Domestic Abuse Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage & Committee: 6th sitting (Hansard) & Committee: 6th sitting (Hansard): House of Lords
Wednesday 10th February 2021 Lords Chamber

Moved by

[Lord Ponsonby of Shulbrede]

171: After Clause 72, insert the following new Clause—
‘‘Repeal of provisions about defence for controlling or coercive behaviour offence
In section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship), leave out subsections (8) to (10).”Member’s explanatory statement
This new Clause seeks to repeal the ‘carers’ defence’ for the offence of controlling or coercive behaviour in intimate or family relationships.

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

My Lords, it is a pleasure to follow the previous group. The noble Baroness, Lady Greengross, has had many decades of campaigning for older people. I know that she had a long-standing friendship with my father, both when he was a Member of this House and in his days in local authorities, and that it was of great benefit to him.

Amendment 171 looks at another group of people—those who suffer from some form of disability—who are also disproportionately affected by domestic abuse. The amendment would repeal what has been labelled by some as the “carer’s defence” under Section 76 of the 2015 Act. Domestic abuse of disabled people has not been discussed as part of the Bill so far, and it is not generally discussed.

When abuse against disabled people is discussed, it is usually in the context of safeguarding issues. The disabled people are labelled as vulnerable adults and the carer’s defence is that their behaviour is reasonable and justified, given the nature of their caring responsibilities. The defence in the carer’s defence is that there could be a wrongful conviction of a carer for coercive and controlling behaviour when the carer was acting in the disabled person’s best interests. They might say, “I did it for their own good”—an expression often used by abusers who are also carers, and the courts might let them off with that defence.

The statistics on the abuse of disabled people are frightening and grim, and I imagine that we will hear more of them from my co-signatory, the noble Baroness, Lady Grey-Thompson, but I will give a couple of statistics which have been brought to my attention.

Disabled adults are at least one and a half times more likely to be a victim of domestic abuse than non-disabled adults. Disabled women are up to three times more likely to experience domestic abuse from their family members. Some of these abusers will also be their carers. I believe it is highly likely that those figures are an underestimate, as disabled people often find reporting crime difficult, and DA survivors often find it more difficult to access the help that they need.

There is a proper place for a carer’s defence. Genuine carers must be able to protect themselves from malicious allegations, but I argue that other Acts do this better—namely, the Care Act 2014 and the Mental Capacity Act 2005. Both provide proper protection for genuine carers.

This Bill is about domestic abuse and how to tackle its many manifestations and protect victims. Too often, disabled victims are ignored. Through the Bill, the Government have an opportunity to show that they are listening to disabled victims, who can be fully acknowledged with this landmark legislation. With the carer’s defence being found in other legislation, my amendment would not dilute the central message of the Bill, which is that all forms of domestic abuse are unacceptable. Disabled victims, too, need to be fully reflected in the Bill. I beg to move.

[Baroness Grey-Thompson (CB) [V]]

My Lords, in speaking to this amendment, I draw your Lordships’ attention to my declaration of interests, and I am vice-chair of the Local Government Association.

I thank the noble Lord, Lord Ponsonby, for comprehensively covering the reason for tabling the amendment, and I am delighted that my name is added to it. It is a very difficult issue to raise. There are many, many kind carers out there, but we should recognise that some are not. I know that some people have difficulty with this being debated as part of a domestic abuse vehicle and question whether it is the right vehicle for raising the issues, but I argue that it is, because many cases of abuse occur in a domestic situation.

It is incredibly difficult for disabled people to raise these issues when not only personal care but control of transport and money and the ability to get out might be at stake. We know from various pieces of work that it is very difficult for disabled people to raise these issues. The Equality and Human Rights Commission, in its work from November 2020 entitled Survival, Recovery and Justice: Specialist Services for Survivors of Domestic Abuse, said that disabled women are already disproportionately impacted by domestic abuse. In its 2017 report, SafeLives says that they are

“twice as likely to experience domestic abuse as non-disabled women”

and

“four times more likely to report abuse from multiple perpetrators”.

The charity Stay Safe East, which supports disabled survivors of domestic abuse, considers that the defence has the potential to prolong the abuse of disabled victims, to prevent victims getting justice and to disadvantage disabled victims of coercive control. This is particularly concerning in a context where disabled survivors already experience abuse for longer before seeking help. According to the SafeLives work from 2017, called Disabled Survivors Too, on average disabled victims wait for 3.3 years before accessing support, compared with 2.3 years for non-disabled victims.

A statutory framework is already in place to involve professionals where a person might lack capacity and require medication or confinement—for example, the procedures under the Mental Capacity Act or the Mental Health Act—and there is protection from criminal liability for carers of people who lack capacity. Should a person not lack capacity, they have the right to refuse medication or other treatments or restraints. Nobody should be subject to coercive or controlling behaviour by a spouse or carer, and the law should not provide lesser protection just because somebody is disabled.

There is a high bar for the crime of coercive control. Behaviour must cause a victim serious alarm or distress and have a substantial adverse effect on their day-to-day activities. We should consider the best-interests defence and the risks of it, as it could enable potential abusers to justify that behaviour by claiming that they were acting in the disabled person’s best interests. It also risks feeding into the stereotypes of disabled people, which suggest that they lack autonomy.

