Domestic Abuse Bill

Lord Wolfson of Tredegar Excerpts

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

[Lord Paddick (LD) [V]]

My Lords, Amendment 71, in the name of the noble Lord, Lord Ponsonby of Shulbrede, supported by the noble Lord, Lord Anderson of Ipswich, would make the very sensible change from the vague requirement to allow the alleged perpetrator to make representations about the issue of a domestic abuse protection order from

“as soon as just and convenient”

in Clause 32(4)(a) to the more usual and precise “as soon as practicable”—or perhaps it should be “as soon as reasonably practicable”—to which Amendment 71 would add, “within five working days.” In addition to the reasons given by the noble Lord, Lord Ponsonby, I would say that such orders can have profound, and not immediately obvious, unacceptable consequences for the perpetrator, alleged or otherwise—as my noble friend Lady Hamwee mentioned when she said that the process needed to be fair to both sides.

Amendments 72 and 73 limit conditions imposed by a domestic violence protection order granted without notice to only negative or prohibitive requirements, not positive ones. The noble Lord, Lord Anderson of Ipswich, drew the comparison with TPIMs; I shall draw a different comparison. This legislation appears to be similar to that governing knife crime prevention orders made under the Offensive Weapons Act 2019. In the absence of the defendant, when an order is made without notice, only an interim knife crime prevention order can be granted, under Section 16(3)(a) of the 2019 Act, with proceedings on the knife crime prevention order itself being adjourned. The interim order can impose prohibitions that may be imposed under a full order, but none of the positive requirements. Why not here?

I ask the Minister, in support of this amendment, why such a distinction between, say, an interim domestic violence protection order and a full order is not part of this Bill. Consistency in legislation, particularly in the criminal law, where people must be able to understand clearly what is expected of them—an important part of the rule of law, to which this Government appear to be paying scant regard, judging by recent form—is important. It is not inconceivable that someone who is or has been subject to a knife crime prevention order may, at some stage, be subject to a domestic violence prevention order. Inconsistency such as that between this Bill and such recent legislation as the Offensive Weapons Act 2019 is unhelpful and unwelcome.

As the amendments have the support of the noble and learned Lord, Lord Mackay of Clashfern, of an active magistrate, of a former Crown Court recorder and of a former Home Secretary, it would, at least in normal times, be difficult for the Minister to disagree. But I am sure he will.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, in response to that last comment, it is almost impossible for me not to rise to the occasion. First, I thank the noble Lord, Lord Ponsonby of Shulbrede, for setting out his case for the amendments. Of course I have listened carefully to everything in the debate, particularly because, as the noble Lord, Lord Anderson of Ipswich, said, the points have been put in a constructive spirit. I take on board, of course, the point made by a number of speakers, including in particular the noble and learned Lord, Lord Mackay of Clashfern, that the amendments have the support of the Magistrates Association.

Clause 32 sets out when the court can make a domestic abuse protection order without prior notice of the proceedings having been given to the alleged perpetrator. Typically, as is also the case with existing protective orders, the courts will provide the alleged perpetrator with prior notice of an application for a domestic abuse protection order and of the hearing. However, like existing protective orders, a DAPO can be made without prior notification if there is an urgent need. Clause 32 sets out that a court may make such an order without prior notification

“where it is just and convenient to do so”.

That is in subsection (1).

Clause 32 also specifies, in subsection (3), that before making an order without prior notice,

“the court must have regard to all the circumstances”

of the case. Without limiting the breadth of that requirement, the clause then goes on to list a number of specific factors, three of which I will draw attention to. The first is

“any risk that, if the order is not made immediately,”

the alleged perpetrator will cause significant harm to the victim. The second is whether the victim is likely to be

“deterred or prevented from pursuing the application if an order is not made immediately”.

The third is

“whether there is reason to believe that”

the alleged perpetrator

“is aware of the proceedings but is deliberately evading service”.

Those provisions are crucial for ensuring that the victim can obtain the protection they need in all circumstances.

However, we agree, of course, that the alleged perpetrator should be able to exercise their right to make a representation to the court after such an order—an order without notice—has been made. That is a basic principle of justice: courts normally operate on what has traditionally been called audi alteram partem—it is a pleasure that one can still use Latin in the court of Parliament, even if you cannot use it in the courts of justice any more—which obviously means “both sides must be heard”. Where that has not been the case, for reasons of urgency or otherwise, a hearing where both or all parties are present is then convened. Therefore, Clause 32 already specifies that, when the court makes an order without prior notice, a return hearing must be scheduled

“as soon as just and convenient”.

I recognise that the noble Lord’s Amendment 71 sets a time limit of five working days; I understand his reasons for doing this, but there are a number of problems with this approach, and I shall set out three. First, the amendment would make our approach inconsistent with other protective orders, which require return hearings to take place as soon as is just and convenient. We do not see reason to take a different approach on that point for DAPOs.

Having said that, each sort of protective order must be looked at in its own circumstances, along with the mischief and harm that the order is seeking to address. Therefore, on the point made by the noble Lord, Lord Paddick—that there should be a direct read-across from knife crime prevention orders as to positive and negative factors or the phrase “as soon as practicable”—the problem with such analogies is that they are different. One must look at each sort of order on its own terms.

Secondly, the period of five days is somewhat arbitrary. As the noble Lord, Lord Blunkett, pointed out, in the current circumstances five days might or might not be realistic. I will resist the opportunity to respond to his points about backlogs in the justice system in this short debate; I have done so elsewhere. I will also resist responding to my noble friend Lord Cormack’s point about the article in the Times, which I have only skimmed and have not had a chance to read in detail. I suggest that it is better to have a just and convenient timescale.

This leads me to my third point: we would not want a court to be, or to feel, forced to hold a hearing within the five-day period if a slightly longer period might be more suitable—for example, if the respondent’s preferred counsel were available on the sixth day but not the fifth. Another example might be the judge who granted the initial order being available on the sixth day but not the fifth, when it might well be in the interests of the parties and the justice system for the same judge to hear the matter on an all-parties basis. Therefore, for those reasons, while recognising the reasons behind the amendment, we are not persuaded that it is required.

I now turn to Amendments 72 and 73 to Clause 33. The existing provisions in Clause 33 enable the court to impose “any requirements … necessary” for the protection of the victim from domestic abuse or the risk of domestic abuse. This includes both prohibitions and positive requirements. Any order the court makes must be necessary and proportionate to protect the victim. Although I, of course, respect the experience of the noble Lord, Lord Anderson of Ipswich, while sitting as a recorder, that one would not normally make a positive order in the absence of a perpetrator, it may be important to do so in certain circumstances, and the courts should have the flexibility so to act.

I agree with the noble Lord’s view that, while it is important that the court can impose the necessary requirements by making a DAPO, we must ensure that the alleged perpetrator is not punished for breaching any requirements they were not aware of. This is especially the case as a breach of positive or restrictive requirements may be a criminal offence. In this context, it is important to take on board the point of the noble Lord, Lord Blunkett, that we must not, if I may adapt his phrase, be taken for a ride in this important area.

For this reason, Clause 37 sets out that, where an order is made in the alleged perpetrator’s absence, the person does not commit an offence as regards breach of any of the requirements imposed by the order, whether restrictive or positive, until that person is aware of the existence of the order. This approach is consistent with other orders in this area. I assure all noble Lords, particularly the noble Baroness, Lady Hamwee, who made this point, that these are serious amendments, as has been said. We have considered them extremely carefully.

In the light of the explanations I have given this afternoon, I hope that the noble Lord is now content to withdraw his amendment.

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[Lord Paddick (LD) [V]]

My Lords, I am grateful to the Minister for his application, but I have to confess to being slightly confused or, at least, lacking some detail from his arguments. At one point, he said that the wording in the Bill is similar to other protective orders and that is why the Government do not support the amendments; yet, at others, he said that the reason why it is not consistent with other protective orders is that they are different.

I do not expect the noble Lord to be able to give me chapter and verse here and now as to why knife crime protection orders are different from domestic abuse protection orders, but I would be very grateful if he could write to me to explain why, on the one hand, the Government argue that the wording needs to be the same as other protective orders, while on the other, they argue that the amendments are faulty because they are different from other protective orders.

[Lord Wolfson of Tredegar (Con)]

My Lords, there will be correlations and differences between various orders in this context. I can certainly undertake to write to the noble Lord on this point, but I hope I can go one better: if, in addition to a letter, a conversation would be helpful, I am very happy to offer that as well.

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

My Lords, I will start with the point that the noble Lord, Lord Paddick, has just made about the read-across between knife crime prevention orders and DAPOs. I would certainly be very interested in attending the meeting that the noble Lord, Lord Wolfson, has just offered because the earlier point that the noble Lord, Lord Paddick, made was strong: that it is reasonably likely that perpetrators might be subject to both of those orders, so there is merit in having a similar approach, whether it is a knife crime prevention order or a DAPO. I would be very happy to join the meeting that the noble Lord, Lord Wolfson, has offered.

I thank all noble Lords who have spoken on this group. I was interested in the comparison made by the noble Lord, Lord Anderson, between these orders and TPIMs. He said that these are much more widely drawn, which was an important point. The noble Lord, Lord Blunkett, sought to contrast treatment and punishment, which, I suppose, is a theme here—although we are not dealing with convicted criminals but prevention orders. The point I invariably make when I am sentencing in court or making an order like this is that, even if it is a punishment, it is for the benefit of the people who have positive requirements made of them in whatever that sentence might be. When I make that point, I invariably get a nod from the person I am sentencing, so people understand that point, in my experience.

I listened carefully to the explanation and summary given by the noble Lord, Lord Wolfson, but I think I have quite a strong pack of cards, if I can put it like that, and although I will withdraw my amendment I may consider coming back at a later stage.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I thank noble Lords who have spoken to these amendments. Perhaps I may be forgiven for taking up the invitation from the noble Lord, Lord Paddick, to write to him. He is, with respect, entirely correct that there are a number of issues here. He asked specific questions to which he is entitled to receive specific answers. While I will do my best to answer some of his questions in my remarks, I will need to go through Hansard to pick up others and write to him.

These amendments relate to different aspects of how the domestic abuse protection order will be made. To be clear, and in response to a point made by my noble and learned friend Lord Mackay of Clashfern, these amendments relate to how DAPOs will operate when they are made normally, not only in the exceptional case when they are made on a “without notice” basis. I hope the Committee will permit me to go through the amendments in turn.

I hope that nobody understood my comments in the last debate to be dismissive, to use the word of my noble friend Lord Cormack. I referred to the experience of the noble Lord, Lord Anderson of Ipswich, as a recorder, the vast experience of my noble and learned friend Lord Mackay of Clashfern, and the fact that the amendments are supported by the Magistrates’ Association to underline that we have given these amendments the most careful consideration. I am sure that all noble Lords who have had significant engagement with my noble friend Lady Williams and me will accept we have gone out of our way to hear their concerns and engage with them.

On Amendments 80 and 81, Clause 34 sets out that a responsible person must be specified for each positive requirement imposed by a DAPO. The responsible person will have a duty to make the necessary arrangements to deliver the requirement, promote compliance and inform the police of any breaches.

Clause 34 also sets out that the courts must receive evidence about the suitability and enforceability of positive requirements from the responsible person before making an order. The responsible person will typically be a representative from the organisation delivering the particular programme that the person subject to the DAPO is required to complete, such as an organisation that delivers a perpetrator behaviour change programme or a drugs or alcohol treatment programme.

Amendment 80 in the name of the noble Lord, Lord Ponsonby of Shulbrede, would require the court also to consider evidence from probation or youth offending teams as appropriate, alongside evidence provided by the responsible person. While I agree with the noble Lord that the court should consider all the evidence necessary prior to making an order, I consider that the evidence provided by the responsible person will be sufficient to establish the suitability and enforceability of positive requirements without the specific requirement for further evidence from probation or youth offending teams. We do not consider it appropriate to require evidence from youth offending teams, as a DAPO cannot be made against a person below the age of 18.

I agree with the general aim of Amendment 81, which is to maximise the effectiveness of the requirement to attend drug, alcohol or mental health programmes. However, as I have just mentioned, Clause 34 already specifies that the court must consider the evidence provided by the responsible person in relation to the suitability and enforceability of the requirements prior to making a DAPO that imposes positive requirements. I understood that to be a point also made by the noble Lord, Lord Paddick. The court will also be able to take into consideration any representations made by the person against whom the order is to be made, which I hope that responds to the point made by the noble Baroness, Lady Jones of Moulsecoomb. Given these provisions, I do not believe that the specific agreement of the alleged perpetrator is also required to maximise the effectiveness of such programmes. I hope that that responds to one of the points of the noble Lord, Lord Anderson of Ipswich.

Amendment 82 relates to Clause 36, subsection (1) of which provides:

“A domestic abuse protection order takes effect on the day on which it is made.”


Clause 36(2) provides that where a DAPO already exists, the courts may make the new DAPO take effect when the existing DAPO ceases to have effect. I agree with the noble Lord, Lord Paddick, that there should be no gap in the protection provided where there is a transition from an old to a new DAPO. However, as Clause 36 already provides for this, we do not see reason to make the change proposed in Amendment 82.

As for the explanatory statement to the amendment from the noble Lord, Lord Paddick, on whether the same provisions could be imposed under both orders, that is a matter for the court, which would look at all the circumstances of the case. One must remember in this context that the two orders might be sought and obtained by different applicants. I hope that that also answers the points of the noble Baroness, Lady Hamwee, but if, on a reading of the debate, it does not, I will, if I may, write to her with any additional points.

On Amendments 83 and 84, Clause 36 also provides that the DAPO can be flexible in duration, so that longer-term protection can be provided to victims if needed. I understand the concerns expressed by the noble Lord, Lord Ponsonby, and other noble Lords about DAPOs being applied indefinitely, but the flexibility of the DAPO, including its duration, is central to its effectiveness, particularly when compared to existing orders. By contrast, the two-year limit proposed by the noble Lord is both hard-edged and somewhat arbitrary.

It is vital that victims can be provided with longer-term protection when needed. Clause 36 gives the court several options so that it may determine the duration of each DAPO based on the facts of the case before it. The order can therefore be in place for a specified period until the occurrence of a specified event or further order of the court. To give noble Lords a simple example: the victim is attending a course of study, which has two years and three months to go. Is she to be required to obtain a two-year order, which might prevent the perpetrator going near that place of study, then have to come back to obtain a further order for three months? If that were to be the case, one would ask, rhetorically, why it should be so.

As set out in Clause 36, the court may specify within the DAPO itself different durations for different requirements imposed by the order. The courts may also vary or remove certain requirements or discharge the order entirely where it is satisfied that the order is no longer necessary for the protection of the victim. It is important to note that the Bill already contains various mechanisms to protect the right of the person subject to the DAPO. Under Clause 33, the court can only impose requirements that it considers necessary to protect the victim from domestic abuse or the risk of domestic abuse. Clause 34 requires the court to avoid, so far as is practicable, imposing any requirements that conflict with the person’s religious beliefs or interfere with their work or attendance at an educational establishment. Clause 36, as the noble Lord, Lord Anderson of Ipswich, noted, provide a maximum duration for any electronic monitoring requirements of 12 months.

I move on to Amendments 85 and 87 to Clause 37. The clause provides that failure to comply with any requirement imposed by a DAPO without reasonable excuse is a criminal offence carrying a maximum penalty of five years’ imprisonment, or a fine, or both. That sends a strong message to perpetrators that non-compliance will not be tolerated. As specified in Clause 37, where a DAPO has been made without notice, the behaviour of the perpetrator can be considered a breach only if, at the time of the behaviour, the alleged perpetrator was aware of the existence of the DAPO.

I agree with the general aims of the amendments proposed by the noble Lord to Clause 37, which are to ensure procedural fairness so that criminal liability and punishment for breach of a DAPO will occur only where the breach is proved to the criminal standard of proof and where the perpetrator knows of the order’s existence. However, I do not believe that the amendments proposed are necessary. The criminal standard of proof—I am afraid that I do not have a Latin tag here for the noble Baroness, Lady Hamwee—will apply automatically in any criminal prosecution for breach of a DAPO. As already mentioned, Clause 37 already specifies that the behaviour of the perpetrator can be considered a breach of the DAPO only if the perpetrator is aware of the order at the time of the relevant behaviour.

Let me say an extra word about each of those points. First, we believe that the civil standard of proof is appropriate for making what is a civil order. This is the position taken with a number of existing protection orders of this kind. I recognise that those on the now somewhat virtual Liberal Democrat Benches do not support this approach as a matter of principle and I understand their reasoning, but I do not agree with it. The principle that I have set out that a civil standard of proof is appropriate for such orders is now firmly established as part of our legal framework.

It is worth noting in this context that to the extent that the Joint Committee considered this question when examining the draft Bill, it is evident from its report that it had no issue with applying the civil standard of proof. For example, at paragraph 84 of the report, the Joint Committee said:

“The standard of proof required for a DAPO is the civil standard (balance of probabilities) which means a DAPO may be made in criminal proceedings even if the perpetrator has been acquitted.”


A similar point was made at paragraph 107. I have no doubt that if the Joint Committee had any concerns about applying the civil standard it would have made that clear.

One of the strongest elements of a DAPO is that it is a civil order, made on the civil standard of proof. That means that if a victim is not able to, or chooses not to, seek remedy through the criminal justice system, they can still access protection from the court. At the same time, we want to send a clear message to perpetrators that breach of an order will be acted on, which is why we have provided that breach of an order will be a criminal offence. As noble Lords will know, that is already the case with many existing civil orders, including restraining orders, non-molestation orders, knife crime prevention orders and serious crime prevention orders.

Breach of a DAPO does not lead automatically to criminal sanctions. The breach would need to be reported to the police, who would then investigate and refer to prosecutors for a decision on whether to pursue a prosecution. Criminal sanctions would be imposed only following a conviction for the breach offence in the criminal court, which would need to be proved to the criminal standard in the usual way.

