Domestic Abuse Bill

Lord Parkinson of Whitley Bay Excerpts

Report stage
Monday 15th March 2021 Lords Chamber

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

My Lords, I first declare that I am a vice-president of the Local Government Association, chair of the Heart of Medway housing association and a non-executive director of MHS Homes Ltd.

I am pleased to offer my support for Amendment 66B, proposed by the noble Lord, Lord Randall of Uxbridge. As the noble Lord set out, victims of domestic abuse can often endure lifelong risk from perpetrators, even when a relationship comes to an end. The noble Lord is doing a good job of highlighting that, where victims want to get away from their perpetrators, the actions of some local authorities can make that difficult or impossible and that that should not be the case. The noble Lord has highlighted a very important issue.

I was delighted to add my name to Amendment 87C, proposed by the noble Baroness, Lady Deech, and if she is minded to divide the House, then these Benches will support her. In many ways, the amendment deals with the other side of the coin in respect of tenancies. Where a victim wants to stay in their home and a landlord is either the local authority or a private registered provider of social housing, the amendment would give the victim the power to apply to the county court for an order to remove the abuser as a joint tenant, and clearly sets out the approach the court must take.

Both these amendments are about enabling the victim to make the choice they want to, putting the power of choice in their hands—the choice that affords them and their children the protection they need and want. We all know that domestic abuse is all about power and control, and these amendments are about taking steps to address the balance and support victims, so that they can start rebuilding their lives. I thank the noble Lord, Lord Parkinson of Whitley Bay, for his engagement on the issue; it is very much appreciated.

The noble Baroness, Lady Burt of Solihull, set out carefully why the option to wait and see what happens in Scotland is not particularly attractive to us. If we are going to accept the offer of consultation, we will need very clear timescales. I have raised many times before the whole range of government consultations that we never seem to get to the end of, so I do not think a consultation in itself is sufficient; we need very clear timescales. I will wait to hear the noble Lord’s response, but I repeat: if the noble Baroness wants to test the opinion of the House, then these Benches will support her.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, these two amendments deal with two separate aspects of housing law. The noble Baroness, Lady Burt of Solihull, asked why they have been glued together and why we could not take Amendment 66B with 66A. The simple reason is that it was tabled too late to do so, as my noble friend Lord Randall of Uxbridge accepted in his speech on the previous day of Report, but I am very glad that we are able to take it as first business today, on the third day of Report, and pick up where we left off.

As my noble friend Lord Randall of Uxbridge explained, his Amendment 66B seeks to prevent local authorities applying a local connection test to victims of domestic abuse when applying for social housing. Since 2012, local authorities have had the power to decide who qualifies for social housing in their area. Many local authorities use their qualification power to apply a local connection test to social housing, and statutory guidance published in 2013 generally encourages them to do so. However, the guidance also advises local authorities to consider making appropriate exceptions, including for people moving into an area to escape violence or harm. Additional statutory guidance was published in 2018 which strongly encourages authorities not to apply a local connection test to victims of domestic abuse who have escaped to a refuge or other form of safe temporary accommodation.

Despite this, as my noble friend pointed out, there is anecdotal evidence from the domestic abuse sector that some local authorities continue to disqualify victims of domestic abuse from social housing where they do not have a local connection. I understand and sympathise with the motivation underlying the amendment, which is to put that matter beyond doubt. However, the Government have some concerns with my noble friend’s amendment as drafted. A key concern is that the new clause it proposes would prevent a local authority considering the location of the abuser. We believe that that is an important consideration which the local authority should be able to take into account to ensure that the victim does not inadvertently end up living close to their abuser, which of course would undermine the purpose of the amendment and what my noble friend is seeking to achieve.