We are living in an increasingly paternalistic and ableist world. I know from my personal experience of the pandemic, because I have not been out every day and carrying out my normal line of work, how much resilience disabled people need to deal with their day-to-day experiences, when they are not being believed or having their views accepted. This applies to simple things. Even before our first lockdown, when I was travelling on public transport people felt able to ask me whether I was able to make the right decision about whether to get on a bus or Tube in London, whether to wear my coat out or what I should do with my purse in a shop.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

My Lords, I start by commending the noble Baroness, Lady Burt, because she spotted something that nobody else noticed on Monday evening, which is that I spoke in response to this amendment, but the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Grey-Thompson, had not moved it at all. That might be why I sounded as if I had prejudged a bit. I will reiterate some points on this occasion, but I apologise for being a bit previous with my comments.

As the noble Lord, Lord Ponsonby, said, Amendment 171 addresses the so-called carers’ defence within the controlling or coercive behaviour offence. Subsections (8) to (10) of Section 76 of the Serious Crime Act 2015 allow for this limited “best interests” defence, where the accused can demonstrate that they were acting in the best interests of the victim. The defence is not available in situations where the victim fears that violence will be used against them. I must be clear on that. For this defence to apply, the accused would also need to demonstrate to the court that their behaviour was reasonable in all the circumstances.

The defence was designed to cover cases where the accused is genuinely acting in the best interests of the victim. The first example that comes to my mind is a situation where the accused is looking after an elderly partner or parent with Alzheimer’s disease and must ensure that that person does not leave the house for their own safety. In these circumstances, it is entirely possible that the accused’s behaviour, while it might be considered controlling in a different context, is reasonable given the nature of their caring responsibilities.

As we have heard today, proponents of this amendment fear that it may enable the abuse of disabled people. However, there is a real risk that, without such a defence—and bearing in mind the example that I have just given—a person may be wrongfully prosecuted for and convicted of controlling or coercive behaviour, when in fact they were acting in a person’s best interests.

Ultimately—and I am repeating my words from the other night—it is for courts and juries to decide merit on a case-by-case basis, whether or not the threshold for the defence has been met. It should also be noted that similar or equivalent offences in Scotland, such as Section 6 of the Domestic Abuse (Scotland) Act 2018, and the proposed new domestic abuse offence in Northern Ireland, in Clause 12 of the Domestic Abuse and Family Proceedings Bill, which has recently completed its passage through the Northern Ireland Assembly, also contain a similar defence.

I hope that, in the light of my explanation—for the second time—of the necessity of this defence, the noble Lord will be happy to withdraw his amendment.

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

My Lords, I thank all noble Lords who have spoken in this debate, which has been a short but important one.

The central point I took from the intervention from the noble Baroness, Lady Grey-Thompson, is that the Carers Trust wants better support and wants the support of carers to be a more suitable focus rather than this potential loophole for wrongly accusing carers of some form of abuse.

The noble Baroness, Lady Burt, was much more robust in her language than I have been. She called it a patronising defence and said that the courts should decide. Essentially, that is what the noble Baroness, Lady Williams, said; the courts can decide because the charges can be brought with other legislation, as she acknowledged in her intervention.

The noble Baroness, Lady McIntosh, argued that the neatness and ease of reference may be a deciding factor in keeping this defence in this legislation and that putting it in other Acts would create difficulty for practitioners. That is the point that I think both the noble Baronesses, Lady Burt and Lady Grey-Thompson, would not have agreed with, because this Bill is about domestic abuse; it is not about giving potential defences to abusers that are already covered in other legislation.

The noble Baroness, Lady Williams, opened her comments by saying that nobody noticed. I am sorry to disappoint her, but we did notice—but there was no easy way of informing the authorities that she had given an answer to these points on Monday evening. Nevertheless, this is a probing amendment and we will consider our position. I think that it shows that people with disabilities want to be fully represented in this landmark legislation. On that basis, I am happy to withdraw the amendment.

Amendment 171 withdrawn.

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[Lord Paddick (LD) [V]]

My Lords, my noble friend Lady Benjamin, who introduced Amendment 177A in such an inspiring way and for whom I have the greatest admiration and the highest respect, has been a passionate campaigner her whole life on protecting and nurturing children. In her own inimitable style, she says, “Childhood lasts a lifetime”. I am very glad that she got that in, even if it was in the penultimate sentence of her speech. She is absolutely right. What happens in childhood impacts people for the rest of their lives, potentially with devasting consequences, and accessing pornography is one of those influences that can have an adverse impact on children.

In this Bill we are addressing domestic abuse, and many children grow up in households where domestic violence is a regular occurrence. I was at the same time impressed and saddened when I visited the only young offender institution in Scotland. The young people there were engaged in sessions with someone from a domestic abuse charity who taught them that the abusive home environment in which many of them had grown up is not normal and that it is not what a healthy, loving relationship looks like, despite it having been the lived experience of many of them. Living in an environment where you are surrounded by violence normalises violence as a way of life, and accessing harmful violent pornography is part of the landscape viewed by many young people.