The second point is the requirement proposed by the amendment that a perpetrator must be aware of “the requirements” of a DAPO and not only of its existence. I hesitate to disagree with a point that the noble Lord, Lord Anderson of Ipswich, said was unanswerable. However, I am sure that the noble Lord will not take it amiss if I do, and I will explain why. Adding “the requirements” of the DAPO is likely to lead to a lot of uncertainty, much litigation, and less protection for victims. What are the “requirements” of a DAPO? What would that mean? Is it the terms of the DAPO or what the terms require you to do in practice? They are different things. What does it mean to be aware of the requirements of a DAPO? Is it to have read them, to have understood them, to have understood their legal effect or to have understood their practical effect? They are all different things. Therefore, in response to the noble Lord, Lord Anderson of Ipswich, and to a similar point raised by the noble Lord, Lord Paddick, I say that we generally require people to obey orders of the court once they are aware that an order has been made, and that a DAPO should be no different.

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[Baroness Hamwee (LD) (V)]

The Minister’s reply will obviously take some reading, which we will do. As regards the point on contempt, my question was about the experience of the model. I quoted a ministerial letter—not a letter from the noble Lord, Lord Wolfson—about the why, or at least partly why. In any event, I thank him for responding to that.

My question is about the criminal standard for breach of an order. The Minister said that it applied automatically; he then used the phrase, “in the usual way”. When he writes his letter, perhaps he could add a paragraph explaining how it is automatic and where that comes from, so that we can understand its application. He referred to other civil orders and he might want to refer to whether those are silent in legislation as to the standard of proof when breached or whether they deal with the standard explicitly.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful to the noble Baroness, Lady Hamwee, for explaining the contempt of court point in more detail and for setting out the question of the standard of proof. I will be happy to include a paragraph on that in my letter as well.

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

My Lords, this has been a very wide-ranging debate with a lot of legal detail. I will respond to the fellow laymen who have taken part in the debate. In response to the noble Lord, Lord Cormack, I should say that I have found the noble Lord, Lord Wolfson, to be very helpful and I certainly have not found him to be dismissive in any way. In fact, before this debate he went out of his way to help me and other colleagues.

I turn to my Amendment 81, referred to by the noble Baroness, Lady Jones of Moulsecoomb, and the noble Lord, Lord Randall. Although it is my amendment and it does say that there should be agreement to any drug, alcohol or mental health treatment, perhaps I may say a word against it. I believe that this should be a judicial decision. It is a difficult one and obviously it is better if the participants in the courses agree and sign up to them. Nevertheless, there are occasions where it is helpful to make this part of a court order. If there is some ambivalence, it can be made very clear that they should go on the courses. So, even though I moved the amendment, I believe that the decision on whether to make it compulsory should be a judicial one.

As I have said, this has been a wide-ranging debate and I too will read the response of the Minister and the contribution of the noble Lord, Lord Paddick, very carefully. I beg leave to withdraw the amendment.

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[Baroness Burt of Solihull (LD) [V]]

My Lords, I too was delighted to add my name to this amendment. The noble Baroness, Lady Finlay, has already made an excellent case for why all child contact centres should be accredited, and I will not detain the House by repeating those arguments.

I have some difficulty understanding why the Government are reluctant to accept the case for all child contact centres to be accredited. It is not a cost to them, after all, and even if there were a cost attached, I would argue it would be worth it. This is the only example of a child service that does not require universal accreditation or regulation. But it places the child in a potentially dangerous and damaging situation because they may not be supervised by trained staff in an appropriate and consistent environment.

The Government, in a letter to the National Association of Child Contact Centres, confess to not knowing about the nature and extent of unaccredited child contact centres. So, they do not know the size of the problem or the standards that these centres are operating at. Of course, accreditation does not guarantee a child’s or a parent’s safety, but it would ensure safeguarding risks are accounted for. There would be quality and consistency in all child contact centres. We know that children, as well as mothers, get killed. Why on earth would we take the risk of having untrained staff manning unaccredited child contact centres?

The courts and Cafcass should refer children to accredited centres. We have the noble and learned Baroness, Lady Butler-Sloss, to thank for that. If an accredited centre is good enough for these children, why should it not be good enough for every child? Would the Minister reflect, before he responds, on whether he is willing to take the risk?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Baroness, Lady Finlay of Llandaff, for introducing this amendment and I recognise, of course, the reasons why she has tabled it. This has been a short but extremely valuable debate on a crucial part of the architecture of the law in this area. I am afraid that I cannot confirm to my noble friend Lady McIntosh of Pickering that I came across cases like this in my practice but I can confirm that, when he sat as a judge, my father always told me that family law cases, which raised issues such as we have been debating this evening, were the most important and often the most difficult that he came across.

I suspect that there is a broad measure of agreement across the Committee. We all agree that the provision of child contact centres is extremely important in supporting families and enabling parents to have contact with their children, while providing a safe environment that protects children and adults from potential harm. When moving her amendment, the noble Baroness made three points of principle from which I do not demur at all: first, the courts must always give careful consideration to the circumstances of each case; secondly, the child must be at the centre of the debate and the focus of what is going on; and, thirdly, we must have high standards. There is nothing between us on any of those points. As the noble Lord, Lord Ponsonby, set out from his personal experience—magistrates are not professional but, given the amount of time that the noble Lord puts into it, I ought perhaps to have said his professional experience—and, as we accept and know, the National Association of Child Contact Centres, the NACCC, as the sole accreditor of such services in the private law sector, provides an invaluable service, and the same high standards are required in the provision of services in the public law sector.

That said, I question whether statutory accreditation of all child contact centres is, in fact, the best mechanism to achieve the objective of the amendment: namely, to ensure domestic abuse protections as well as the maintenance of safeguarding for children and families. The family court cannot refer families to a non-accredited child contact centre as part of a child arrangements order. In private law cases, a traditional protocol has been in place for nearly two decades, guiding courts to refer families to child contact centres and services which are members of the NACCC and therefore subject to agreed national standards and an accreditation process.

Since 2018, Cafcass and the NACCC have established a memorandum of understanding under which Cafcass will refer to and commission only NACCC-accredited centres and services. Cafcass will therefore not advise any parent to attend a non-accredited centre or use non-accredited services. As set out by the noble Lord, Lord Ponsonby, the Government are keen to work with the NACCC to improve information and signposting to accredited child contact centres as part of an improved range of information and support for both separating and separated parents. In so far as local authorities are concerned, in discharging their statutory obligation under Section 34 of the Children Act 1989—to promote contact between children and their parents and other family members, including siblings and grandparents—local authorities are already subject to legal, inspection and accountability frameworks to protect and safeguard children in their care.

I recognise that local authorities increasingly outsource to external providers to deliver the service on their behalf. This is particularly the case when a local authority child contact centre might be in one location while the child has a foster care placement some distance away. Rather than requiring the child to travel a significant distance to undertake contact, the local authority may consider it to be in the child’s best interest to remain at a location closer to their home. This means that the local authority may outsource a provision to an external provider to deliver the contact on the local authority’s behalf. I hope that provides one answer to the question put to me by the noble Baroness, Lady Burt, as to why the Government do not accept the amendment.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Baroness, Lady Jones of Moulsecoomb. It was not my intention to be specious. I was trying to be accurate and constructive. I have already said that I will engage with the noble Baroness, Lady Finlay, if she provides evidence that there is a systemic problem with the current arrangements that cannot be resolved by the existing mechanisms. That was a genuine offer. I am sure that the noble Baroness will take me up on it. I will be very happy if she does.

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

My Lords, the Minister has invited comments about potential systemic problems. I draw his attention to one group of cases which he did not refer to: people who self-refer to contact centres. They are not sent there by social workers or by the courts, but are self-referring for their own reasons—trying to sort out the issues themselves. They could easily end up at unregulated contact centres, which may well be cheaper, so if the noble Lord is looking for systemic problems, I suggest that this may well be one.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Lord, Lord Ponsonby, for that point. As I said in my response to the main debate, even unaccredited centres are still subject to the various requirements that I set out, but I am very conscious of the noble Lord’s expertise in this area. In a previous answer, I committed to writing a long letter to him. I do not want to add to it now, but perhaps he and I can have discussions, with the noble Baroness, Lady Finlay, which include the point he raises. I hope that is helpful.

[Baroness Finlay of Llandaff (CB) [V]]

I am most grateful to the Minister for his response, and for saying that he will meet me and, I hope, the other noble Lords who have put their names to this amendment and whose experience is extremely important. I find it difficult to understand why the Government do not want to close this loophole. It seems terribly important to ensure that there is adequate safeguarding of children. I have a real worry that the commissioning process is more likely to fail now that there are increasing pressures on local authorities, and that the need to ensure accreditation has become even greater. Sadly, in some areas, the local authority does not have a great deal of choice as to the services that are there, so I would question the flexibility to pick and choose implied in the Minister’s response. I will certainly make every effort, with those who have co-sponsored the amendment, to get as much data as we can for him.

As the noble Baroness, Lady McIntosh of Pickering, who certainly knows more about this than any of the rest of us, highlighted, this is the only service which is not nationally accredited. This seems remarkably dangerous. The noble Lord, Lord Ponsonby, rightly pointed out that it is self-referrers who may use centres that are not accredited, and they will quite often have alcohol, drug or other problems they are trying to sort out. How they behave towards the children there must be observed carefully by people who know what they are looking for and have been properly trained, and where the whole service has been assessed against some standard criteria. In terms of the commissioning process, I would have thought that it would help local authorities to have those standards against which to check the services that they have on their patch and that they may be putting money into.

As the noble Baroness, Lady Burt of Solihull, pointed out, in a way it is completely at variance with the whole principle of the Bill if we do not include an amendment, with either this wording or something similar, in the Bill. The whole Bill is aimed at decreasing domestic abuse and protecting people from further abuse. It is not meant to be a straitjacket; it is meant to be a really supportive framework. However, if we do not have high standards in that framework, I fear that some of the most vulnerable—that is, the children—will drop through the gaps and we will see more children getting killed.

While for the moment I will withdraw the amendment —I am grateful for the support of everyone, including the noble Baroness, Lady Jones of Moulsecoomb—I think we will need to come back to this at a later stage. I look forward to meeting the Minister. In the meantime, I beg leave to withdraw the amendment.

Domestic Abuse Bill

Lord Wolfson of Tredegar Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 3rd February 2021 Lords Chamber

[Lord Rosser (Lab) [V]]

My Lords, I can be very brief in the light of what the two previous speakers have said on this amendment.

The purpose of this group of amendments, and a later group, is simply to provide consistency of protection for victims and survivors of abuse, across both the family and civil courts. These amendments would replicate in the civil courts protections that the Government already agree are needed in the family court. This seems an exceptionally reasonable ask. We support the aim of and reason for the amendments, as set out by the noble Lord, Lord Marks of Henley-on-Thames. I will be interested to hear from the Government why they have chosen to draft the Bill with this distinction between the courts.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, explained, these amendments seek to bring the procedure relating to special measures in civil courts in line with the provisions in family courts. We agree with the fundamental aim set out by the noble Lord: to ensure fair proceedings, meaning proceedings that are fair not only to the parties but to witnesses.

In that context, the Government’s starting point when considering the experience of vulnerable witnesses in the civil courts stems from the independent inquiry into child sexual abuse, which published its interim report and recommendations in April 2018. The inquiry recommended

“that the Ministry of Justice provides in primary legislation that victims and survivors of child sexual abuse in civil court cases, where they are claiming compensation in relation to the abuse they suffered, are afforded the same protections as vulnerable witnesses in criminal court cases.”

As the inquiry put it, this was to ensure that victims and survivors of child sex abuse can provide the best evidence in civil court cases.

While the Government had some sympathy with the recommendation, we also agreed that the issues raised by this recommendation needed further consideration, including whether it was right in principle to extend the protections to other vulnerable witnesses. The Government therefore sought expert help from the Civil Justice Council, which was asked to consider the vulnerability of parties and witnesses in civil actions, not just in relation to claims arising from sexual assault or abuse but more widely. The Committee will be aware that, after extensive consultation and expert input, the Civil Justice Council published its report in February last year. It conceded that there was no single or coherent set of rules in the Civil Procedure Rules dealing with vulnerability in the same way as there was in the Family Procedure Rules.

In this context, we must remember an important point, to which the noble Lord, Lord Marks, alluded. Civil cases, by their nature, have the potential to cover a much broader range of circumstances where there is no prior close connection between the parties; for example, where a victim is suing an alleged perpetrator of sexual abuse or in an action against the police or an employer where abuse is alleged. Of course, I take on board the noble Lord’s examples of cases where the parties may be corporate but, none the less, there are individual witnesses who are victims.

Having considered the matter, and in relation to special measures, the Civil Justice Council report did not go as far as recommending that it should be enshrined in primary legislation. Rather, it was felt that it was best left to the flexibility of court rules since—this is an important point—judges in civil proceedings already have inherent powers to order the provision of special measures under the Civil Procedure Rules when it is considered necessary. However, the Government took a slightly different view, taking the recommendations that came from the independent inquiry into child sexual abuse, which I have already mentioned.

As the Civil Justice Council report highlighted, vulnerability in the civil courts is not limited only to victims of domestic abuse. Some people may have mental or physical conditions that render them vulnerable and hamper their access to justice. Others, as with victims or survivors of abuse, may be vulnerable solely by reason of the subject matter of the proceedings before the court. This, as the report suggested, may affect their ability to participate in proceedings or give their best evidence.

We want to avoid—this is a risk—unnecessarily prolonging cases because of satellite litigation which revolves around the granting of special measures where the case is not contingent on vulnerability. At the same time, as I said, we need to ensure that the justice system is fair—that is, fair for all. Therefore, we must be careful to focus this provision on only the circumstances in which it is needed.

Even though the approach is different in civil courts, judges in civil proceedings already have inherent powers to order the provision of some special measures under the Civil Procedure Rules when it is considered necessary. I hope that this goes some way towards addressing the concern of the noble Lord, Lord Marks, which was shared by the other two speakers in this short debate; I acknowledge their contributions, of course, but I think it is fair to say that they largely agreed with the approach taken by the noble Lord. In that context, the Civil Procedures Rule Committee continues to examine the issues faced by vulnerable witnesses in civil courts.

While we want to ensure parity between each jurisdiction, we also need to build in allowances for the differences—and there are differences—between them. This is why the provisions in respect of cross-examination and special measures in civil cases differ from those in family proceedings.

In the light of my discussions with the noble Lord, Lord Marks, and others, and in the light of all the contributions in this short debate, let me say—in clear terms, I hope—that we very much appreciate the arguments raised in relation to fairness and the concerns around availability of special measures for those who will need them in the civil courts. We will consider this issue carefully ahead of Report and continue to listen to arguments. Of course, I remain open to discussion with both the noble Lord, Lord Marks, and others.

In the light of that confirmation and undertaking, I hope that the noble Lord will be content to withdraw his amendment.

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

My Lords, first, let me say how grateful I am to the noble Lords who spoke.

It was interesting to hear my rather dry opening supplemented by the personal experience of the work of the noble Baroness, Lady Bennett of Manor Castle, in courts in Australia. She made the valuable point that, generally speaking, litigants and witnesses are not used to being in court—it is a new experience for them and this adds to their concern, which is of course amplified in the case of vulnerable witnesses and parties. She also gave the interesting and important example of family farms giving rise to very personal disputes, where there is often a background of abuse. I am bound to say that, in my years of practice on the Western Circuit before doing more of what I do now, disputes about family farms were endless. They are to be taken into account. I am grateful to the noble Lord, Lord Rosser, for his support as well.

The Minister has given a considered response and ultimately made an undertaking to me and others. I am grateful for the way he has dealt with the amendments. However, I am bound to say that nothing I heard from him justifies the distinction to be drawn between the protection afforded in family proceedings and the protection available in civil proceedings. I got the impression that he understands the reasons why we have disputed that distinction.

I do not accept that a system based on the Civil Procedure Rules for protection in civil proceedings is anything like as good as a system based on statute, as the arrangements in family proceedings will be following this Bill. If a statutory arrangement is good enough for family proceedings and is applicable as appropriate for those, I would suggest that it is appropriate for civil proceedings as well. Nor do I accept that there is a realistic prospect of satellite litigation arising regarding the availability or withholding of special measures. That seems most unrealistic and, in any event, even if it were realistic, it would be no more realistic in a set of measures based on legislation than it would be presently in a set of measures based on the uncertain application of the rules of court. I welcome the Minister’s commitment to further engagement. I regard this as a very important issue, and I will of course speak to him, as no doubt will others, between now and Report in the hope of achieving agreement. I beg leave to withdraw the amendment.

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[Lord Paddick (LD) [V]]

My Lords, I agree with the comments made by the noble Baroness, Lady Redfern, in a broader context. On the particular issue in this group, I have listened very carefully to the case made by the noble Lord, Lord Rosser, reinforced by the noble Baroness, Lady Newlove. The noble Lord talked about a risk assessment before cross-examination if someone has a history of abuse. Presumably he is referring to somebody with a history of abuse but whose convictions are spent under the Rehabilitation of Offenders Act. The noble Baroness, Lady Newlove, talked about repeat offenders. Repeat offending is very common when it comes to domestic abuse, but I wonder whether a perpetrator with a history of abuse, a repeat offender, is less likely to have spent convictions or cautions.

The Rehabilitation of Offenders Act is an important piece of legislation that allows offenders to move on from their previous offending, but my understanding is that if a court decides that justice cannot be done without the conviction or caution being taken into account, the court can take account of a spent conviction. This potentially means that a court could prevent cross- examination of a victim of domestic abuse if it decided that a spent conviction or caution was relevant.

I look forward to hearing the Minister’s understanding of the legislation as it is. We have no objection to the Government’s amendments in this group.

[Lord Wolfson of Tredegar (Con)]

My Lords, I will begin with the amendments tabled by the noble Lord, Lord Ponsonby, to which the noble Lord, Lord Rooker, so ably spoke, and will then turn to the government amendments, which deal with various technical and drafting changes to the same clause.

As has been explained to the Committee, Amendment 114, in the name of the noble Lord, Lord Ponsonby, would remove a qualification of the automatic prohibition on cross-examination in family proceedings by those convicted of, cautioned for or charged with specified offences, and their cross-examination by the victim or alleged victim. The removal of this qualification would mean that spent convictions and cautions under the Rehabilitation of Offenders Act 1974 would continue automatically to trigger the prohibition, irrespective of how old they may be or how circumstances might have changed. I respectfully agree with the noble Lord, Lord Paddick, that the Rehabilitation of Offenders Act is a very important provision. It enables a line to be drawn and people to move on.