We have, however, listened carefully to and reflected on the points put forward by my noble friend Lord Randall of Uxbridge on the use of a local connection test. We want to make absolutely sure that victims and survivors of domestic abuse who need to move to another local authority area are not put at a disadvantage when seeking a social home. I am pleased to be able to give a commitment today that we will consult on regulations to prevent local authorities applying a local connection to victims of domestic abuse applying for social housing. The consultation will consider the scope of regulations and the circumstances in which the exemption would apply. We believe that this level of detail is best left to secondary legislation, and we have existing powers to make such regulations.

Consultation will provide the opportunity to engage with the domestic abuse sector, survivors and local authorities, to follow up on the anecdotal evidence which my noble friend has outlined, and to ensure that all their interests are considered and that the regulations achieve the desired aim of improving the protections for victims of domestic abuse.

Turning to Amendment 87C, as the noble Baroness, Lady Deech, has explained, this seeks to allow victims of domestic abuse who have a joint social tenancy with their perpetrator to transfer the tenancy into their own name. It also seeks to prevent the perpetrator ending the tenancy unilaterally. I am grateful to the noble Baroness and other noble Lords for bringing this issue to our attention again, and for the constructive conversations and engagement that we have had on this issue since Committee. We recognise and are sympathetic to the concerns which lie behind this amendment. We understand that, in the case of domestic abuse, the rules on terminating periodic joint tenancies may have the potential for perpetrators to exert further control over their victims. The amendment is intended to address this problem and enable the survivor to remain in the family home.

The proposed new clause would apply to social tenancies—both local authority and housing association ones. Most social tenants have lifetime tenancies, meaning that the tenant cannot be evicted provided that they comply with the terms of the tenancy. For this reason, a social tenancy can be an extremely valuable asset. That is why we are including provisions in the Bill which seek to provide security of tenure for victims of domestic abuse who have a lifetime tenancy and are granted a new tenancy by a local authority for reasons connected to that abuse.

Currently, where any joint tenant of a periodic tenancy serves a notice to quit, the law provides that the whole tenancy ends and that the landlord can seek possession of the property. This is a long-standing rule, established through case law and recently upheld by the Supreme Court in the 2014 case of Sims v Dacorum Borough Council. The rule seeks to balance the interests of each joint tenant as well as those of the landlord. This means that if a victim of domestic abuse has a joint tenancy with the perpetrator and has fled their home to escape abuse, they would be able to end the tenancy to ensure that they are no longer bound to a tenancy with their abuser.

When we debated this issue in Committee, I explained that the Government had several concerns with the amendment that had been tabled. I am grateful to the noble Baroness, my noble friend Lord Young of Cookham and all the other noble Lords who have spoken today for meeting me to discuss those concerns in greater detail with officials—I thank them too for their time and work on this. I note that the new amendment seeks to address some of the concerns that we outlined and discussed. In particular, the amendment now provides for notice of the application to be given to the perpetrator, the landlord and any other tenant. In addition, it deals with the issue of joint and several liability by providing that the perpetrator remains responsible for any rent arrears or other liabilities accrued before the court order for transfer is made.

However, we continue to have some concerns about the amendment, even as redrafted. It cuts across a number of long-established principles of common law—for instance the principle that an individual cannot be “removed” from the joint tenancy or cannot relinquish their share, as well as the rule on the termination of periodic joint tenancies, which I mentioned a moment ago. Given that these rules have wider application, we believe that it is important that any changes be considered in the round.

The amendment would introduce some new concepts to an already complex area involving not just common law, as the noble Baroness, Lady Deech, mentioned, but housing law, contract law, family law, and matrimonial law. The history of litigation in the field of housing in particular means that we would want to consider very carefully the introduction of concepts of removal from a tenancy and a tenancy continuing as if one joint tenant had never been a party to it in order to think through the possible implications fully. I hope noble Lords will understand how important it is that any changes do not have unintended consequences in this complex area of legislation.