As a police constable I was called to a disturbance. We were presented with a couple, a room that looked as though it had been ransacked, and a broken glass-top table. The woman had red marks around her neck. We found a ligature and a plastic bag with the impression of her face on it, like a mask. We arrested the man for attempted murder and took the victim to hospital. At court the next day, the accused’s lawyer claimed that it was consensual rough sex and the victim—I thought reluctantly—agreed, and the case was dismissed. To this day, those images haunt me, as does the nagging doubt about the extent to which the woman had really consented to what was done to her.

I am glad that this Bill finally, over 40 years later, is going to address this issue, but we have to ask ourselves where people get these ideas from. Some 57% of people in the BBC survey that my noble friend referred to said it was from pornography. Any means of preventing young people from accessing such harmful pornographic content should be implemented, so it seems quite extraordinary that the Government should work for a number of years with the British Board of Film Classification to develop a system of age verification for pornographic websites and pass legislation in the Digital Economy Act to enable such a system to be put into place—only to abandon it.

Age verification systems are not a panacea. There are numerous and easily accessible ways for a determined teenager to bypass them. I am not sure how many read Hansard, but I do not intend to publicise them. The means of enforcing age verification systems on the operators of pornographic websites is not without difficulty. Many are free to view and hosted outside the UK. Asking UK internet service providers to block websites that fail to comply with age verification rules would also block adults in the UK, who should be able to access legal pornography, if they so wish, from accessing them.

The measures to prevent young people from accessing pornography on some social media sites have improved, with users being prevented from posting pornography. This is effectively policed and enforced by website operators such as Facebook and Instagram. There are exceptions. The measures to prevent young people from accessing pornography on Twitter, for example, are somewhere between weak and non-existent. However, that does not mean we should not do all we can, despite the limitations, to encourage, cajole and use every legislative means possible to put pressure on these websites to introduce age verification for UK users and, in the case of social media, to ban pornographic content unless they can prevent children from accessing it.

We also have to work on the basis that a determined teenager is going to find a way around the system and that even curious younger children may try and succeed in accessing pornography. Comprehensive and compulsory personal, social, health and economic education—PSHE—including healthy relationship and age-appropriate sex education, is vital to combat what children might see and hear if they access online pornography, and what they might see and hear in their own homes.

It is particularly important that children of all ages are taught as early as is they learn what a loving, caring relationship between two people looks like, so that they see this as the norm, rather than anything that they might see online or experience when they are growing up. It is particularly important in this male-dominated, patriarchal society that children are taught that treating women and girls with dignity and respect and as equals with men is essential.

We are all impacted by our experiences and I have said some things in debates on this Bill as a survivor of domestic abuse to remind the Committee not to forget male victims and survivors who are or were in same-sex relationships. That is not intended to diminish the real issues that society must address in relation to the inequality between men and women in general and male violence against women and girls in particular. Some online pornography reinforces that inequality and glamorises male violence. We must do all we can to prevent the harmful impact this can have, particularly on children and young people. We support this amendment to require an investigation into any link between online pornography and domestic abuse.

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

My Lords, we have heard powerful speeches in this debate. I shall start my contribution with the things I would question in the amendment. I should make it clear that I support the amendment in principle, but I question whether simply making the Government commence Part 3 of the Digital Economy Act is the right solution. I question also whether the British Board of Film Classification is the right body to lead on this, whether the technology would work, and whether privacy concerns have been adequately answered.

As we have heard from other speakers, the worst material is generated outside the UK and we would have no legislative ability to control or curb it. The Government have consistently refused to take powers to block internet service providers from carrying material that harms children or glorifies domestic abuse. They have also not taken powers to prevent credit card issuers making payments for illegal content. So I will be interested in the Minister’s answer to the suggestion made by the noble Lord, Lord Alton, that an interim arrangement could be made to bring in Part 3 of the Digital Economy Act until more substantive legislation is put in place.

The speeches we have heard were extremely powerful, particularly from the noble Lord, Lord McColl, who spoke with real passion and knowledge on this issue. My noble friend Lady Massey is clearly playing a leading role in the Council of Europe in setting international standards because, of course, our problem in the UK is not unique and all our friends in Europe and indeed across the world are grappling with these issues. The noble Baroness, Lady Eaton, and the noble Lord, Lord Morrow, also spoke with real knowledge. I thought that the noble Lord, Lord Paddick, had it right when he said that education is the key to addressing this issue. That is a wider point and one that he has made in other groups, both today and on previous days in Committee, but it is a point that is worth repeating.

I was not here last Wednesday for the fourth Committee day because I was sitting as a magistrate. I was dealing with a sex case and I had reason to read two reports on a young offender which had been written by more than one specialist. The reports both commented on the use of porn by the offender. There is absolutely no doubt in my mind that the use of porn influences the way people behave, and that the influence is bigger if the users of porn are younger. We have really been led on this by the noble Baroness, Lady Benjamin, and I hope that the Minister will be able to respond as favourably as she can to that leadership.