It is in that context that, at the moment, the form of the Bill is that spent convictions and cautions should automatically trigger the prohibition only where evidence in relation to the conviction or caution is admissible in relation to the current family proceedings. However, as the noble Lord, Lord Rosser, reminded us, and as the Government fully acknowledge, the damage caused by domestic abuse may often last for decades, sometimes a lifetime, and well beyond the point at which a conviction or caution is spent. One must also consider the point made by my noble friend Lady Redfern, that the court process is daunting, especially for victims of abuse. Therefore, the noble Lord, Lord Rosser, is right to test the adequacy of Clause 63 in guarding against cross-examination which remains inappropriate despite convictions or cautions being spent. I am sure that all Members of the Committee will have been moved by the personal testimony of my noble friend Lady Newlove, when she explained the effect that such cross-examination can have.

However, the Government believe that Clause 63 provides adequate protection in such circumstances. We must bear in mind that the automatic prohibition on cross-examination is also triggered where a protective injunction is in place—that is the force of the new Section 31S—or where prescribed evidence of domestic abuse is provided to the court; that is the force of the new Section 31T. Moreover, and of greater importance here, given the sometimes more historical nature of abuse, is what we intend should become Section 31U of the Matrimonial and Family Proceedings Act 1984. This is an important provision, which provides context against which the noble Lord’s amendment should be considered.

New Section 31U is in deliberately broad terms and provides for a wide discretion to meet the particular facts and circumstances of the case before the court. It enables the court, either in response to an application or of its own motion, to prohibit cross-examination where it would diminish the quality of evidence or cause significant distress, so long as to do so is not contrary to the interests of justice. Any such direction will remain in place until the witness is discharged, unless it is revoked by the court in specified circumstances; for example, if circumstances have materially altered. Therefore, to answer the point made by my noble friend Lady Newlove, we consider the Bill sufficient in cases of spent convictions, because that provision enables the court to impose the ban if it appears to the court that the two conditions in new subsection 1(b) are met. That provision would therefore also deal with the point made by the noble Lord, Lord Rosser, concerning cases of past injunctions or restraining orders. New Section 31U is a very broad provision that enables the court to respond to the facts of a case and ensure that a suitable order is made. I agree with the noble Lord, Lord Paddick, that it is important that the court has this ability, for the reasons that I have set out, under new Section 31U. I hope that this gives the Committee, particularly the noble Lord, Lord Rosser, what they sought, which, according to my note, was clarity and assurance. I hope that I have provided both.

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Moved by

[Lord Wolfson of Tredegar]

115: Clause 63, page 41, line 20, after “conviction” insert “by or”
Member’s explanatory statement
This amendment makes a minor drafting change.

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

My Lords, we support this amendment for the reasons given by the noble Lord, Lord Rosser, as amplified by the noble and learned Lord, Lord Mackay, my noble friend Baroness Hamwee and the noble Lord, Lord McConnell of Glenscorrodale.

This amendment recognises that in cases involving domestic abuse, just as in any litigation, engagement between the parties is not limited to conducting the case, giving evidence, cross-examining witnesses and making submissions to the judge. The noble and learned Lord, Lord Mackay, pointed out that the inadequacy of arrangements that govern cross-examination alone make such arrangements difficult to justify.

There is often a need for the parties to consider and discuss the conduct and progress of the case, as the noble and learned Lord, Lord Mackay, pointed out. That is usually done through their advocates. Yet when the parties are perpetrator and victim of domestic abuse, and are unrepresented, the need for engagement can become an occasion for intimidating behaviour or bullying of the victim by the perpetrator. That need not even be deliberate, though it often is. Even if intimidation is not explicit in court, it may be effected by implied threats of what might happen later, or even by fear on the victim’s part—even if without justification —of what might happen later.

As discussed in earlier groups, the mere presence of the parties together in court can cause distress, intimidation, or trauma to victims. The outcome can be that victims are deterred from bringing proceedings at all. The experience of the proceedings can be grossly traumatic, to the extent of causing lasting harm, and just outcomes can be made that much more difficult to achieve. So, it is completely right that the court should be able to prohibit engagement by a party that unduly distresses the victim in the way set out in this amendment, whether that engagement be direct by the perpetrator or indirect through others. Yet, if the parties have no means to engage at all, there may be opportunities missed for resolving conflict or, at least, for making the issues clearer and enabling the court to achieve safer outcomes.

In cases where the parties are not represented, it is obviously sensible for there to be provision for representation to be arranged. As the amendment proposes, that should involve, in appropriate cases, the instruction of a court-appointed lawyer—not just for the perpetrator but for the victim as well. That is what the amendment proposes and I firmly believe it is right to do so. For my part, I believe that justice would be best done by ensuring that full legal aid is available for both parties to domestic abuse proceedings throughout those proceedings, which often last through several hearings, as the noble Lord, Lord Rosser, my noble friend Baroness Hamwee and the noble Lord, Lord McConnell, have said. The noble Lord, Lord McConnell, also highlighted the real risk of deterring litigants from bringing or pursuing proceedings once they are under way, by the absence of arrangements for representation.

This amendment does not go as far as we would like, but I know many noble Lords believe that full legal aid for both parties should be the outcome. Meanwhile, it would fill an important gap by preventing intimidation of victims by perpetrators during the course of proceedings, while keeping the door open to engagement between lawyers, which may smooth a path to resolution.

[Lord Wolfson of Tredegar (Con)]

My Lords, as the noble Lord, Lord Rosser, has explained, this amendment —to which my noble and learned friend Lord Mackay of Clashfern has added his, if I may respectfully say, very weighty name—seeks to expand the scope of the prohibition of cross-examination provided for in Clause 63 by prohibiting the perpetrator from engaging directly or indirectly with the victim during proceedings where that engagement would cause them significant distress. It goes on ultimately to provide for the potential appointment of a legal representative, chosen by the court, to represent both parties to ensure a fair process in the interests of justice in such cases. I can assure the Committee, in particular in response to the points made by my noble and learned friend Lord Mackay of Clashfern and others, that because this amendment has been supported by the Magistrates’ Association, we have given it very careful consideration.

As the noble Baroness, Lady Hamwee, explained, I am as every bit as concerned as her, and indeed the noble Lord who is proposing the amendment, to ensure that domestic abuse victims are adequately protected in the family courts. It is for that reason that the Government are already taking decisive steps to act on the recommendations of the Expert Panel on Harm in the Family Courts, in response to which we published our implementation plan in June 2020.

The Bill contains various measures designed to protect domestic abuse victims in family proceedings and across the other jurisdictions. In that context, I bear in mind the point made by the noble Lord, Lord McConnell of Glenscorrodale: the human impact that domestic abuse has, and that it can require some bravery to go to and appear in court in those circumstances, a point also made by the noble Lord, Lord Marks. Therefore, within the court environment, our provisions on special measures made it clear that the victims of domestic abuse and other parties or witnesses are eligible for special measures such as a screen during proceedings, where the court is satisfied that the quality of their evidence is likely to be diminished due to their vulnerability. In that context, on the point put to me by the noble Lord, Lord McConnell of Glenscorrodale, regarding the position of children, Clause 3(2) provides that any reference in the Bill to a victim of domestic abuse

“includes a reference to a child who … sees or hears, or experiences the effects of, the abuse, and … is related to A or B.”

Therefore, the Bill is structured very much with victims of domestic abuse, who may include children, firmly in mind.

It is not entirely clear from the noble Lord’s amendment whether the intention is that “direct or indirect engagement” during proceedings be confined to the court setting, by which I mean what goes on in the courtroom itself, or extend more widely for their duration, as set out in debate by my noble and learned friend Lord Mackay of Clashfern and repeated by the noble Lord, Lord Marks of Henley-on-Thames. There is often a need for what my noble and learned friend called personal and direct contact between parties in such proceedings. In that regard, one must bear in mind that under Part 3 of the Family Procedure Rules 2010, the court can make a participation direction. That can include the use of special measures, which are a series of provisions to help a party or witness to participate or give evidence in court proceedings. That is a range of measures available both to parties and witnesses to enable them to participate in an appropriate manner.

Beyond that, the courts have a range of protective orders, such as non-molestation orders and restraining orders, that can be made to protect victims when they are not within the confines of the court building. In addition, when introduced by the Bill, domestic abuse protection orders can be used to protect victims of domestic abuse outside the courtroom during proceedings. That is because the DAPO brings together the strongest elements of the existing protective orders into a single comprehensive and very flexible order that we believe will provide more effective and longer-term protection than the existing protective orders for victims of domestic abuse and their children. I underline the point that there may be circumstances in which children are also victims. So, for example, if children are giving evidence inside court, special measures may well be applicable and the prohibition on cross-examination may also apply.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Lord, Lord Marks, for setting out the rationale for these amendments. As he said, I deferred my comments on the particular point of an advocate’s duty to this group because his amendments directly raise that issue. I am grateful to him for the discussions we had about this matter, as indeed we have had about several matters arising from the Bill.

Amendments 122 and 127 would have the same effect in relation to a qualified legal representative appointed by the court to conduct cross-examination in family and civil proceedings respectively. It is the Government’s intention that such a court-appointed representative is not responsible to any party. They are, in effect, appointed by and responsible to the court in relation to their conduct of the cross-examination, having regard to guidance issued by the Lord Chancellor in connection with this role under what we intend should become Section 31Y(1) of the Matrimonial and Family Proceedings Act 1984.

As I think the noble Lord, Lord Marks, accepts, the amendments would alter fundamentally the representative’s role by making them responsible to the party who has been prohibited from carrying out such cross-examination. While the tabled amendments contain safeguards to counter the resulting tension between being responsible to the prohibited party on the one hand and needing to protect domestic abuse victims on the other by requiring the representative to have regard to protective directions issued by the judge, this does not affect the Government’s view that, as a matter of principle, the representative who has been appointed by the court should not be responsible to the party. That is particularly the case when that party could have, but has not, appointed his own lawyer. Had he done so, a court-appointed lawyer would not have been required and the lawyer appointed by him would have owed him a duty.

Therefore, the Government do not want this to become a client-lawyer relationship. The advocate is appointed for only one function: to ensure that the best evidence is obtained fairly from the witness in cases where the party is prohibited from conducting the cross-examination by themselves. Altering this and introducing such a relationship between the party and the advocate would, in the Government’s view, be a mistake.

The rules pertaining to the advocate scheme will be set out in statutory guidance and relevant procedural rules. Consistent with what I have been explaining to the Committee, the focus will be on ensuring that the function of a cross-examination is carried out—that the witness is questioned on the evidence that they have provided. Before these provisions are commenced, we will work with relevant stakeholders to develop and finalise statutory guidance, to be issued by the Lord Chancellor, for the appointed legal representatives to assist them in discharging this role. We will work with the appropriate rule committees to develop suitable court rules and practice directions to provide a clear structure and process for the operation of these provisions.

For those reasons, we take issue with the proposal in the amendment. Although I hear what the noble Lord, Lord Marks, said about SIAC and court-appointed advocates there, those are completely different circumstances and there is no read-across from SIAC to these provisions. The way that the Bill is set out reflects the Government’s deliberate intention and the clauses have been designed with this in mind.

The framework for the provision of publicly funded legal representation is set out in the LASPO Act. While I have listened carefully to the arguments made on this point, both today and in previous discussions, I do not agree that we should mix the different purposes of LASPO and these clauses as has been proposed. As anticipated by the noble Lord, Lord Marks, I refer to the review that I mentioned in the last debate.

Amendments 123 and 128 relate to the provision of legal aid. Legal aid is available for family cases where there is evidence of abuse, subject to domestic violence, or child abuse evidence requirements, and the relevant means and merits tests. We have expanded the acceptable forms of evidence and removed all time limits on providing that evidence. As I have said, we are also reviewing the means test. The Government are clear that victims of domestic abuse must have access to the help that they need, including to legal aid. The review of the means test is assessing the effectiveness with which that test protects access to justice. As I said in the last debate, we are specifically considering the experience of victims of domestic abuse. I will not repeat the other points I made in that context in the previous debate.

However, legal aid may also be available through the exceptional case funding scheme, where a failure to provide legal aid would breach or risk breaching the ECHR or retained enforceable EU rights. As I have explained, the Bill includes provisions that give the court a power, in specified circumstances, to appoint a publicly funded legal representative to conduct cross-examination. Where a prohibition on cross-examination applies, the court would first consider whether there are alternatives to cross-examination and invite the party to appoint a legal representative to conduct the cross-examination. In circumstances where the party does not, the court considers whether it is in the interests of justice so to appoint. Therefore, publicly funded legal representation is intended to conduct the cross-examination, but not to go beyond it. That is the sole reason why the advocate is appointed.

In that context, we must appreciate the need to protect against unnecessary expenditure of public funds or alteration of the legal aid regime without a wholesale and proper examination of the ramifications of doing so. In circumstances where this provision for a publicly funded advocate is put in the Bill for a limited and specific—if I can still use that phrase—purpose, it would be wrong in principle for us to conduct a review of legal aid provisions in Committee.

I fear that I may not have been able to persuade the noble Lord, as I was not able to persuade him earlier, of the merits of the Government’s approach. I am sure he will tell me that I have not, but I hope that I have been able to explain the Government’s approach and thinking on this issue. In those circumstances, I invite him to withdraw the amendment.

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

My Lords, unquestionably the Minister—to whom I am very grateful, for both his engagement and his considered and careful response—is right about one thing, which is that he has not convinced me of the difference in responsibility to the client between court-appointed advocates and normal lawyers. I accept that the role of legal representative would be altered by my amendments, and that is all to the good.

One point made by the Minister can be considered in a way that he did not. It is a precondition to the appointment of a legal representative by the court that the client or party who would have conducted the cross-examination, but for the prohibition, should have been given the opportunity to instruct his own lawyer. That lawyer would have had full responsibility to the client in the normal way—full duty of care, answerable in negligence and everything else. Generally, Members of the House will appreciate that the reason that that condition is not often met—in other words, the client does not appoint a lawyer—is lack of funds, not that he or she, usually he, does not wish for the lawyer to have a responsibility to the client. There is very little distinction to draw between the two cases, apart from the fact that the rich client gets the lawyer and the poor client has a court-appointed lawyer.

The Minister referred to the safeguards that I built into the amendments in their directions to the judge—

“such directions as the Court may give to protect the witness from significant distress or to prevent the quality of the witness’s evidence from being diminished.”

There may be further room for discussion about those directions and the guidelines within which cross-examination by a lawyer with a responsibility to the client could take place. I will carefully read the guidance that he mentions by which court-appointed lawyers will conduct their cross-examinations.

I completely reject the Minister’s explanation that SIAC involves different issues, as a justification for removing the responsibility. It is precisely because SIAC special advocates and their appointment involve different issues that the responsibility is removed. I explained that in opening. That point does not seem to have been treated with full understanding.

Of course I will withdraw this amendment to enable further review. The point about legal aid is one of accessibility. We know that there is a review under way and I accept that we should not be reviewing this question in Committee, but the problem is one of evidential and financial accessibility. Until both parties can be represented in domestic abuse proceedings, it is difficult to see that proper representation will be achieved. With those points, I beg leave to withdraw the amendment.

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I will be rejecting these amendments. The civil courts are distinct and different. Treating people who may well have been victims as perpetually victims in all instances does them no favours whatsoever.

[Lord Wolfson of Tredegar (Con)]

My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, has explained, these amendments intend to bring the provisions relating to prohibition of cross-examination in civil courts into line with the provisions on the same measure in family courts. As the noble Lord explained, we have covered some of the questions of principle already in earlier groups. He indicated that he was therefore going to be brief—as he indeed was—and I hope that both he and the Committee will not take it as any disrespect if I am equally brief in response, given that we have canvassed the points of principle already.

The noble Baroness, Lady Bennett of Manor Castle, described herself as a “support act”, an appellation with which I respectfully but firmly disagree. She spoke eloquently in an earlier group of her personal experience of seeing how court procedures operate in cases involving domestic abuse, and her contribution to this short debate has been equally valuable. I hope that the noble Baroness, Lady Fox of Buckley, will forgive me if I gently point out to her that she should not apologise for not being a lawyer. What is apparently, based on my short time here, a repeated cause for apology in this House is generally regarded as a badge of honour everywhere else.

Turning to the substance, let me explain that the approach we have taken in civil cases differs from that taken in family proceedings for good reasons. The clause dealing with banning cross-examination of vulnerable parties or witnesses stems from the report by the Civil Justice Council, to which the noble Lord, Lord Marks, also referred, and which I spoke about when commenting on the amendments to Clause 62.

The council recommended that the prohibition of cross-examination by a self-represented party should be extended to cover civil proceedings, thereby ensuring some parity with the criminal and family jurisdictions. Importantly, however, the Civil Justice Council cautioned that the ban or prohibition should not be absolute: rather, it should be left to the court’s discretion, given that, as I explained in an earlier group, the civil and family jurisdictions are very different as regards the types of cases, with the civil jurisdiction having a much wider range. As I also said earlier, those cases can have a much broader range of circumstances, where there is no prior close connection between the parties, as there would generally be in the family courts. We have therefore tailored our approach to allow for those differences, which is why the provisions in respect of cross-examination in the civil jurisdiction differ from those in family proceedings. I hope that that explains my thinking to the noble Lord, Lord Marks.

In response to points made by the noble Baronesses, Lady Bennett of Manor Castle and Lady Fox of Buckley, I say it is important that two things are fundamental. First, it is important that protection is available to all witnesses who need it—this was the point made by the noble Baroness, Lady Bennett. In response to the point of the noble Baroness, Lady Fox, the court will of course look at all circumstances in that regard. The overriding concern is to ensure that justice is done in the particular case, which is why leaving it to the discretion of the judge in an individual case to decide when a ban is necessary is based on an unlimited range of factors, including, obviously, the views of parties to the proceedings, any past convictions or the behaviour of parties during the trial. That is how we suggest this matter is best resolved.

Having said all that, I respectfully say that the noble Lord, Lord Marks, has put forward, as one would expect from him, a cogent and well-argued case for his amendment. As such, while we consider that the approach taken in the Bill in relation to the civil courts is well founded, and certainly not—to use a word adopted earlier in this debate—illogical, I hear the arguments he put forward and undertake to consider these amendments further ahead of Report. I will continue to listen with interest to any arguments made by him or others in this regard. Therefore, given this undertaking, I hope that the noble Lord will be content to withdraw his amendment.