A key concern is that the amendment still fails to provide for how the interest of third parties might be taken into account by the court, including the landlord, any other joint tenant, or any dependent children. It is for landlords to decide whether to grant a tenancy for their property and on what basis. They may decide to grant a joint tenancy for a number of reasons, including affordability and because joint tenants are jointly and severally liable for paying rent or looking after the property. However, the amendment would mean that the number of tenants could be changed without consideration or consent from the landlord as the owner of the property.

We absolutely concur that it is essential for survivors of domestic abuse to have access to a safe and stable home. However, social landlords have to balance difficult decisions. In some cases where a property may no longer be suitable, or indeed safe, for a survivor to remain it might be more appropriate for a social landlord to offer a survivor of domestic abuse a tenancy on a different property.

In addition, the amendment could result in interference with a housing association landlord’s own rights under human rights law. Since this engages other parties’ human rights, including those of the perpetrator, we need to carefully consider the right approach to balance those rights, and to ensure that any interference is proportionate and justified. We also have some concerns about whether the proposals are sufficient for the purposes of the perpetrator’s Article 8 right to respect for home and family life. I completely agree with the noble Baroness, Lady Deech, that the victim’s rights should be uppermost in our minds, but these are considerations that a court must take into account in possession proceedings. In addition, the requirement for the court to make an order “if not opposed” is unusual.

We have listened carefully to and reflected on the points raised by this amendment and during our previous debates. We want to consider the different issues and interests carefully, including the human rights case law that the noble Baroness mentioned, to ensure that any solution has the intended outcomes for all parties concerned. That is why I am pleased to give a further commitment today, as I did in my letter to noble Lords, that we will carry out a public consultation on this issue to help us better understand the complex legal and practical issues involved. Consultation will provide the opportunity to engage with the domestic abuse sector, survivors and victims, and local authorities to ensure that their interests are all considered, and that any changes to the law achieve the desired aim of improving protections for victims of domestic abuse.

The public consultation would also allow us to consider other solutions that have been put forward to this problem. For example, as the noble Baroness, Lady Deech, and my noble friend Lord Young of Cookham mentioned, the Scottish domestic abuse Bill seeks to introduce a new ground for eviction that would enable social landlords to remove the perpetrator of domestic abuse from the property and transfer it into the survivor’s name. That has not yet been enacted by the Scottish Parliament, but if and when it is we will want to see how it works, albeit that I acknowledge the point correctly put by the noble Baroness, Lady Burt, about doing that swiftly.

I understand that noble Lords will be concerned about the extra time that this consultation will take, so I will say something about timing. We would seek to issue the consultation this summer, following Royal Assent to the Bill. We would expect to carry out a standard 12-week consultation to allow for proper consideration of these complex issues, then consider the responses and publish a government response as soon as possible in the new year. Thereafter, we would seek to legislate, if appropriate, at the earliest available opportunity. I am happy to provide that answer.

I hope that provides sufficient reassurance to my noble friend Lord Randall of Uxbridge and the noble Baroness, Lady Deech, on how seriously we take these issues. We are committed to consult on both of them and to take forward the outcome of those consultations as soon as practicable thereafter. I hope that, having given those commitments, they will be content not to press their amendments.

--- Later in debate ---

[Baroness Wilcox of Newport (Lab) [V]]

My Lords, I make it clear at the outset that, if the noble Baroness, Lady Meacher, divides the House, the Opposition Benches will strongly support her amendment. The amendment calls for the Secretary of State to ensure that the personal data of a victim of domestic abuse in the UK is processed only

“for the purpose of that person requesting or receiving support or assistance related to domestic abuse”

and not for immigration control.

Government policy is clear: victims of crime should be treated without discrimination. Therefore, the separation of immigration enforcement and protection of domestic abuse victims who are migrant women must be delineated. A failure to do this puts migrant women at risk of the double jeopardy of both danger from their abusers and fear of deportation.

