditation from the authority, organisations must meet 11 standards for accredited registers. I set those out in Committee so will not do that again now, but any registrant who is removed from an accredited register for conduct reasons cannot join another accredited register.

I recognise that these registers are voluntary, as a number of noble Lords have pointed out, but they provide assurance that practitioners who are on the registers are safe, trustworthy and competent. The noble Baroness, Lady Mallalieu, is right that more can be done in this area, and the Department of Health and Social Care is working with the Professional Standards Authority to improve awareness of the accredited registers programme and to encourage service users and providers—people such as GPs, as she says—to seek out the services of practitioners on an accredited register rather than unregistered individuals.

The Government are committed to a proportionate system of safeguards for the professionals who work in the health and care system, and from time to time we bring new professions into regulation. It is important that decisions to regulate a profession are evidence-based and consider the risks posed by the profession in the round, not just the risks posed by unscrupulous practitioners. The Professional Standards Authority has developed its “right-touch assurance” tool with the aim of providing advice on how best to regulate different groups in health and care. Where the Government are satisfied that the conditions for regulation of a profession are met, that can be taken forward through secondary legislation using powers in the Health Act 1999, a point that, as noble Lords mentioned today, we have explored in our helpful discussions since Committee.

The Department of Health and Social Care is currently conducting a programme of work to reform the professional regulation framework for healthcare professionals. That will provide an opportunity to consider whether the professions protected in law are the right ones and to ensure that the level of regulatory oversight is proportionate to the risks to the public.

I am conscious, as the noble Lord, Lord Alderdice, set out in his contribution, that this is an issue that has been around for a very long time—since 1971, in some form—and he has been working on it for many years. I hope that reassurance and the points that have been raised, both in these debates and in our meeting since Committee, will be fed into that work. Perhaps this will provide further reassurance: as a couple of noble Lords have alluded to, one person who spoke in Committee but is not speaking today is my noble friend Lady Finn. If nothing else, I hope noble Lords will note that they have another person on the government side who is fully sighted on these issues.

The noble Lords who have spoken in favour of the amendment have once again underlined this important issue, but I hope they will accept why we believe this is not the appropriate Bill in which to pursue the regulation of psychotherapists and counsellors. I have no doubt that they will take the further opportunity to debate this issue soon in the context of Department of Health-led legislation and, moreover, as I have indicated, the issue of regulation can be considered afresh in the context of the forthcoming review of the regulation of healthcare professionals.

The noble Lord, Lord Kennedy of Southwark, spoke of a pathway. It may not have as many paving stones as noble Lords might wish but I hope that they can discern one, and that on that basis the noble Lord, Lord Marks, will be content to withdraw his amendment.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, it is late in the evening and I shall be brief. We have heard a detailed argument from the noble and learned Lord, Lord Garnier, and my noble friend Lord Alderdice as to why this amendment fits so clearly within the ambit of the Bill. From my noble friend Lord Alderdice we also heard how close is the link between therapy and domestic abuse, and from all around the House we have heard how overdue this measure is and that it is not a recent problem that we are seeking to address.

It is also significant that this amendment attracts support from doctors and lawyers and Members of your Lordships’ House who are neither. The noble Baroness, Lady Finlay, said how common and how wrong it is that bogus therapists can take advantage of their clients, causing them real harm. The noble Lord, Lord Fairfax, was one of many Peers who know families who have been victims of this abuse, and he also powerfully argued for an end to inaction on the part of government. My noble friend Lady Jolly was another, who described graphically the behaviour of these charlatans as unethical and without shame. The noble Lord, Lord Kennedy, described our case on the amendment as a powerful case for change and called for action. So let us, please, not miss yet another opportunity, as the noble Baroness, Lady Mallalieu, put it. As the noble Baroness said, compulsory registration must sit alongside criminal sanctions, in just the way as the noble and learned Lord, Lord Garnier, pointed out. An offence of coercive control modelled on the Serious Crime Act may not be the only way to achieve it, but it is a good one.

Whatever form an amendment of the criminal law takes, the House and the Government know clearly what it is that we are trying to achieve. They really ought now to be implementing change, rather than closing the road to change. The Government need to get over the temptation to insist on drawing the distinction between what the noble Lord, Lord Parkinson, described as the emotional and affectionate bond that characterises domestic abuse and the type of abuse that these charlatans and quacks perpetrate on their victims. It will be interesting to see whether the Government can move away from insisting on that distinction. I described it earlier as a precious distinction, but it is purist at best.

“Not this Bill, not now” is no answer to the suffering of victims. We need the Government to be prepared to say, “Yes, this Bill and now”. At the very least, if they cannot say that, “The very next Bill, and soon”. We will take such opportunities as we can to bring about change. I accept that there will be opportunities to come, as the noble Lord, Lord Parkinson of Whitley Bay, indicated, and they may well be in health-driven legislation. On that basis, I beg leave to withdraw this amendment tonight, but we will be back seeking change in due course.