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

My Lords, once again, I am grateful to all noble Lords who have spoken in this debate. I certainly agree with the noble Lord, Lord Wolfson, that the noble Baroness, Lady Bennett of Manor Castle, has proved herself much more than a support act. I say to her and the noble Baroness, Lady Fox of Buckley, that there is a crying need in these legal debates for experience from outside the law to inform our debates and bring the lawyers down to earth.

Many noble Lords may well have formed the view that the differences between the noble Lord, Lord Wolfson, and me are arcane legal arguments, in some senses—but we can only have those arcane arguments in a relevant way if we have real-world experiences to back them up. Some of these will be ours, but the noble Baroness, Lady Bennett of Manor Castle, not only clearly demonstrated how the principles that apply to cross-examination in civil proceedings also apply in family proceedings; she also graphically described the personal experience of witnesses in court proceedings. I challenge anyone to explain why that experience differs between the two types of proceeding, where witnesses are, or are liable to be, victims of domestic abuse and are vulnerable.

Although I greatly valued the contribution of the noble Baroness, Lady Fox of Buckley, I do not agree with her that this legislation or these and other amendments overstate the significance of vulnerability or trauma, when the evidence is serious and extensive of how deep vulnerability can go, how serious the trauma can be and how long-lasting it can be as a result of domestic abuse. That is the reason why the Government have brought this Bill; it is why it is widely welcomed around the House and the reason for the protections that are afforded to witnesses and parties in court proceedings.

I come to the noble Lord, Lord Wolfson, who frankly accepts the differences and parallels between us in respect of cross-examination in cases of special measures. I do not accept that a discretionary system in relation to the prohibition of cross-examination is an acceptable substitute. One of the principal reasons for this is that a party or witness has no assurance that there will be a prohibition in a discretionary case. She—or, in some cases, he—is totally reliant on judicial discretion having regard, as the Minister says, to all sorts of other factors, including previous convictions and all the circumstances of the case, in relation to knowing whether a prohibition of cross-examination will be extended. This means that such a witness or party is exposed to the risk that there will be direct cross- examination, which they may well be unable to face.

I am very grateful to the Minister for his undertaking that he will consider these amendments further; I know that that undertaking is given with every intention that he will do so. I and others remain completely open to discussing these amendments with him and refining them if necessary, but we hold the basic belief that vulnerable witnesses need protection from direct cross-examination on exactly the same basis in civil cases as is to be extended in family cases. Saying that, I beg leave to withdraw Amendment 124.

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[Baroness Burt of Solihull (LD)]

My Lords, there has been a varied response to the Bill. What has come out of it is that nothing is as simple as it might appear in situations of the kind described. The somewhat harrowing example given by the noble Baroness, Lady Meacher, underlines that.

As we have heard, Amendments 130 and 130A seek to change the presumption that it is in the welfare of a child to have unsupervised contact when one parent has either a domestic abuse conviction or court proceedings against them. The noble and learned Baroness, Lady Butler-Sloss, told us that she does not like presumptions and that we need to consider all the circumstances—that has certainly come out of this afternoon’s debate.

As we know, the presumption of the courts is that it is in the welfare of the child for both parents to have access now, everything else being equal. However, when one parent is accused of abusing or has abused the other parent or the child, or they are subject to a Crown prosecution case, everything is most decidedly not equal. We have discussed enough times during the course of the Bill just how difficult and stressful a domestic abuse situation can be for a child, who can be used and abused as a pawn between warring partners. And it can get far, far worse than that.

Several noble Lords used statistics to back up this argument. Mine come from the charity Refuge, which, in partnership with a Sunday Mirror journalist, conducted an investigation which found that, between 2004 and 2019, 63 children were killed at the hands of a domestic abuse perpetrator who had contact with their children after being convicted of a serious criminal offence. Refuge reports that the actual figures of child harm are even higher, with many children dying from other causes, such as neglect. This is the danger of under- estimating the risk that perpetrators can pose to their children. It does not apply to all perpetrators, of course; many who have committed domestic abuse against their partners are different altogether with the children—a point another noble Lord made.

We should also consider how previous matters are taken into consideration. In particular, my colleague and noble friend Lord Marks gave an example of a previous situation in which domestic abuse took place, perhaps in a previous life. But domestic abuse still figures in that situation, so if an alleged perpetrator has a previous domestic abuse conviction, it would be better to be safe than sorry.

The noble Baroness, Lady Jones of Moulsecoomb, moved Amendment 130A, as an amendment to Amendment 130, which takes matters a little further to include fact-finding hearings in the family courts, which most commonly concern domestic abuse. In such hearings, it is for the person making the allegations to prove that they are true. The judge considers on the balance of probabilities whether the allegations are true or not. The presumption in Amendment 130 is therefore extended while the hearings take place. I think it is better that, where there is a previous conviction, even with another partner in a different situation, it is still far better to be safe than sorry.

I hope that the Minister will be minded to consider these amendments carefully and, if necessary, make changes to make them a little better on Report.

[Lord Wolfson of Tredegar (Con)]

My Lords, as the noble Lord, Lord Rosser, has explained, Amendment 130, formerly in the name of the noble Lord, Lord Ponsonby of Shulbrede, seeks to make it clear that the presumption that parental involvement furthers the child’s welfare cannot apply where there is evidence of domestic abuse. It also seeks to prohibit unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences or where there are ongoing criminal proceedings for domestic abuse.

Amendment 130A in the name of the noble Baroness, Lady Jones of Moulsecoomb, extends this. It seeks to prohibit unsupervised contact for a parent pending a fact-finding hearing in family proceedings or where domestic abuse is alleged or is proven—either in such a fact-finding hearing or as the result of a criminal conviction for a domestic abuse offence.

Before proceeding, I hope the Committee will forgive me if I make two overarching points. First—and I say this respectfully, given my short time in this House—the debate we have just had shows the value and importance of Committee stage. A number of contributors have listened to and considered the points that have been made and, on occasion, have changed their position. There is nothing wrong with that. If I have one regret—and again I say this respectfully—it is that our PR means that the value of these Committees is not as well understood outside this House as it is within it.

Secondly, in the last debate, the noble Lord, Lord Marks of Henley-on-Thames, made the point that what seems an arcane legal matter to lawyers—and perhaps to others in this Chamber—is improved by real-world experience and examples. In this debate, contributions from the noble Baroness, Lady Jones of Moulsecoomb, and the noble Baroness, Lady Meacher, have done just that. I agree with the noble Baroness, Lady Meacher, that anecdote is not evidence and that we must have research. I will come to this issue later in my remarks. Hearing the case of an eight year-old girl unlocking the front door to catch a bus to get to her father’s house is a powerful example. The image of a child saying his last words to a fireman in a smoke-filled attic will stay with me, and rightly so. It reminds me that, although we are debating words on paper, they have consequences in the real world. I am sure that many, if not all, noble Lords will feel the same.

I have a great deal of sympathy for the aims of these amendments, and I agree that more needs to be done to ensure that the courts take proper account of the impact that domestic abuse can have on children’s well-being and safety. To that extent, I agree with the noble Baroness, Lady Jones of Moulsecoomb, that we should seek to remove stress from children, in so far as we can. That was why, late last year, following the recommendations from the Expert Panel on Harm in the Family Courts, the Government launched a review on the presumption of parental involvement. Importantly, the panel did not call for immediate legislative change. Instead, it recommended a full review. They were right to do so. As the noble Lord, Lord Rosser, said and as noble Lords will be aware, this review is under way. As the noble Baroness, Lady Meacher, said, it will give us important data, research and a considered analysis.

The review will focus on the presumption—and its exception—and the impact on children’s welfare of the courts’ application of these provisions. It will allow us to build a stronger evidence base and ensure that any changes brought about as a result are rooted in a solid understanding of the effect of the presumption and the associated evidence on child welfare. It would therefore be premature to amend the legislation relating to the presumption, including Section 9 of the Children Act—as proposed in the amendment—before gaining the in-depth evidence from the review.

It is worth highlighting that the current legislation on the presumption makes it clear that it should be disapplied where there is risk of harm to the child. This means that the risk of harm from a parent perpetrator of domestic abuse should already be taken into account by the courts. As the noble Lord, Lord Marks of Henley-on-Thames, reminded us, Section 1 of the Children Act 1989 makes the child’s welfare paramount. It should also ensure that courts consider the risk of a child suffering harm, or further harm, when deciding on any aspect of the child’s upbringing.

Some noble Lords asked how contact between a child and a parent who has committed domestic abuse, or against whom it has been alleged, could ever be in the best interests of the child. The short answer is that this is not an easy question, but it is for the courts to decide in each case, taking into account all the evidence presented to them. The noble and learned Baroness, Lady Butler-Sloss, has vast experience in this area. She gave us an example of such a possible case. She also made an important point about judicial training, which we shall come to in a later group.

In addition to my general point that this issue is catered for in the current statutory architecture, there are two further problems to which the amendments would lead. First, domestic abuse is only one of many circumstances which may impact on a child’s well-being and safety. By expressly referring to it, these amendments could be seen to give domestic abuse prominence over other valid considerations which the court should take into account in deciding whether such an order would be in the best interests of the child—for example, other sexual or violent offending, or a history of or allegations of child abuse. I say this without downplaying in any way the importance and effect of domestic abuse.

Secondly, as a number of contributors have said, the second part of the amendment would lead to an automatic ban. The court could not exercise discretion. If we legislate to create automatic bans on a particular form of contact, there may be concerns that we are not allowing courts to take sufficient account of whether there are risks to the child in the particular circumstances of the case. Risks and rights must be weighed carefully, allowing courts to assess each case on its merits. The noble Lord, Lord Marks, gave an example where, on the facts of the case, a court might want to permit contact.

Other noble Lords, who are not lawyers, have also contributed to this debate. My noble friend Lord Randall of Uxbridge summarised it very well—so much so that he led the noble Lord, Lord Rooker, to tear up his speech. This must be a rare, if not unique, occurrence. The noble Baroness, Lady Meacher, said it was “likely” that the court would reach such a conclusion. This is the point I am making: it may be likely, but we should not force the court to do so. We should not remove the court’s discretion. Ultimately, the court should make the decision, based on all the facts of the case. Furthermore, it is not clear from the terms of the amendment whether such bans, if they prevent unsupervised contact following a conviction or finding of fact, would or should be capable of being lifted or modified if the risks in an individual case materially change. I respectfully agree with my noble friend Lady Gardner of Parkes when she said that she was not persuaded that the amendment was necessary, and that it might have unintended consequences.

I also agree with the point made by the noble Baroness, Lady Burt of Solihull: that nothing is as simple as it first appears in this area of the law. There are risks on all sides in this area, so to speak. There are risks of contact and, as my noble friend Lady Altmann reminded us, there are risks in preventing contact as well. I therefore suggest to the Committee that the approach in the current legislation, which was identified and explained by the noble and learned Baroness, Lady Butler-Sloss, with, if I may respectfully say so, her customary clarity, is the correct one.

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The amendments in this group raise a number of difficult points of principle, and I and others will be extremely interested to hear what the Minister says in reply.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful to my noble friend Lady Bertin and the noble Lord, Lord Rosser, who have spoken to the amendments tabled by the noble Lord, Lord Ponsonby. The amendments relate, as has been said, to a number of different aspects of the family courts. I hope it will be convenient for the Committee if I take each amendment in turn.

I turn first to Amendment 131, tabled by my noble friend Lady Bertin, which, as she says, is a probing amendment. It recognises the crucial role of refuges in supporting victims of domestic abuse and their children. I must thank my noble friend for her time in being willing to discuss with me this amendment, and indeed others.

The amendment raises two important issues. I will first address that of the disclosure of the residential addresses of refuges. Existing legislation and family court procedural rules allow parties to apply to withhold their address and that of their children from other parties. There is therefore no requirement for those engaged in family court proceedings to disclose their address. During family court proceedings, when adequate information about the location of a child is not known to the court, the court can order any person who may have relevant information to disclose it. In those circumstances, details of the child’s address and who they are living with are disclosed only to the court, not the other parties, in the first instance. The court then determines how that information should be used. Where there are allegations of domestic abuse, the court can and does hold that information as confidential. The noble Lord, Lord Rooker, said that this was of critical importance and the noble Lord, Lord Marks, said it was essential, and I do not dissent from that.

Subsection (3) of the proposed new clause would prevent the service of a court order at a refuge’s residential address. I fully appreciate that victims living in a refuge are fearful for their safety, and that receiving or witnessing the service of an order at a refuge could be very distressing. In that context, I take on board the point made by the noble Baroness, Lady Hamwee, that one must bear in mind the position of other occupants of the refuge as well. In that context, therefore, the two cases illustrated by my noble friend Lady Bertin are concerning.

However, I am clear that there are contexts in which the court may need to serve an order on a party at the refuge they are staying in, and where not doing so may pose unintended risks to the safety of children involved in family law proceedings. For example, there may be a concern that a child might imminently be taken out of the jurisdiction. The welfare of the child is of key concern in family court proceedings. Where the courts have urgent welfare considerations, they must be able to take swift action to locate the child. We must not risk impeding the court’s ability to act immediately to safeguard a child by limiting the addresses at which an order can be served.

As my noble friend has outlined, the courts may already direct bespoke service arrangements based on the facts of a case. The Family Procedure Rules 2010 allow for court orders to be served at alternative addresses, such as the refuge office address, if that is suitable. Of course, as the noble Baroness, Lady Hamwee, and the noble Lord, Lord Marks, pointed out, it may not always be suitable. As such, I am confident that the important outcomes sought by my noble friend are already provided for in existing legislation and court procedure.

I should add in this context that the Family Procedure Rules, as I have said, allow for parties to apply for their contact details to be kept confidential from other parties. But even where such an application has been made, parties retain responsibility for ensuring that any form or document they submit to the court does not contain the information they wish to keep private. We have to consider in this context documents received from other people, such as medical reports or financial statements. It is difficult, if not impossible, for court staff to check all documents submitted to the court for any unintentional—I emphasise unintentional—disclosure of contact details.

Therefore, given that background, I submit that the proposed clause is unnecessary and, perhaps more importantly, would bring with it some obviously unintended, but very real, potential risks to some of our most vulnerable children. Existing legislation and rules allow for the protections sought through this amendment. But we recognise that, as we have been told in a number of cases this evening, concerns have been raised in individual cases before the courts. The Government are committed to protecting vulnerable victims of domestic abuse, and of course this extends to those residing in refuges in particular. We actively work with members of the judiciary, who are committed to exploring whether and how existing procedures and guidance could be strengthened to ensure that those residing in refuges are protected.

Before I turn to the next amendment, I once again thank my noble friend Lady Bertin for raising this issue, both by way of this amendment and in her discussions with me on this matter. It is clear that, across the Committee, we share the same aim—the only real question is how we best achieve it.

As the noble Lord, Lord Rosser, has explained, Amendment 132 seeks to place a duty on courts to share information relating to victims or those at risk of domestic abuse, and imposes an obligation on the family court to consider making a barring order where information shared by another court identifies that court proceedings may be being used to continue abusive behaviour towards the victim.

I have a great deal of sympathy for the aims of this amendment, and I agree that better information sharing, in particular between the family and criminal courts, on the issue of domestic abuse is important. The noble Lord, Lord Rosser, was kind enough to acknowledge that there were some drafting issues with this amendment. Indeed, there are such issues, and therefore I hope the Committee will find it helpful if I reply on the questions of principle and not on points of drafting.

The Government are actively considering what more can be done to improve the sharing of information between civil and criminal courts dealing with family proceedings, including through the development of integrated domestic abuse courts, which will be piloted later this year and seek to progress family and criminal cases in parallel. I hope that goes some way to meeting the concerns expressed this evening by my noble friend Lady Newlove.

In particular, I draw to the Committee’s attention the recent amendment to the Criminal Procedure Rules, which comes into effect on 5 April. This will impose a duty on parties to criminal proceedings to alert the criminal court to any related family proceedings, and it encourages the exchange of relevant information with a court dealing with those proceedings. We consider the issue of information sharing between the jurisdictions to be more appropriately addressed through procedural rules, rather than in primary legislation, because the court processes are somewhat technical in nature, I am afraid—and, of course, one has to bear in mind the often technical nature of management information systems.

Alternatively, there is also the issue here of judicial guidance, where the court has a discretion over what information should be shared and with whom. I assure my noble friend Lady Verma that, in that context, the position particularly of women from minority communities, who may be more affected by the sometimes siloing nature of our court processes, is kept very much in mind. How to access support and manoeuvre one’s way through the system once one is in it is of central importance in this context.

I move on to the related but separate issue of the use of Section 91(14) orders under the Children Act 1989, often referred to as “barring” orders. The amendment proposes that the family courts are placed under a duty to consider such an order where it appears, based on information shared by another court, that cases are being brought by a perpetrator of abuse as a means to carry on their abusive behaviour.

The noble Lord is right to raise the issue of perpetrators using the family courts as a means to continue their abuse, highlighted in the report by the Ministry of Justice’s expert panel on harm in the family courts, published in June last year. The sad fact is that domestic abuse perpetrators do sometimes use the courts as a way of perpetrating their abuse, often bringing their victims back to the courts repeatedly, which, obviously, can be retraumatising. In our response to the report, the Government committed to exploring how we could further clarify the availability of Section 91(14) orders in the family courts to further protect victims of domestic abuse.

The amendment proposed by the noble Lord would place a duty on courts to consider making a Section 91(14) order, but only where relevant information has been shared by another court. We are determined that courts should never be used as a forum to perpetrate further abuse. In that context, I am clear that further clarification is indeed required to the law on barring orders to ensure that the use of Section 91(14) is available to parents and children to protect them where further proceedings would risk causing them harm or further abuse. The evidence suggests that these orders are currently underused in circumstances involving domestic abuse and that they could be an effective tool to further protect victims and survivors.

In answer to the question put to me by the noble Lord, Lord Rosser, and my noble friend Lady Newlove as to when we will come back with further thoughts on this matter, the short answer is: before Report. Therefore, I thank the noble Lord for drawing attention to this matter, which we are actively considering. We are considering what more can be done to ensure the effective use of Section 91(14) orders in domestic abuse cases. As I have said, we will consider this issue carefully ahead of the next stage of the Bill.