The Istanbul convention, the landmark international treaty on violence against women and girls which the Government have signed and are committed to ratifying, requires in Articles 4 and 59 that victims are protected regardless of their immigration status. Still, FOI requests reveal that 60% of police forces in England and Wales share victims’ details with the Home Office—prioritising immigration control over victims’ safety and access to justice.

While some services may need to share data to ascertain an individual’s immigration status and right to access the service—for example, some NHS services—there is no legal requirement for any data sharing with the Home Office related to domestic abuse victims. Without any national policy guidance on this practice, the police approach to safeguarding migrant victims of crime will remain inconsistent.

The blind spots contained in this Bill are resolved by this amendment. I fear that this blind spot enables offenders and abusers to use police involvement as a threat to their victims, rather than the source of protection that it should be. Various countries around the world have demonstrated that firewalls can be and are being implemented in different ways to create a separation between public services and immigration enforcement. It is entirely possible that the training and cross-sector relationships we are calling for through this Bill can establish safe reporting pathways that include access to specialist support services and legal advice to address a victim’s immigration status, as necessary.

Another consequence of putting immigration control above the safety of victims is that perpetrators can commit these crimes with impunity—a risk not only for survivors but for wider communities. Better trust in the police to protect victims of abuse and investigate crime for migrant women will improve responses for all survivors and the public.

I challenge the Government to establish safe reporting pathways by incorporating a clear statutory obligation preventing public authorities and other support services sharing data with the Home Office for the purpose of immigration control, to ensure that safe reporting is available to all women, regardless of their immigration status.

[Lord Parkinson of Whitley Bay (Con)]

I thank the noble Baroness, Lady Meacher, and the other signatories of this amendment for setting out their case for a firewall so that the personal data of domestic abuse victims which are given or used for seeking or receiving support are not used for immigration control purposes. I was glad to have the opportunity to discuss the issue with the noble Baroness and the right reverend Prelate the Bishop of London, the noble Baronesses, Lady Hamwee and Lady Wilcox of Newport, and others after Committee.

While I appreciate the case they are making, the Government remain of the view that what is provided for in Amendment 67 would hinder the safeguarding of victims of domestic abuse and that it is premature given the process set out by the policing inspectorate following its report on the recent super-complaint about this.

I fully understand the sentiment behind the amendment, which is to ensure that migrant victims of domestic abuse come forward to report that abuse to the police and are not deterred by concerns that immigration enforcement action might be taken against them. As my noble friend Lady Williams of Trafford made clear in Committee, our overriding priority is to protect the public and all victims of crime, regardless of their immigration status. Guidance issued by the National Police Chiefs’ Council, which was updated last year, makes it clear that victims of domestic abuse should be treated as victims first and foremost.

The National Police Chiefs’ Council remains clear in its view that information sharing between the police and Immigration Enforcement is in the interest of the victim. Sharing information can help prevent perpetrators of abuse coercing and controlling their victims because of their insecure or unknown immigration status. In such circumstances, bringing the victim into the immigration system can only benefit them. This amendment would prevent that and could cut against other assistance that can be provided to domestic abuse survivors.

It might assist the House if I give one example of the possible unintended effects of this amendment. We will shortly be debating Amendment 70 in the name of the right reverend Prelate the Bishop of Gloucester. That amendment seeks to expand the destitute domestic violence concession so that any migrant victim of domestic abuse can apply for temporary leave to remain while making an application for indefinite leave to remain. I will leave the debate about the merits of Amendment 70 to my noble friend and the debate which will follow. For the purposes of this debate, I submit that an application under the destitute domestic violence concession is, in the words of Amendment 67, a request for

“support or assistance related to domestic abuse”.

Under this amendment, the Home Office could not lawfully process any application under the DDVC because the applicant’s personal data could be used for an immigration control purpose. I fully accept that that is not what the sponsors of this amendment have in mind but, were it to be added to the Bill, I fear that would be one effect.