I turn now to Amendment 133, on training for judiciary and other professionals in the family court. The noble Lord, Lord Marks, said that this amendment was the most important of the group. I am tempted to agree, though that is not in any way to undermine the importance of any other amendment. To use a word that I think was used by the noble and learned Baroness, Lady Butler-Sloss, training is critical in this area.

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Very soon the game of so many abusers will be up, and it cannot come soon enough. I join all the other speakers to ask why this offence cannot be put in this Bill. How many women does the Minister think will die if the Government wait for another Bill to come along?

[Lord Wolfson of Tredegar (Con)]

My Lords, first and foremost, I offer my sincere thanks to my noble friend Lady Newlove, the noble Baronesses, Lady Meacher and Lady Wilcox, and the right reverend Prelate the Bishop of London for the clear case they have submitted today before the Committee on why the offence of non-fatal strangulation is necessary. All the matters that we have discussed today are important, but this may well be the most important. In that context, I hope noble Lords will forgive me if I do not acknowledge each of the contributions individually, both because of time and because, if I may say, many of the contributions were to the same effect. I will seek to respond to the substantive points made without always a personal reference; I hope I will be forgiven for that.

I must, however, make a personal reference to my noble friend Lady Newlove. I join with others in paying sincere tribute to her for the way in which she has promoted this issue. She explained how non-fatal strangulation can be terrifying and the effects long lasting. As the noble Baroness, Lady Crawley, said, it is often used as a method of control and, to adopt the phraseology of the noble Baroness, Lady Wilcox of Newport, there is a real and visceral effect. I also mention in particular the personal and very moving speech by my noble friend Lady Bertin, with her mention of some circumstances very close to her.

As noble Lords will have noted, there are two amendments on non-fatal strangulation before the Committee. Amendment 137 would have general application: it would apply to all cases where non-fatal strangulation or suffocation has occurred, including cases where non-fatal strangulation or suffocation featured as a factor during a domestic abuse incident. By contrast, Amendment 138 creates the same offence, but the application is limited to cases of non-fatal strangulation or suffocation where this occurs in a domestic abuse context. The maximum penalty for the new offence in each proposed clause is the same—that is, on conviction or indictment, seven years’ imprisonment or a fine, or both.

I am aware that the proposal to create a stand-alone non-fatal strangulation offence stems from campaigns conducted last year by the Centre for Women’s Justice and We Can’t Consent to This. Specific clauses to create a new offence were tabled in another place, although they were different to those before us today. Those proposed clauses were, however, withdrawn on Report in the other place and were not put to a vote.

Before setting out the Government’s position on this matter, let me start by saying that we entirely sympathise with and fully understand the strength of feeling. We unequivocally support the intention behind these amendments and have given a firm commitment to legislate for a new offence of non-fatal strangulation. I hope that, as the right reverend Prelate the Bishop of London explained, this will indeed lead to a reduction in the appalling details that we may have to hear in the future. In answer to my noble friend Lady Redfern, that would be a stand-alone offence.

Several contributors have mentioned the position in other jurisdictions. It is right to say that Australia, Canada, New Zealand and several states in the USA have created a non-fatal strangulation offence. Those offences have been cited by the two groups that I mentioned as offering a basis on which any new offence in England and Wales could be modelled. Those stand-alone offences, however, differ across those jurisdictions. Some apply widely but are dependent on certain factors being met, such as the victim not giving consent, or the act causing them to lose consciousness. Other variations of the offences are narrower in scope, in that they are restricted to instances of strangulation that occur in a domestic abuse context. Those offences are not without criticism. Some people claim that they are too broad and can capture behaviour that is not intended to harm and should not be criminalised.

It is also worth pointing out that the offences in those jurisdictions have not been placed on the statute book without significant prior review to assess their impacts on other areas of law. In addition, most of those legislative measures tend to be accompanied by a package of non-legislative measures—for example, programmes for seeking to change perpetrator behaviour, toolkits for the police to assist in identifying non-fatal strangulation cases and guidance for agencies to support victims of non-fatal strangulation.

I also draw the attention of the Committee to the current law and how non-fatal strangulation is currently captured. Such behaviour can be captured, depending on the seriousness of the crime, under offences ranging from common assault and battery to attempted murder. However, in addition to those offences, there are others that can cover non-fatal strangulation and suffocation. For example, it can be part of a pattern of behaviour amounting to an offence of controlling or coercive behaviour under Section 76 of the Serious Crime Act 2015. Additionally, a specific offence under Section 21 of the Offences Against the Person Act 1861 makes it an offence to attempt to choke, suffocate or strangle any person, or to choke, suffocate or strangle a person in an attempt to render that person insensible, unconscious or incapable of resistance. That offence also requires there to be an intention by the perpetrator to commit another indictable offence.

It is that range of offences that initially led the Government to believe that the law was sufficient in covering the diverse circumstances and levels of seriousness that may be involved in non-fatal strangulation cases. As the noble Baroness, Lady Bennett of Manor Castle, set out, one would not want to create a stand-alone offence if it were not necessary to do so. However, we have now been persuaded that this may not be the case.

We are also aware of claims of evidential difficulties in prosecuting any allegation of strangulation, particularly if there is no—or insufficient—evidence of injury, not even reddening or minor bruising to the skin. Further, as the noble Lord, Lord Marks, pointed out in relation to the Section 21 offence, there is the additional requirement for evidence that another indictable offence had been intended, and that may create difficulties.

Our concern had been that the same difficulties would apply to any new offence, as there would still be a requirement for proof beyond reasonable doubt that a serious offence was intended. We have also been concerned about the risks associated with creating a new offence and that it could limit the circumstances covered and create additional evidential burdens when compared with existing offences.

More importantly, as was pointed out by a number of contributors, non-fatal strangulation is relevant to and found in, but plainly not limited to, domestic abuse circumstances. Although I understand and accept that it is more likely to occur in a domestic abuse setting, it is nevertheless the Government’s position to ensure that if we create a new criminal offence, it applies equally to all parts of society, does not create any loopholes, or conflict or impact on other parts of the legal framework.

I turn now to the detail of the amendments: as drafted, both are deficient and could not be accepted by the Government. Importantly, both amendments seek to create a new offence to criminalise conduct that is already unlawful. In addition, the proposed maximum penalty of seven years’ imprisonment for conviction or indictment is problematic—the level of the penalty needs careful consideration. Our main concern here is that seven years exceeds the maximum penalty for serious offences such as GBH, when the injury caused by non-fatal strangulation may be significantly less than the injuries that amount to GBH.

There are other significant problems. The amendments do not deal with the element of consent, do not consider any exemptions and do not provide explanation of how they would work with, and alongside, the current legal framework. The amendments are also limited to a person’s breathing, or blood circulation, or both, being impeded manually—by hand or through the use of an aid. We are, however, aware of offences of this nature where a person’s breath or blood circulation has been impeded in other ways, such as the use of other body parts—a knee placed hard upon a neck, for example—or, simply, using bodyweight.

As noble Lords will have seen in the media over the weekend of 9-10 January, the Government have now committed to creating a new offence of non-fatal strangulation, for which the noble Baroness, Lady Meacher, characteristically generously, was thanking Ministers. It will be important, however, to ensure that any new offence is proportionate—I hear the question from the noble Baroness, Lady Burt, and I will come back to it—allows for more prosecutions to be brought and for convictions to be secured. There is a number of legal and technical issues to be addressed for this to be achieved that are not addressed by the amendments as currently tabled.

The noble Lord, Lord Anderson of Ipswich, as has been said, rightly pointed to some of these issues on Second Reading, and we should not underestimate the challenges of getting this right. I am grateful to the noble Lord, Lord Marks, for passing on the later comments from the noble Lord, Lord Anderson. I can say, particularly given his reference to Professor David Ormerod, that officials have already taken up the offer of meeting the learned professor. They have had initial discussions with him and will continue to have such discussions, which I am sure will be extremely useful.

As I am sure noble Lords will agree, it is important for any new offence to work in practice and not pose difficulties for other parts of the law. In creating any new offence of non-fatal strangulation, the Government will have to consider several factors. Let me set out just four. First, the Government will have to consider whether the behaviour should be captured through a single offence or through two offences to capture lower-level and more serious cases of non-fatal strangulation. Secondly, we have to define the term “strangulation and suffocation,” and consider whether any terminology about serious harm requires definition. Thirdly, although I heard what the noble Lord, Lord Marks, said, we have to consider the issue of consent—when consent becomes invalid is a notoriously thorny legal issue. Fourthly, we have to consider the application of public policy exemptions, such as for some sports or medical treatments.

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

My Lords, we on these Benches fully support Amendments 139, 140 and 145, in the names of my noble friend Lady Kennedy of The Shaws and others. The issues addressed in these amendments have been raised in the other place by my honourable friend the Member for Birmingham, Yardley, Jess Phillips, and others during the Bill’s consideration there.

The amendments, as noble Lords have heard, are modelled on existing law and should not cause the Government any trouble whatsoever; I look forward to the Minister’s response. My noble friend Lady Kennedy explained the problems women face when they have killed a partner, having been the victim of abuse for years and years and then find themselves in the dock. The amendments seek to address that and reflect the realities of domestic abuse.

Everybody has been very complimentary about the Bill—it is a very good Bill, long overdue and we wish it success—but to become really effective legislation, it must incorporate these amendments or government amendments with the same intent. It is reasonable to afford the victims of domestic abuse who act in self-defence, often in their own homes, reasonable protection. They are compelled to defend themselves, having suffered years of abuse. As my noble friend Lady Kennedy reminded us—we have heard it many times before—on average, two women a week are killed by their partner or former partner. That is an horrific figure.

Amendment 139 would provide domestic abuse survivors with the same legal protection as householders have in cases of self-defence. Members have referred to such cases. Amendments 140 and 145 are modelled on Section 45 of the Modern Slavery Act 2015 and would give victims of abuse a statutory defence where they have been compelled to offend as a result of experiences of domestic abuse.

We have heard excellent speeches in this short debate from all noble Lords, particularly from the right reverend Prelate the Bishop of Gloucester. I endorse all the comments of noble Lords. My noble friend Lord Bradley, in particular, made a compelling speech. He raised the issue of mental health, its effect on women prisoners and the need for proper context to be taken into account when deciding to prosecute cases. I look forward to the response from the noble Lord, Lord Wolfson. If he cannot accept these amendments, I hope he will tell the Committee that he understands the issue and will go away and reflect on it, and maybe come back on Report.

[Lord Wolfson of Tredegar (Con)]

My Lords, I first offer my sincere thanks and appreciation to the noble Baroness, Lady Kennedy of The Shaws, for outlining the case for these amendments. In response to her early comments, I can assure her that I have indeed listened to her and benefited from discussing these matters with her, both outside the Chamber in advance of today’s proceedings and in listening to her most diligently this evening. She has considerable experience in this area of the law.

In effect, these amendments seek to create two new defences: first, a defence of reasonable use of force by victims of domestic abuse who, in self-defence, react to violence from an abusive partner; and, secondly, a new statutory defence for victims of domestic abuse who commit a criminal offence. While in tonight’s debate the noble Baroness, Lady Kennedy, focused on the first of those defences, I have had the benefit of discussing both issues with her. I have read briefings on both and therefore hope that my reply will meet the points she has made inside and outside the Chamber. None the less, I will take each amendment in turn, because they raise different issues.

Amendment 139 is on the reasonable use of force. The Government are aware that what is being sought here is an extension to the current provisions to enable victims of domestic abuse to have the same level of protection as those acting in response to an intruder in the home. I am aware that the proposed new clause stems from a campaign by the Prison Reform Trust seeking to clarify the degree of force that is reasonable under the common law of self-defence where the defendant is a survivor of domestic abuse. It has been suggested by the Prison Reform Trust that the common-law defences are unsuitable in the context of domestic abuse.

In that context, as the noble Baronesses, Lady Kennedy and Lady Hamwee, explained, the amendment seeks to build on existing provisions in Section 76 of the Criminal Justice and Immigration Act 2008, with the intention that, as with householders, the degree of force used by the defendant would have to be “grossly disproportionate” rather than simply “disproportionate” by reference to the circumstances that the victim believed them to be, and to take into account other factors set out within Section 76. It has been suggested that this would fill a gap in the law.

Let me start by saying what I hope does not need to be said, given the terms of the Bill and what has been said in Committee on this and previous occasions. The Government recognise the harm suffered by victims of domestic abuse. Several defences are potentially available in law to those who commit offences in circumstances connected with their involvement in an abusive relationship, including the full defence of self-defence. In addition, the broad definition of domestic abuse in the Bill should assist, I hope, with identifying and clarifying the wide-ranging and pernicious nature of domestic abuse, and alerting all those involved in the criminal justice system to it.

It is worth mentioning at this point that the courts—by which I mean the judges—have developed the common-law defences and their relationship to domestic abuse. We should perhaps pay tribute to the judges for having recognised the nature and impact of coercive and controlling behaviour in the application of the criminal law and in sentencing, as well as in family and civil law. It is sometimes the case that the courts are quicker, more nuanced and more flexible in developing the common law than Parliament can ever be in introducing, by their very nature, more rigid and narrowly drawn statutory provisions. For fans of the common law, of which club I am an enthusiastic member, that is an important point to bear in mind.

There is also a need to balance recognition of the abuse suffered and its impact on the victim with the need to ensure that, wherever possible, people do not resort to criminal behaviour. The Government believe that the balance is currently reflected in the law, which continues to evolve and which aims to strike the right balance between those factors.

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[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I thank the House for the opportunity to ask this question, which applies to all these amendments but particularly to Amendment 139, to which my noble friend Lady Jones of Moulsecoomb is a signatory. She was unfortunately unable to take part in this debate.

My noble friend would have referred to the fact that the Covert Human Intelligence Sources (Criminal Conduct) Bill allows blanket legal protections for undercover police and informants. The forthcoming overseas operations Bill creates similar new protections against prosecution for military personnel acting overseas. The Government have fought intensely for these protections against prosecution for the police and the military; they have fought against many attempts in your Lordships’ House to reduce or check these protections. In that context, how would the Minister explain—having granted such broad protections to the police and military, even in cases of fundamental wrongdoing—why the Government should refuse what are comparatively far more limited legal defences for survivors of domestic abuse, particularly with such well thought-out and well drafted amendments by the noble Baroness, Lady Kennedy of The Shaws?

[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Baroness, Lady Bennett of Manor Castle, for that question. I do not wish to be thought flippant in any way, but the short answer is that the situations are different, and therefore you have different considerations and different legal results. However, if she will permit me, given that I am not personally acquainted with that sort of detail—certainly of the overseas operations Bill—to respond to her this evening, I will add to my reply in writing.

[Lord Paddick (LD) [V]]

My Lords, I am very grateful to the Minister. I have two questions which rather puzzle me. First, he talked at length about praising judges for how they can quickly and flexibly adapt the common law of self-defence to new cases and how beneficial it is for it to be dealt with in that way, rather than with rigid primary legislation. Can he therefore explain why Section 76 of the Criminal Justice and Immigration Act 2008 was thought necessary?

Secondly, the Minister talked about the option to retreat in domestic abuse cases. Referring to the two scenarios that I spoke about from personal experience, I certainly had the option to escape out of the flat—luckily it was a ground-floor flat—when somebody was trying to break the front door down in the burglar scenario, but when my abusive partner had me up against the kitchen wall, I had very limited options to retreat. I cannot see how the option to retreat is more valid in the burglar situation than it is in the domestic abuse situation. Perhaps the Minister can help me.

[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Lord, Lord Paddick, for those questions. First, Section 76 of the Criminal Justice and Immigration Act dealt with a specific circumstance, whereby Parliament considered that that instance ought to be reflected by way of a specific statutory defence. The question for this evening is whether there is a suitable read-across into the matters we are discussing. For the reasons I sought to explain, I suggest that there is not.

Secondly, as to the option to retreat, I hope I made it clear that I was not saying that there is always an option to retreat in domestic abuse cases; I was making the point that there is generally very little option to retreat in the householder case. Again, that is an instance where you cannot simply read across to the domestic abuse case. I hope the noble Lord is content with those responses, but I am very happy if he wants to take those points up with me hereafter so that we can discuss them.

[Baroness Hamwee (LD) [V]]

My Lords, I understand the points that the Minister has made about the common law developing—that is inherent in it—but, like my noble friend, I want to pursue the point about flexibility. If the courts were that flexible—I suppose this is a rhetorical question—would we be moving and speaking to these amendments?

The proposed new clause in Amendment 140 is modelled on—but, I accept, does not completely repeat—the provisions of Section 45 of the Modern Slavery Act, referring to “the person’s circumstances”. As far as I am aware, I have not received the briefing from the Prison Reform Trust, but does the Minister accept that the remarks of the right reverend Prelate and the noble Lord, Lord Bradley, go very much to the point about a person’s circumstances? The Minister referred to concern about misuse. At Second Reading, I think I made the point that if there is misuse we should be looking at the misuse, not at not applying a defence which should be a good defence in general.

Finally—again, I suppose this is rhetorical—with regard to the balance, and we are for ever searching for the right balance, does the Minister agree that, given the fast-developing understanding of domestic abuse and its impact, civil society will likely pretty quickly, in parallel, be developing its ideas about what is the right balance?

[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Baroness, Lady Hamwee, for those various questions. On the issue of the person’s circumstances, I hope I set that position out in my reply. Perhaps it is the sort of point I could set out to her in writing in a couple of paragraphs, if she would not mind.

We are concerned when defences may be being misused; I made it clear that there are some concerns with the victims of slavery defence in that context. On the last point, which I think the noble Baroness accepted was somewhat rhetorical, she is certainly right that we always seek a balance. The point she makes that the law must keep up with the expectations of civil society is a profound one; it is, indeed, one of the big advantages of the common law. I am sure, therefore, that the issues raised by these amendments will continue to be discussed. The question before the Committee this evening is whether the legislature should provide for explicit statutory defences in these terms. For the reasons I have sought to set out, in my opinion, it should not.

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

My Lords, I should tell the Committee that I turned a page too soon in my opening address on these amendments. I did not have the chance to really lay out the second of the statutory defences I am promoting, in Amendment 140.

I regret that I used the term “read-across,” because there are always lawyers who will use language literally. Of course, I did not mean it is an absolute read-across to talk about a householder as distinct from a victim of abuse, but the gravamen is the same. The core of it is about somebody put in fear in the place they want to feel safe: their home. I cannot think of any domestic homicide where I have represented a woman who has killed her partner or ex-partner that did not happen within a household—a place where she was hoping to feel safe but did not, and where experience had taught her to feel fear and terror.

I am afraid I have to say to the Minister that some time, I will take him by the hand into a women’s prison and have him sit down and listen to the accounts of women, by asking them to look him in the eye and tell him their stories. They are so often there because of childhood abuse, having been brought up in abusive households and with direct experience of partner abuse. We could almost empty our prisons without them having women who are there because of their mental health. They are not mentally ill for no reason; almost invariably, it is because of the kind of abuse we have heard about in the debates on this Bill.

I say this respectfully, but the Government are again falling into the trap of saying there are nice victims and bad victims, or of saying: “We will change the law for the good, conforming victims but not for the victims who somehow transgress”. These are the victims who, in the end, defend themselves because they are so in terror for their lives, who are so in fear of a partner that they commit a crime—carrying the drugs from A to B or hiding them in their sock drawer, for example. All I am saying is that there is a double standard in this debate: as soon as you move to that which involves crime and a woman, or anybody who is abused, is in the dock, then suddenly your compassion for the issue of domestic abuse somehow dissipates.

I am very concerned that there is not enough real consideration of the toll of abuse: we are moving into the field where somebody ends up transgressing the law but it is really because of what they are experiencing. If a psychiatrist were to speak to this Committee, they would tell noble Lords that when somebody has experienced fear for their life—we have heard about it in relation to strangulation—and thought “I am going to die at the hands of this person”, and then suddenly smells that level of fear again, in the air, in those circumstances they might take a knife and defend themselves, or take a heavy weapon and hit somebody fatally on the head. The test of “reasonableness” or whether the force was “disproportionate” has to be read in the context. That is why I am saying that it would have to be “grossly disproportionate” for it not to afford a defence of self-defence for somebody who has experienced long-term and serious abuse.

What we are seeing here are the very double standards that are so often experienced by victims of abuse and by women. It goes back to the nature of law and its patriarchal roots. It is about saying that, yes, women who are abused deserve all our compassion but if they overstep the mark, they do not.

Our prisons are full of women who have had these experiences—indeed, I have acted for women who have ended up killing a partner. They do not do it because they suddenly want to wreak vengeance; they do it in exactly the circumstances of the householder who feels in absolute terror for their life.

The failure to make those links and to understand this may be because one has not spent enough time sitting in a cell with people who are coming up for trial. I can tell the Committee that that is the circumstance, and if you can afford, because the Daily Mail demands it of you, to lower the standard of reasonableness and be more flexible for a householder—as indeed you should—then that kind of flexibility should be available to those who have been experiencing long-term abuse.

I ask that the noble Lord look again at the double standard that is operating here. It is partly, of course, because Governments always want to play the law-and-order card and do not want to be seen to be soft on people who commit crime. But very many of the women who end up in prison did what they did because they were under the coercion and control of somebody else, and were absolutely in fear of that person. I really regret the response I have received from my friend, the noble Lord. I ask him to take his great lawyer’s skills and go back to the drawing board again, because he is missing something very important here, which is about justice for women. I beg leave to withdraw the amendment, with great regret, and I am really disappointed in the ministerial response.

Domestic Abuse Bill

Lord Wolfson of Tredegar Excerpts

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

[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.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, my noble friend Lady Bertin has, as she has explained, tabled an amendment which seeks to ensure that UK citizens who commit marital rape in countries where such behaviour is not criminal may be prosecuted in the UK. Such countries are thankfully in the minority. We of course want to prevent any exploitation of more lax laws on marital rape elsewhere.

I hope that the Committee will allow me a moment to put these amendments into context so that we can understand the legal architecture that we are talking about. Schedule 2 contains amendments to various enactments to provide for extraterritorial jurisdiction over certain offences under the law of England and Wales, Scotland and Northern Ireland. Together with provisions in the Domestic Abuse and Family Proceedings Bill currently before the Northern Ireland Assembly—it gives extraterritorial effect to the new domestic abuse offence in Northern Ireland—and Clauses 66 and 67, it ensures that the UK complies with the jurisdiction requirements of Article 44 of the Istanbul convention. That article requires the UK to be able to prosecute criminal conduct set out in the convention when that conduct is committed outside the UK by one of our nationals or by a person who is habitually resident here. Part 1 of the schedule covers England and Wales and deals with cases under Sections 1 to 4 of the Sexual Offences Act 2003, where the victim of the offence is aged 18 or over. Parts 2 and 3 cover Scotland and Northern Ireland on a corresponding basis.

In keeping with the normal principles of extraterritorial jurisdiction, there is a requirement that a prosecution for one of the relevant sexual offences—which includes rape—may be brought in the UK only where the offending behaviour is also an offence in the country where it happens. That is called dual criminality, which respects the notion that generally it is inappropriate for the criminal law of state A to be applied to conduct that occurs in state B where that conduct does not offend the law of state B. In most circumstances, the dual criminality requirement is not a barrier to prosecution because serious sexual offences against adults are likely to be criminal in most other countries. However, it could mean that, in some circumstances, UK authorities would not be able to prosecute someone for a marital rape committed outside the UK if such behaviour is not included in or exempt from the equivalent offence in the other jurisdiction. As it stands, the Bill applies a dual criminality requirement for the relevant sexual offences committed outside the UK by UK nationals and UK residents. My noble friend’s amendment would remove the dual criminality requirement for UK nationals, but not for UK residents. As explained by my noble friend, and by the noble Lords, Lord Paddick and Lord Kennedy of Southwark, the effect of this would be that the UK could prosecute UK nationals who commit marital rape against adult victims in countries where such behaviour is not criminal, but could prosecute UK residents who commit marital rape of adult victims abroad only if the behaviour is also criminal in the country where it is committed.

In principle, that is the right approach, as the link to the UK is stronger where the offending behaviour is perpetrated outside the UK by a UK national, rather than by a non-UK national ordinarily resident in the UK. Existing law already makes that distinction with regard to extraterritorial sexual offences where the victim is under 18. The amendments extend only to England and Wales and, as my noble friend identified, one would need to alter the drafting if they were to go further. However, I do not want to focus on the drafting issue. I am grateful to her for raising this important issue and possible lacuna in the Bill. Marital rape is abhorrent behaviour, and I agree that we should consider carefully the case for amending the Bill to cater for it. But—it is an important but—as the extraterritoriality jurisdiction provisions are UK-wide, we need first to consult the devolved Administrations to ensure a consistent approach across the UK. To that end, I respectfully invite my noble friend to withdraw her amendment on the clear understanding that we will give this matter serious and sympathetic consideration ahead of Report.

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[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

My Lords, shall we see if we have the noble and learned Lord, Lord Morris, on the call? I do not think we do, sadly, in which case I call the Minister.

[Lord Wolfson of Tredegar (Con)]

My Lords, the noble Lord, Lord Marks of Henley-on-Thames, seeks to strike out—alone among the clauses in the Bill—Clause 69. I will endeavour to persuade him, and the rest of the Committee, that this clause, like others, can play an important part in protecting victims of domestic abuse. Right at the start, however, I join the noble Lord, Lord Marks, and the noble Baroness, Lady Hamwee, in thanking those at the MoJ who provided the presentation made to them. This was a very good example of how that sort of interaction—what one might call a learning session—can help everyone when we debate these matters in Committee.

Clause 69 allows the Secretary of State for Justice to introduce mandatory polygraph examinations as a licence condition for offenders convicted of a relevant domestic abuse-related offence. The relevant offences have included, until now: murder, specified violent offences, and the controlling or coercive behaviour offences set out in the Serious Crime Act 2015.

Polygraph examinations are already successfully used in the management of sexual offenders supervised by the National Probation Service. The clause extends the use of testing to include—in response to the noble Baroness, Lady Hamwee—high-risk domestic abuse perpetrators: those who have been released from custody having served a sentence of 12 months or more and are on licence.

The polygraph testing is used to monitor an offender’s compliance with other licence conditions, such as those restricting contact with their victim, requiring the offender to notify the probation officer when they form new relationships, or prohibiting entry into an exclusion zone; for example, around their victim’s home. It is also used to monitor dynamic risk factors such as alcohol or substance misuse.

I will try to respond to a number of questions asked by the noble Lord, Lord Marks, but if I miss any out, I undertake to write to him after reviewing the Official Report.

The policy underpinning these provisions does not allow offenders to be recalled to custody for failing a test. I use the word “fail” being cognisant of the fact that, as the noble Baroness, Lady Hamwee, said, we are not talking here about failing in the normal sense of the word. Indeed, I think the noble Baroness explained her approach to polygraphs as being somewhere between a yes and a no; that might be applicable to the polygraph itself. The clause does, however, enable offenders to be recalled for making disclosures during testing which, when considered with other evidence, suggest that the risk can no longer be managed in the community.

The offender can also be recalled to custody if he or she refuses to take the test or tries to trick it in some way; for example, by controlling their breathing. However, in response to the questions put to me, I draw the Committee’s attention to the fact that disclosures made voluntarily by the offender during the polygraph examination may reveal that they can no longer be safely managed in the community. Those circumstances would also lead to a return to custody. The important point to bear in mind in that regard is that that is no different from a situation in which an offender makes such disclosures without the polygraph licence condition.

Polygraph testing can be required as part of the licence conditions imposed on an offender following their release from custody. It can be imposed only where it is deemed necessary and proportionate to the risk posed. Importantly, in its report on the draft Bill the Joint Committee did not object in principle to extending polygraph testing to domestic abuse offenders; it sought assurance on two issues.

First, it sought an absolute assurance that no statement or data derived from a polygraph test would be used in criminal proceedings. The Joint Committee acknowledged that this appeared to be the effect of the draft Bill. In that regard, the provision in Clause 69 must be viewed alongside the existing provisions relating to polygraph testing in the Offender Management Act 2007. Section 30 of that Act provides unequivocally that any statement or any physiological reaction made by an offender during the polygraph session may not be used in criminal proceedings in which that person is a defendant.

To be clear, however, this does not preclude information derived from a polygraph examination being shared with the police, who may decide to use the information to conduct further inquiries. If, as a result of those inquiries, the police obtain other evidence that suggests that an offence has been committed, charges may be brought against the offender.

The second concern raised by the Joint Committee was that polygraph testing should not become a substitute for careful risk analysis—a point that, I think, was also made by the noble Baroness, Lady Hamwee. I assure the Committee that the use of polygraph examinations will not replace any other risk assessment tools or measures, such as the multiagency public protection arrangements—MAPPA—but will provide an additional source of information that would not otherwise be available.

The evaluation of the pilot mandatory polygraph testing for sexual offenders concluded that offender managers found polygraph testing very helpful. To date, 5,000 tests of that type have been carried out on 2,249 offenders, and 1,449 tests have resulted in the offenders making significant disclosures that led to either a refined risk management plan or recall to custody.

With regard to the qualifications of those carrying out the examinations, I assure the Committee that they are carried out by qualified and experienced probation officers who have completed three months’ residential training to become accredited polygraph examiners, and all polygraph examinations are quality assured by an independent external provider.

However, while the use of polygraph examinations is tried and tested, as I have said, in the context of the management of sex offenders, the Government accept that domestic abuse perpetrators represent a different cohort of offender. That is why we are committed to piloting the provisions in Clause 69. I draw the Committee’s attention to the commencement provisions in Clause 79, which expressly provides for such piloting; we will begin this as soon as is practicable after Royal Assent.

We intend to run a three-year pilot in the north of England, involving about 600 offenders. Half will be subject to testing and half—the control or comparison group—will not. The Cambridge Centre for Evidence-Based Policing, in collaboration with the University of Cambridge, will conduct an independent evaluation of the pilot, and only if the results were positive would we roll out testing across England and Wales. In response to the specific question put to me by the noble Lord, Lord Marks, in conjunction with his Amendment 191, I am happy to commit that the Government will lay a copy of the evaluation report before both Houses prior to any decision on wider rollout, enabling noble Lords to consider the findings in full. I hope that that is helpful in response to his question.

Given the benefits that we have seen with the use of polygraph testing to help us to manage the risk posed by convicted sex offenders, I apprehend that the noble Lord, Lord Marks, now sees the merit, at least in principle, of analysing the question of whether we can use the same procedure with regard to serious domestic abuse perpetrators. Indeed, last week, we heard calls for the more efficient and effective use of technology to protect victims of domestic abuse—Clause 69 does just that.

With the repetition of the point that I will go through the Official Report, because there may be one or two questions that I have not directly answered but which deserve and will get a written answer from me, I invite the noble Lord to withdraw his challenge to Clause 69, which I commend to the Committee.

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

My Lords, I am afraid that we have had no luck getting in contact with the noble and learned Lord, Lord Morris, so I call the noble Lord, Lord Marks of Henley-on-Thames.

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[Lord Wolfson of Tredegar (Con)]

My Lords, it might be most efficient for me to do just that. I will add it to the list of questions and respond in writing.

Clause 69 agreed.

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[Lord Rosser (Lab) [V]]

This amendment in the name of the noble Baroness, Lady Jones of Moulsecoomb, would add a new clause to the Bill to provide lifetime press anonymity for survivors of domestic abuse. It reflects similar protections for survivors of sexual assault enshrined in the Sexual Offences (Amendment) Act 1992, as the noble Lord, Lord Paddick, said. It prevents identifiable details being published online or in print and creates a new offence for breaching this anonymity.

This issue has risen up the agenda because stories are published in which victims and survivors of domestic abuse, as well as family members and children, are named. When these stories then make their way on to websites, victims have no anonymity but the people who choose to make comments do have anonymity.

Apart from the protection for survivors of sexual assault enshrined in the 1992 Act, I believe the Serious Crime Act 2015 grants anonymity to and protection for victims of female genital mutilation, and the Modern Slavery Act 2015 grants anonymity to victims of any human trafficking offence. If I am right, that is three examples of anonymity given to three categories of victims. If the Government are not enthusiastic about this amendment—which the noble Baroness, Lady Jones of Moulsecoomb, said is a probing amendment—no doubt they will explain in their reply why they consider that survivors of domestic abuse do not require the same protection as survivors of sexual assault, victims of female genital mutilation and victims of any human trafficking offence.

[Lord Wolfson of Tredegar (Con)]

My Lords, I hope I can be relatively brief in my reply—not because the point is not important, nor indeed out of a lack of respect for any of the contributions we have just heard, but because there is a single and critical point, fundamental to the administration of justice, which lies at the heart of this debate.

As the noble Baroness, Lady Jones, explained, this probing amendment is designed to protect the identity of complainants in domestic abuse cases by the automatic application of reporting restrictions from the point when the allegation is made. Although the noble Lord, Lord Paddick, referred us to Article 6(1) of the European Convention on Human Rights, I dare say that the principle of open justice goes back much further than that. We are all familiar with the adage that justice must not only be done, it must be seen to be done. That statement, with which we are all familiar, I am sure, recognises that automatic reporting restrictions of this kind are an exceptional interference with open justice. Therefore, we make those reporting restrictions available only when there is a real need to do so.

The most familiar precedent is in relation to complainants who allege that a sexual offence has been committed against them. In those circumstances, there is a clear justification for preventing the reporting of the complainant’s identity, because there is an overriding need for anonymity to be guaranteed from the outset so that victims of a type of offence that still carries considerable stigma are emboldened to come forward and tell the police. As the noble Lord, Lord Rosser, says, there are a couple of other such other examples in the law, but each of those is an exception to the general rule. We must be very careful, I would suggest, to limit those exceptions to cases where it is demonstrably required. Therefore, while I listened with care to the speech by the noble Lord, Lord Paddick, and his personal and, if I may say, moving testimony, we do not consider that, as a matter of generality, domestic abuse cases in which no sexual offence has been committed fall into the same category such that they require automatic protection in the same way.

However, as a number of noble Lords identified, that does not mean that victims of domestic abuse should be denied anonymity where they both request and need it. The courts have discretionary powers to impose, on application, reporting restrictions prohibiting the naming of a witness, where the court is satisfied that being identified would diminish the quality of that witness’s evidence. I suggest that there is sufficient discretion before the courts to meet cases where reporting restrictions are required. To go further would be an unjustifiable interference with the extremely important principle of open justice.

I hope, therefore, given that this is a probing amendment —and while of course I am always willing to discuss anything with the noble Baroness, Lady Jones—that she will feel able to withdraw her amendment at this stage.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I realise this is a tricky subject to legislate on, but I think there is a problem and we need to fix it in some way. I thank the noble Lords, Lord Paddick and Lord Rosser, for their largely sympathetic comments. I heard the Minister say that justice must not only be done, it must be seen to be done. In that case, I would like him to go, perhaps, one of these days, to the High Court and see what is happening in the spy cops inquiry, where Judge Mitting—or rather the Met—is giving anonymity to many police officers who have committed crimes. Therefore, it does seem to me that somehow there is justice for some and not for others. I will, of course, withdraw the amendment now, but I still think this is a problem and that there has to be some way of sorting it out.

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[Baroness Bertin (Con) [V]]

My Lords, I support Amendment 161 and thank the noble Lord, Lord Kennedy, for tabling it and for being so tenacious. It is an honour to speak after the right reverend Prelate the Bishop of London. We cannot on the one hand spend years putting together a great Bill like this that says to victims, “We hear you; we are there for you; we want to help you escape”, and on the other hand stand by and allow those same victims to be potentially charged £150—an extortionate amount for many people—for proof of that abuse.

Domestic abuse does not discriminate. You can be a victim of abuse whether you are rich or poor. Unfortunately, while this fee remains, it does and will discriminate against poorer victims. Many of them will go without legal representation, many will return to an abuser and many will be seriously injured or worse as a result of being unable to access the legal remedies that are supposed to keep them safe. I know that the Department of Health has a fair amount on its plate right now, but it should endorse this small change to the Bill. It could have an immeasurable impact on people’s lives when they are at their most vulnerable.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Lord, Lord Kennedy of Southwark, for raising this matter—I am tempted to say “again”, but of course I should really say “again and again”. The list of engagements which he set out was impressive, and I fear I may not be able to provide satisfaction to the noble Lord where so many of my illustrious forebears have already failed. If I can put it this way: what he has said this evening has only increased my resolve to try to sort out this issue, not only because it is plainly an important matter to be addressed, as so many have said, but because it means that I will escape the horrid fate of being added to the noble Lord’s list.