More broadly, I hope that noble Lords will understand that the Government are duty-bound to maintain an effective immigration system, not least because of their obligations under the Immigration and Asylum Act 1999, which permits the Home Office to share and receive information for the purposes of crime prevention and detection and effective immigration control. As such, it was particularly disappointing to hear the noble Baroness, Lady Wilcox of Newport, say that the Labour Benches would vote in favour of this amendment, were it put to a Division. We have an obligation to protect our public services and to safeguard the most vulnerable people from exploitation because of their immigration status.

The public rightly expect that people in this country should be subject to our laws, and it is right that, when people with an irregular immigration status are identified, they should be supported to come in line with the law and, where possible, to regularise their stay. Immigration enforcement staff routinely help migrant victims of domestic abuse and other crimes by directing them to legal advice to help regularise their stay.

Articles 6 and 9 of the general data protection regulation and the Data Protection Act 2018 provide the statutory framework within which this information is exchanged. I remind noble Lords that the Government are committed to reviewing the current data-sharing arrangements in relation to victims of domestic abuse.

It was not very long ago that, in the Policing and Crime Act 2017, your Lordships’ House approved legislation establishing a system of police super-complaints. The first super-complaint to be considered under this new system was on this very issue. The outcome was published by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services in December 2020. It made eight recommendations in total: five for the National Police Chiefs’ Council, two for the Home Office and one jointly shared between them. HMICFRS said that the Government should respond within six months—that is, by June—and we are committed to doing just that. However, having legislated for the super-complaint process, we should not now undermine it by not allowing it to run its proper course.

It is only right that we take account of the recommendations in the report in proper detail. In response to the report, we have committed to reviewing the current arrangements, and, as I have said, we will publish the outcome of the review by June. The right reverend Prelate the Bishop of London lamented the fact that this would be too late for this Bill, but I reassure her that it is highly probably that the outcome of the review can be implemented through further updates to the National Police Chiefs’ Council guidance or other administrative means—so action can be taken swiftly.

We understand the concerns that have been raised about migrant victims who do not feel safe in reporting their abusers to the authorities for fear of enforcement action being taken. The noble Baroness, Lady Meacher, has proposed undertaking further research into the experiences of this cohort of victims, which we are committed to doing. We will engage with domestic abuse organisations to understand those concerns and assess what more we can do to allay those fears. We welcome the input of all noble Lords as we conduct this research.

In conclusion, while we understand the concerns that lie behind it, we respectfully believe that this is the wrong amendment and at the wrong time. If adopted, it would prevent victims of abuse from obtaining the support that they need, whether under the DDVC or other routes, and it prejudges the outcome of the super-complaint process, which was endorsed by your Lordships’ House just four years ago. I would be glad to undertake to keep the noble Baroness, Lady Meacher, and others informed about the progress of the review and to discuss its conclusions with them. On that basis, I hope that they might yet be willing to withdraw their amendment today.

[Baroness Meacher (CB) [V]]

My Lords, I thank most of all the many noble Lords who have contributed so powerfully in support of Amendment 67. I also thank the Minister for his response, but I do not accept at all his view that it would reduce the support or protection for victims of domestic abuse. It very clearly talks about the information process

“for the purpose of that person requesting or receiving support or assistance”.

Obviously, that information being passed from the police to the immigration officials would be unacceptable under this amendment. On the other hand, if the victim were to go to the immigration officials with a representative and with their information, saying, “I want you to sort out my immigration status”, the immigration officials could of course proceed absolutely without any problem. As such, this is a bit of dancing on a pin, if I may put it that way. Basically, I do not accept that at all.

The Minister referred to working to allay the fears of victims of domestic abuse. This is not about allaying fears; it is about removing a very real risk for these very vulnerable victims of domestic abuse. As such, simply trying to allay fears really does not deal with the problem at all.

The Minister suggested keeping us informed; certainly, that would be helpful, and I hope that Ministers would do that. However, in view of the very disappointing response of the Minister, I want to test the opinion of the House.