The Government, as will be clear from what has been said by my forebears and what I have just said, wholeheartedly agree that vulnerable patients should not be charged by doctors for evidence to support them in accessing legal aid. That being the case, we are sympathetic to the spirit of this amendment. The issue requires further consideration ahead of Report for the reasons I will briefly set out. While I cannot commend this amendment to the Committee today, I will be looking at it in detail between now and Report. I should also take the opportunity to point out a couple of technical issues with the amendment, which I hope will also be helpful.

I am pleased that the noble Lord, Lord Kennedy, was able to meet with the Minister for Prevention, Public Health and Primary Care and representatives from the British Medical Association ahead of today’s debate to discuss the issue. I think it fair to say that everyone who attended this meeting was seized fully both of the issue and of its importance. As the noble Baroness, Lady Bull, said, we do not want to do anything to prevent or discourage victims of domestic abuse coming forward, and that includes questions of cost. That said, it is fair to say that there was some anecdotal evidence at the meeting which pointed to this perhaps being a diminishing problem, particularly since, as the right reverend Prelate the Bishop of London reminded us, the BMA issued advice to its members last year that they should not charge for this service, advice which they recently reinforced.

Following that meeting, the noble Lord, Lord Kennedy, graciously undertook to provide what evidence he had of this being a continuing issue so that we could consider the matter further. We look forward to receiving that evidence and continuing our discussions. However, as matters stand this evening, we remain to be persuaded that this issue needs to be resolved through primary legislation.

The position is that GPs can provide services in addition to NHS contracted services. They are classified as private services, for which they have the discretion to charge the patient. Letters of evidence to access legal aid is one such private service. It is therefore up to an individual GP practice to decide whether a charge should be levied and, if so, what it should be. However, as I indicated, as part of the 2020-21 contract agreement, the BMA recommended to all GPs that a charge should not be levied for letters of this kind. That is a welcome recognition by the BMA that, as was said, vulnerable patients with limited means should not be expected to pay for such letters. We recognise and commend the vast majority of GPs who are following that guidance, but it is a non-binding recommendation. As the noble Lord, Lord Kennedy, mentioned, we are informed of anecdotal examples where patients can be charged up to as much as £150 for that evidence.

As I said, I should make a couple of observations about the drafting of the amendment, although I recognise that these can be readily addressed in a further iteration of it. First, as currently drafted, the amendment refers to

“providing a letter … for the purposes of regulation 33(2)(h) of the Civil Legal Aid (Procedure) Regulations.”

That regulation was amended by later civil legal aid procedure regulations in 2017, so there is now no such regulation as presently referred to in the amendment. That is something that could be addressed in further drafting, and I respectfully suggest that it is.

Secondly, the amendment relies on the definition of a “general medical services contract” in Section 84 of the National Health Service Act 2006, which applies to England only. I assume that that is the case because, as the noble Lord is aware, the health service is a devolved matter in Wales and therefore this issue is a matter for the Welsh Government. I thought that it was worth making that point clear as well.

I return to the main point, on which, if I may respectfully say so, we have heard a number of very cogent speeches. I have not yet mentioned the contribution of my noble friend Lady Bertin, which was equally forceful. The Government remain committed to exploring options around this issue with the medical profession to ensure that vulnerable patients are not charged, and I would welcome the noble Lord’s continued help in this regard. In particular, once he has been able to provide what evidence he has of GPs continuing to charge victims of domestic abuse for these letters, we will be happy to have further meetings with him ahead of Report.

I hope that in the meantime he will feel able to withdraw his amendment, but he can rest assured that I have it ringing in my ears that I will face a similar amendment on Report if we cannot satisfactorily resolve the matter before that stage. I commit to working with him and to doing all I can to reach that satisfactory conclusion.

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

My Lords, I thank all noble Lords who have spoken—the noble Baronesses, Lady Bull and Lady Bertin, and the right reverend Prelate the Bishop of London—for their support. I also thank the noble Lord, Lord Wolfson, for his very careful and considered response. It was very welcome.

The noble Lord made reference to the meeting. It was a very good meeting. We actually had four Ministers from three departments on Zoom—I have never had that before—so in that sense I was very pleased. Clearly, Ministers are taking this seriously, and I appreciate that very much.

Obviously, the technical issues can be ironed out. I am not a draftsman, but I am sure that we can get that sorted out. We have been raising this issue since 2016. The negotiations have been going on for a very long time, but we do not seem to have gone beyond the fact that everybody is against it, no one wants to do it, but no one wants to do anything about it. We have not moved on much from that position today.

As I said, I hope that I will not have to push the amendment to a vote at a later stage. I hope that I can work with the noble Lord to resolve this issue but, if that does not happen, we will divide the House. However, at this stage, I beg leave to withdraw the amendment.

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

I thank the noble Baroness, Lady Morgan, for bringing this much-needed amendment to the House and recognising that the changes that have occurred in the past few decades, since the widespread introduction of mobile phone technologies and social media coverage, have irreversibly changed the way in which we communicate. The inherent dangers of the misuse of that communication have become increasingly prevalent. As the noble Baroness said, we are living our lives online, and today’s debate is into its ninth hour.

As a former teacher of media studies, I taught my students that the medium is the message—but, like many of my colleagues, I had no idea at that time how exploitative the medium would become. The key element to this amendment is that the Bill as it stands does not do enough to ensure that survivors of technology-facilitated abuse have sufficient protection in the criminal law. Threats to share intimate or sexual images and films are an increasingly common tool of coercive control that can have enormous negative impacts on survivors of abuse. While the sharing of intimate and sexual images without consent is a crime, threatening to share is not, leaving survivors of this form of abuse without the protection of the criminal law.

During my reading for this topic, I was powerfully moved by a key report, Shattering Lives and Myths, by Professor Clare McGlynn and others at Durham Law School. This was launched at the Supreme Court last year, and it sets out the appalling consequences to victims of intimate images being posted without consent on the internet. Nearly half of the victim-survivors the researchers spoke to had experienced threats to share nude or sexual images and videos without consent. While many of these threats were followed by non-consensual sharing, there must be a recognition that threats to share such images can in and of themselves have significant life-threatening impacts.

The domestic abuse commissioner designate has also supported this addition to the law, saying:

“The threat to share an intimate image … is an insidious and powerful way that perpetrators of domestic abuse seek to control their victims, and yet the law does not provide the protection that is needed. Threats to share these images play on fear and shame, and can be particularly dangerous where there might be multiple perpetrators or so-called ‘honour-based’ abuse is a factor. What’s more, the advent of new technologies enables perpetrators to make these threats even where such images do not exist, but there is no clear criminal sanction for this behaviour.”


Lack of support leaves victim-survivors isolated, often attempting to navigate alone an unfamiliar, complex and shifting terrain of legal provisions and online regulation. There needs to be a recognition in the Bill that image-based sexual abuse is a sexual offence, and an adoption of a comprehensive criminal law to cover all forms of image-based sexual abuse, including threats.

The Domestic Abuse Bill is the most appropriate vehicle to make this change: victims and survivors would benefit almost immediately, and it would help them in preventing further abuse and getting away from their perpetrator. This amendment can close that gap in the law, and I urge its support in this Committee.

[Lord Wolfson of Tredegar (Con)]

My Lords, I will start with the point made by my noble friend Lady Bertin. It is of course late; I am conscious of that. But I have to say that it is worth staying up late to hear the debate we have just had, with the quality of the contributions to which we have all just listened. Therefore, I will take a little time—I hope not too long—to respond to the debate, because this is obviously a very important issue.

I listened with great care to the way in which the amendment was presented and explained by the four noble Baronesses who proposed it. My noble friend Lady Morgan of Cotes explained in detail how the threat to disclose such images can lead women to give way on matters that are of the utmost importance, whether that be contact with children or telling the perpetrator where they are now living. The story of Natasha that she shared was powerful and was added to by the stories of Rachel and Alison, which we heard from the noble Baroness, Lady Crawley. It is right to say, as my noble friend Lady Morgan put it, that this is an issue essentially of timing and not necessarily of principle. I will come back to that point a little later.

Domestic Abuse Bill

Lord Wolfson of Tredegar Excerpts

Report stage & Lords Hansard
Monday 8th March 2021 Lords Chamber

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

My Lords, Labour is happy to support this group of amendments but recognises the realities of abuse that different communities face. We must ensure that what is in the Bill works in practice for victims of all backgrounds in the UK.

The technical aspects of the amendments have been described powerfully and in detail by other noble Lords. When I came to review them in preparation for today, I was struck by the complexity of the situation surrounding victims caught in these particular circumstances due to religious faith, and the clarity with which these amendments have been written in order to ameliorate the effects and consequences of that faith while unlocking the rights of the woman in that situation and disallowing perpetrators from using the get negotiations as an abusive bargaining chip.

I pay tribute to the noble Lords who have brought forward these amendments for the experienced and knowledgeable way in which they have highlighted this problem, and I am glad of the support across all areas of the House for the amendments, on the grounds of domestic abuse by way of controlling and coercive behaviour. As the noble Baroness, Lady Altmann, spoke of in her detailed opening speech, this is a defined form of abuse where the victim is treated as chattel. I was interested to hear my noble friend Lord Winston’s insights into the uniqueness of Judaism in not having one central authority, as well as my noble friend Lord Mendelsohn’s powerful and cogent arguments about what must be done, and the insight that he showed in his comment about not knowing what is actually going on with people who you think you know.

Inclusion in the Bill provides the opportunity to ensure that its provisions and protections are applicable to all. It specifically recognises the plight of these women by removing the shadow of abuse and control, restoring their right to exercise their faith through their ability to remarry and have children within their faith. The recognition would also offer these women other protections under the Act, once it is passed, if they are specifically included. It is in line with a key objective of the Bill: to raise awareness and understanding of domestic abuse and its impact on victims. Key is the ability of women to bring a case where they retain control of the process as the victims, rather than as a witness in a prosecution, having criminal sanctions as a civil party. It also clarifies that unreasonably preventing the obtaining of a get can include the imposition of unfair conditions, calibrated by reference to being substantially less favourable terms than the civil courts have ordered.

In conclusion, on International Women’s Day, this group highlights what so many noble Lords have said. The Bill needs to work for all victims and to do that it needs to grapple with the reality of how domestic abuse is experienced, in all the different ways that it is, by all of our communities across the UK—whatever their faith or ethnicity—by those living with it and trying to escape it.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, I am grateful to my noble friend Lady Altmann for tabling these amendments. As a number of speakers have said, it is particularly apt that we are debating this on International Women’s Day. The quality of speeches in this debate is a testament to the strength of feeling across the House. Indeed, the standard of speeches has set a very high bar for the rest of Report.

I hope the House will forgive me if I depart from my prepared text to pick up two comments by my noble friend Lord Cormack. He first said that all were equal under the law. I respectfully agree entirely. Towards the end of his short but powerful contribution, he also said, if I took it down correctly, “The rule of law is what makes this a civilised country.” Again, I respectfully agree, and those two propositions guide not only the work of my department but my approach to this matter.

Amendments 1 and 3 would add a sixth limb to the list of behaviours in Clause 1(3) which count as abusive; namely, the unreasonable refusal to agree to the granting of a religious bill of divorce, or get, which is necessary to dissolve a Jewish religious marriage. The threat of such a refusal would also be caught by the amendment. It is undeniable that women who are refused a get by their husbands suffer long-lasting and significant consequences. A woman who has not received a get is regarded in the eyes of Jewish religious law as still married. She is therefore unable to remarry, but that is not the only disability which she suffers. Perhaps more importantly, if she does not remarry but has further children with another Jewish partner, those children will be severely restricted as a matter of Jewish law as to whom they are later able to marry.

The term applied in Jewish law to a woman whose husband refuses to give her a get, being an “agunah” or “chained”, is thus apt and tragic. I know that Jewish religious authorities are concerned about the problem but have not, so far, found a solution to it within Jewish religious law. That is a source of regret to many, but not something which English law alone can solve. While I accept, as the noble Lord, Lord Palmer, put it, that this issue goes back to medieval times and may go back further—it is certainly of long standing—it is a matter which ultimately, so far as Jewish law is concerned, the Jewish religious authorities themselves have to deal with. If the undoubted abilities of the mother of the noble Lord, Lord Winston, were insufficient to resolve this problem—I pass on congratulations from the Front Bench to him on his wedding anniversary—and she did not succeed with all her talents, one wonders where the solution will come from.

While English law cannot solve this problem, there is something which English law can and should deal with. As the noble and learned Lord, Lord Mackay of Clashfern, reminded the House, this is not the first time English law has engaged itself in this area. He reminded the House of the significant work done by the late Chief Rabbi, Lord Jakobovits, of blessed memory, which led up to the legislation at the start of this century. English law can recognise that the refusal to grant a religious dissolution is all too often about the exertion of control by one spouse over the other—almost invariably, in the context of a get, by the husband over the wife—and, as such, may be considered a form of domestic abuse in certain circumstances

However, as my noble friend Lady Williams outlined in her response in Committee, we consider that this would sit better in the statutory guidance on domestic abuse provided for in Clause 73, rather than in the Bill. Again, as the noble and learned Lord, Lord Mackay of Clashfern, identified, that is because the list of abusive behaviours included in the definition is purposefully drafted to be high level. That definition is therefore to be applied by the courts and other agencies on a case-by-case, fact-specific basis. Including specific circumstances in the Bill, such as a refusal to grant a get, may lead to calls for inclusion of other examples which would have two adverse consequences. First, as a matter of drafting, it would make the definition unwieldy. Secondly, we do not want to give the impression by including specific examples that there is a hierarchy of abuse. We are concerned to capture and prevent all forms of domestic abuse.

Before I provide further reassurance on the matter of statutory guidance, which a number of noble Lords have referred to, it would make sense to respond to Amendment 79 first. That amendment seeks to ensure that both the guidance I have just referred to and the statutory guidance issued under Section 77 of the Serious Crime Act 2015 include the unreasonable refusal to grant a get within their discussion of controlling or coercive behaviour. While we would not want to prescribe in statute what statutory guidance must contain, the House will have heard my own and my noble friend Lady Williams’ previous commitments during Committee and subsequent discussions to address this issue in the statutory guidance provided for in Clause 73.

I am pleased to have met with my noble friend Lady Altmann, the noble Baroness, Lady Deech, and the noble Lords, Lord Mendelsohn and Lord Palmer, recently to discuss this matter and share our progress on including the issue within the statutory guidance. Home Office officials have been working closely with my noble friend Lady Altmann, with Jewish Women’s Aid and others to shape the reference to this issue in the statutory guidance. I was particularly pleased to hear my noble friend refer to the work done by my department’s officials in this regard as well.

I am pleased that we have now included specific reference to refusal to grant a get within the draft guidance. We have also included a specific case study on get refusal, provided by Jewish Women’s Aid—to whom I pay tribute, as my noble friend Lord Polak did—to bring the issue to life for those reading that guidance. Let me say this clearly and unambiguously: there are, and no doubt will be, cases in which the refusal to give a get may be considered a form of domestic abuse. As my noble friend Lady Deech reminded the House, that is especially the case if refusal to grant a get is used as a method to undermine a financial settlement imposed by the civil court. As the noble Lord, Lord Mann, reminded the House, the issue here is that that power affects all the negotiations which surround the issue of separation.

Turning back to the statutory guidance, we have also added a new section on spiritual abuse, a particular form of abuse where perpetrators use the victim’s faith or other belief system to control them. We have worked closely in this regard with the Faith and Violence Against Women and Girls Coalition, drawing on its expertise. The new section is now comprehensive and takes up a few pages within the guidance.

I respectfully agree with the noble Baroness, Lady Uddin, that this applies to all faiths. Spiritual abuse is not faith specific, and I assure the noble Lord, Lord Mann, that the Government’s approach is to be absolutely inclusive of all communities within our country. We will continue to work closely with the experts as we develop the guidance, and we will be publishing an updated version of the draft guidance shortly after Royal Assent for a formal consultation, where there will be a further opportunity for interested parties to contribute. As the noble Lord, Lord Paddick, said, because what we are dealing with here are ultimately issues of power and control, I hope that that will enhance the nature and quality of the consultation.

Domestic Abuse Bill

Lord Wolfson of Tredegar Excerpts

Report stage
Wednesday 10th March 2021 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, as I indicated in Committee, I agree with the general aim of the amendment, which is to ensure that criminal liability and punishment for a breach of a DAPO should occur only if the breach is proved to the criminal standard of proof. I heard from the noble Baroness, Lady Hamwee, and a number of other contributors to this short debate that the essential purpose of the amendment is for me to repeat from the Dispatch Box what I set out in a letter. I will aim to do just that.

I therefore make two main points. First, a breach of a DAPO is a criminal offence. As with all criminal offences, this will require the police to investigate the case and refer it to prosecutors, who will decide whether to pursue a prosecution. Secondly, the fact that a breach of a DAPO is a criminal offence means that, as with all criminal offences, the criminal standard of proof will apply automatically when the court is dealing with the case. A criminal conviction cannot be entered, or criminal sanctions imposed, unless and until the criminal standard of proof has been met.

The criminal standard of proof applies, therefore, when we are dealing with a breach of a DAPO. It does not apply when we are dealing with the making a DAPO. When we look at whether a DAPO should be made, the civil standard of proof applies—that is, the balance of probabilities. But in order to impose criminal sanctions for its breach, the criminal standard of proof will apply—that is, beyond reasonable doubt. I hope that has set out the position clearly and unambiguously.

Picking up on the point made by the noble Baroness, Lady Fox of Buckley, “beyond reasonable doubt” is the standard of proof; “without reasonable excuse” is an element of the offence, which would have to be proved to that standard. That is the difference between the two phrases.

We have taken this approach to the DAPO because we want to send a clear message to perpetrators that breach of an order is a serious matter and will be acted on. As I stated in Committee and during my engagement with the noble Baroness and others since, this approach is similar to other civil protective orders that carry criminal liability for breach, such as the non-molestation order, stalking protection order and knife crime prevention order. The approach is therefore consistent with our existing legal framework.

The noble Baroness, Lady Hamwee, asked why some victims may not want to go for criminal sanctions. That might not be their preference for a number of reasons. First, they may be concerned about the possible consequences for their partner or ex-partner and would not want them criminalised for a breach or, indeed, if the point of the question was, “Why isn’t the original order criminal?”

Fundamentally, the proposed orders are intended to be preventive and not punitive. They will enable courts to impose positive requirements which can help to achieve long-term sustainable behaviour change and challenge perpetrators to address their abusive behaviour. For example, the perpetrator might be required to attend a behaviour change programme or an alcohol or substance misuse programme, or undergo a mental health assessment. That may help those victims who wish to maintain a relationship with their partner or family member but want the abuse to stop. It is a strength of the DAPO that it is such a flexible remedy.

The noble Baroness, Lady Hamwee, raised contempt of court. If a victim wanted a breach of an order other than one made in a magistrates’ court to be dealt with as a civil contempt of court, they could make a committal application to the court, including for an arrest warrant, if necessary. In those circumstances, the court has the power to remand the perpetrator on bail or in custody. We would expect that victims’ views would be considered, together with other questions of public interest, when deciding which sanction for breach is appropriate.

On her point about the guidance, the noble Baroness, Lady Hamwee, will recall that in Clause 48 there is a provision for guidance to the police, and in Clause 73 there is provision for guidance to others, including victims.

This is one of the strengths of the DAPO when compared to other existing orders used in these cases, such as the domestic violence protection order. The responses to our consultation highlighted that the absence of a criminal sanction following breach of the DVPO limits the effectiveness of that order. We have therefore ensured that non-compliance with a DAPO is met with the appropriate consequences. In that regard, I reiterate a point I made in Committee: in its report, the Joint Committee did not raise issues with using the civil standard of proof for making a DAPO when examining the draft Bill.

As the noble Lord, Lord Ponsonby, noted, the noble Lord, Lord Paddick, raised on a number of occasions that we are making a move from civil standard to criminal standard when breached. With respect, I have set out the Government’s position in response to that on a number of occasions. We are satisfied that the system we have in the Bill is appropriate. There is nothing in the point, I would respectfully say, that there is something wrong with criminal sanctions on breach for an order made on the balance of probabilities. They are two conceptually distinct questions First, what is the standard for the order to be made? Secondly, what do you have to prove for criminal sanctions when there is a breach of that order?

As for the question on going to the magistrates’ court, one of the strengths of this order is that it can be issued quickly in response to a crisis incident, as with the existing domestic violence protection order. As the noble Lord, Lord Ponsonby of Shulbrede, said, ultimately, we are dealing with the question of protection for victims.

I hope that my explanations on the standard of proof in this short debate, alongside the explanations I provided in Committee and my subsequent discussions with noble Lords, have been helpful. I hope that what I have said today has been clear and unambiguous. I therefore respectfully invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee (LD) [V]]

My Lords, I think my noble friend Lord Paddick’s question about the underlying architecture, if that is the right phrase, still stands, but I will not pursue it now. I am grateful to the Minister for all he said about the application of the provisions. I did not make myself as clear as I should have done about what he explained as someone not wanting to go for criminal prosecution. That was not quite my point, which was about inability and due process, which is a term we would do well to keep in mind—due process for both parties.

The Minister has been very clear in his explanation of the standard. I am conscious of how much business the House has to get through today, so I will not prolong this. I beg leave to withdraw the amendment.

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[Lord Wolfson of Tredegar (Con)]

My Lords, first, I congratulate my noble friend Lady Newlove on bringing forward these amendments, which, as she said, will create a new criminal offence of strangulation and suffocation. A number of tributes have been paid to my noble friend; they are all well deserved and I associate myself and the Government with them. If I may pick up one phrase used by the noble Lord, Lord Blunkett, she has made a real difference and, moreover, in a really important area. I assure him and the House that we listen. I will listen to noble Peers on this and on other matters. We will not always agree but I will always listen.

There have been a number of powerful and brief contributions. The noble Baroness, Lady Jones of Moulsecoomb, was kind enough to thank the Government, which is very welcome. I will seek to make it a more regular occurrence but it is warmly accepted. As the noble Lord, Lord Hunt of Kings Heath, mentioned, and as my noble friend Lady Newlove identified, a number of organisations have worked hard in this area. Their names are on the record and they deserve the credit as well.

I am also personally grateful to the noble Lord, Lord Marks of Henley-on-Thames, for the discussions which he and I have had on this matter, together with the noble Lord, Lord Anderson of Ipswich. They have been extremely useful to me. Perhaps I may also pick out some good discussions I have had with somebody who did not contribute to this debate but has worked hard in this area: the noble Baroness, Lady Bertin. She certainly improved my knowledge of and focus on this matter.

My noble friend Lady Newlove has highlighted to the Government why this new offence was necessary. She has engaged with me and my officials, to whom I should also pay tribute for working at significant speed, together with Professor David Ormerod—I think I can now say Professor David Ormerod CBE. This is not the first time, and will not be the last, that he has contributed significantly to the criminal law of this country. I will take a few moments to explain the architecture of the offence, because it is a new offence.

The key amendment in the group is Amendment 49, which provides for the substantive new offence. Strangulation and suffocation are always dangerous and, subject to the issue of consent, which was raised by a number of noble Lords and which I will come back to, they are wholly unacceptable. Strangulation can not only injure but be used by perpetrators to cause fear or exert control over their victim, as part of an abusive relationship.

Amendment 49, as I have stated, seeks to create a new offence of non-fatal strangulation or suffocation in England and Wales. It applies to behaviour which is currently criminal, so the aim is to improve the ability to prosecute such offences effectively—a point made by a number of noble Lords. The offence is designed to deal with assaults on any person where this affects their ability to breathe, whether by application of force to the neck—that is, strangulation—or by any other act; for example, by suffocation or constriction. The offence applies to all cases where strangulation or suffocation takes place, including those that occur in a domestic abuse situation. To pick up the point made by the noble Lord, Lord Marks of Henley-on-Thames, this offence is not restricted to domestic abuse situations but it is quite right that it is in this Bill, because it is often found in those situations.

Although such criminal behaviour can currently be captured under the offence of battery or, where more serious harm is caused, via the offence of causing actual bodily harm under the Offences against the Person Act 1861, the Government have been persuaded of the need to distinguish such crimes through a stand-alone offence. Serious offences against the person currently require actual bodily harm, which can make cases of strangulation or suffocation potentially difficult to prosecute. That is because the victim may have no, or limited, signs of injury. The problem can be compounded by the fact that the existing charge of battery, which carries a penalty of six months’ imprisonment, does not enable the seriousness of the offence as experienced by the victim—the terror caused during the assault or the often long-lasting psychological effect of it—to be suitably punished.

Unlike the summary-only offence of battery, the new offence of strangulation or suffocation will not be time-limited if a prosecution does not commence within six months of the offence. But perhaps of greater importance here, as my noble friend Lady Newlove identified, the new offence will expose the defendant to a more serious sentence than the current six months’ imprisonment for battery. That is because the nature of the harm required to qualify for the maximum five-year penalty has been reduced.

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Moved by

[Lord Wolfson of Tredegar]

20: Clause 55, page 35, line 25, leave out “domestic abuse” and insert “accommodation-based”
Member’s explanatory statement
This amendment, and the Minister’s amendment at page 35, line 30, would change the current label of “domestic abuse support” in Clause 55 to “accommodation-based support” and are consequential on the Minister’s other amendments to Clauses 55 and 56 relating to “other local authority support”.

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

My Lords, as the noble Baroness, Lady Finlay, said, the Minister has been generous with his time and has spoken with the group twice. The purpose of this amendment is well understood by the contributors to this short debate and by the Minister. The purpose is simple: it is to close a loophole, to make sure that all child contact centres reach the necessary standard, that there is some form of overview and accreditation and that there are consequences if that standard is not reached.

As the noble Baroness, Lady Burt, succinctly put it, we know that, as far as the courts are concerned, only accredited child contact centres should ever be used. However, what about other referrals to child contact centres? What about private referrals or referrals by local councils or other organisations such as Barnardo’s?

In the discussions that we have had with the noble Lord, Lord Wolfson, he has asked for proof that there is a problem. As the noble Baroness, Lady Burt, said, it is difficult to provide proof, because you are looking for organisations and child contact centres that do not necessarily advertise their services. If they run into problems, they can easily withdraw the advertising and re-emerge in another form, but with the same people running them. At the moment, there are no consequences for people playing fast and loose with the system, if I may put it like that. There needs to be some consistency across the range of services and regulated services that children use. This anomaly needs to be addressed and I can see no better place to do it than in this Bill with this amendment right now. I and my party will support the amendment if it is moved to a vote.

[Lord Wolfson of Tredegar (Con)]

My Lords, as I indicated in Committee, I fully recognise that the provision of child contact centres is extremely important to supporting families and enabling parents to have contact with their children, while at the same time providing a safe environment that protects children and adults from potential harm. As the noble Baroness, Lady Burt, put it, there is no agenda here, in the sense that we all have the same aim. The question is the best means of achieving it.

It is essential that all children experience the same high level of care and safeguarding where circumstances have necessitated their involvement with the family justice system and child contact centres or services. I thank noble Lords and the National Association of Child Contact Centres for their engagement with me and my officials since Committee. I have met, on a number of occasions, several noble Lords who have spoken in support of this amendment. I have found those discussions extremely helpful and I am grateful to them for the time that they gave to discussing the issue with me in more detail.

This amendment differs from the amendment debated in Committee, because it provides that the child contact centres should be accredited in accordance with national standards to be specified in regulations laid by the Secretary of State. The amendment in Committee did not specify who would set the accreditation standards. I continue to question whether the statutory accreditation proposed in this amendment is required or would provide a more effective form of regulation than that which currently exists through the NACCC accreditation framework and the statutory regulations governing local authorities.

I extend my sincere thanks to the NACCC for the useful overview of the current landscape of unaccredited child contact centres and services in England and Wales that it produced following Committee. That review was conducted at some pace and has been used to inform further discussions on this matter. While I accept and take on board the point made by the noble Baroness, Lady Burt, and the noble Lord, Lord Ponsonby of Shulbrede, that it is hard to identify evidence in this area, it is fair to say that the work that was done was at a somewhat high level.

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[Baroness McIntosh of Pickering (Con) [V]]

My Lords, may I address head on two points that the Minister has raised? First, the case has been made of how difficult it is to access the evidence and whether it is in the public interest to put this in the public domain. This is an extremely sensitive area and we have done our best to provide the evidence on the two occasions when my noble friend has requested it. Secondly, there is a legislative loophole. The Government undertook to come forward with regulations to establish the regulatory framework to set the standards in place and they have failed to do so. For what reason have the Government not brought forward these regulations and why are they not prepared to bring them forward at this time? I am at a loss to understand why that is the case.

[Lord Wolfson of Tredegar (Con)]

I will be brief. On the first point that my noble friend raised about evidence, I accept that people have done their best in the short time available. However, with respect, the points that I made about the high-level nature of that evidence stand. At the moment, we are not persuaded that there is a need to legislate in this area. On the second point about the loophole, I would be repeating what I said earlier. For the reasons that I set out, the position at the moment is that the use of unaccredited child services is rare. In circumstances where they are used by local authorities, that would be covered by their statutory duty under the Children Act. In those circumstances, we are not persuaded that the amendment is required or would even necessarily be effective.

[Baroness Finlay of Llandaff (CB) [V]]

I am most grateful to the Minister for his fulsome reply and for trying to get to grips with this issue, but I point out that it has been 14 years since the need for standards was originally raised. I did not mention some cases in my speech today because I have not been able to check them out in detail—we could not track down the details of the services—but I have names of services that I would be prepared to share in confidence with the Minister. I believe that there is evidence that this area is unregulated, that there is a gap and that children are at risk now, today. If we are dealing with domestic abuse, we must not leave children vulnerable. Therefore, I wish to test the opinion of the House.

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Moved by

[Lord Wolfson of Tredegar]

22: Clause 55, page 35, line 30, leave out first “domestic abuse” and insert “accommodation-based”
Member’s explanatory statement
See the explanatory statement to the Minister’s amendment at page 35, line 25.

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Moved by

[Lord Wolfson of Tredegar]

32: Clause 62, page 39, line 23, after “person” insert “—
(a) is, or is at risk of being, a victim of domestic abuse;(b) ”Member’s explanatory statement
This amendment ensures that rules of court made by virtue of subsection (1) of Clause 62 must make provision which enables the court to make a special measures direction in respect of a party or witness in civil proceedings who is a victim, or is at risk of becoming a victim, of domestic abuse.

[Lord Wolfson of Tredegar (Con)]

My Lords, I apologise for the short intermission while we changed places. The government amendments in this group relate to special measures and the ban on cross-examination in person as they operate in civil proceedings. The Government have taken careful note of the debate in Committee on Clauses 62 and 64, particularly the argument that there should be equivalent protections for the victims of domestic abuse in the civil courts as in family courts. I am personally grateful to the noble Lord, Lord Marks of Henley-on-Thames, for our discussions about these issues. As I explained in Committee, while we want to ensure that there is parity between each of the jurisdictions, we also need to build in allowances for the differences. That is why the provisions in respect of cross-examination and special measures in civil proceedings differ from those in family proceedings.

I shall speak first to Amendment 32 in respect of Clause 62. It is worth noting that the original provision in the Bill was based on recommendations made by the Civil Justice Council in its report published last year entitled Vulnerable Witnesses and Parties within Civil Proceedings. However, having reflected on the representations we have received and the cogent arguments put forward in Committee by the noble Lord, Lord Marks, Amendment 32 would extend eligibility for special measures to those at risk of domestic abuse in addition to the existing provisions which provide eligibility for special measures for the victims of specified offences. We see the force of the argument to include this measure so that there will be an equivalent level of protection for domestic abuse victims across the jurisdictions. The Civil Procedure Rules will lay out how this is to work in practice, but the instruction in the Bill is a clear indication that those victims who have not reported their perpetrator to the police will have an opportunity to let the court know where they are at risk of domestic abuse.

As the existing clause provides, judges will still need to consider whether the quality of a person’s evidence or the person’s participation in proceedings is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more special measures directions. However, we believe that including provision for those at risk of domestic abuse will mean that these victims will be covered and given the ability to avail themselves of special measures.

I shall say a further word on that, which I mentioned in Committee as well. By their nature, civil cases have the potential to cover a much broader range of circumstances where there is no prior connection between the parties; for example, where a victim is suing an alleged perpetrator of sexual abuse, an action against an employer where abuse is alleged, or in a boundary dispute. This amendment is therefore an appropriate step. The breadth of cases in the civil courts means that it may not be appropriate in all cases to grant special measures, although our amendment makes it likely that they will be granted where there is a genuine need.

I turn now to Amendments 33 to 40 to Clause 64. These introduce an automatic ban on cross-examination in person by a litigant in person if the party to proceedings has been convicted or cautioned in relation to a specified offence against a party to the proceedings or where there is a protective injunction between the parties. The witness may also introduce additional evidence to prove that they are a victim of domestic abuse, and this too can give rise to an automatic ban. The evidence would be based on legal aid evidentiary standards and may include a letter from a GP or an employer. This is provided for in family courts through Clause 63. These amendments would therefore move the position in civil courts substantially closer to the provision in family courts on a ban on cross-examination. However, as with the point I made in regard to Clause 62, we have to be mindful of the differences between the two jurisdictions.

The clause, in so far as it relates to banning the cross-examination of vulnerable parties or witnesses, again stems from the report by the Civil Justice Council. The council recommended that the prohibition of cross-examination by a self-represented party should be extended to cover civil proceedings, thereby ensuring some parity with the criminal and family jurisdictions. The council did caution, however, that the ban or prohibition should not be automatic and absolute, bearing in mind the broad range of cases that come before the civil courts.

As I have said previously in our debates on the Bill, we have concerns in relation to the civil jurisdiction that there should be an automatic ban on cross-examination where the position is only that someone is charged with an offence against an individual; that is, where the facts of the case have yet to be proven. In the circumstances where someone is charged with an offence, we believe that it should be left to the discretion of the court to determine whether a ban is appropriate on the facts of a particular case. That is because, as I have said, civil and family jurisdictions are different in type of case they deal with, the civil jurisdiction having a much wider range.

I believe that these amendments will give better protection to victims of domestic abuse and bring closer parity between the civil and family jurisdictions. I beg to move.

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

My Lords, I explained in Committee the reasons for my amendments, which were directed at ensuring that special measures and the prohibition of direct cross-examination should be applied in civil cases on the same or a very similar basis as they are to be in family cases. Our debates highlighted the difficulties, fear and trauma for parties and witnesses in giving evidence and taking part in proceedings where they were victims or at risk of being victims of domestic abuse at the hands of other parties or witnesses. We spoke of the effect of reliving the trauma of abuse in subsequent court proceedings and the fear of the consequences of giving or challenging evidence given by or in the presence of perpetrators.

I argued that in many civil proceedings the risks and effects were the same. I mentioned disputes over property and goods, landlord and tenant disputes, employment disputes, inheritance disputes and business disputes—particularly when partners break up and the separation of their joint business interests gives rise to litigation. It is a truism for litigation lawyers that the disputes giving rise to the most bitterness and unpleasantness are precisely those where the litigants have a close personal connection. However, of course I take the Minister’s point that the range of disputes in civil cases is very much broader than it is in family cases.

The Government have listened to those concerns. I am particularly grateful to the Minister for the time that he and officials in his department made available to consider these issues and for the very useful discussions we had, which have led us to the position that special measures are now to be extended to persons who are or who are at risk of being a victim of domestic abuse, where the original unamended clause required that the person had to be the victim of a specified offence for which the perpetrator would have had to have been convicted, cautioned or charged.

I am delighted that the Government have agreed, no doubt because so many cases of domestic abuse never reach that stage—largely because so much abuse goes unreported or is never the subject of criminal investigation—that victims and those at risk of being victims should be protected in civil proceedings, as they are to be in family proceedings.

Although the amendments on direct cross-examination are complex, as the Minister has explained, they effectively offer broadly equivalent protection to victims of abuse in civil proceedings to that offered in family proceedings, which was the aim of my amendments. In addition to the discretionary protection which the court is to be able to give as a result of new Section 85F of the Courts Act 2003, to be introduced by Clause 64, there is now to be a clear bar on direct cross-examination in cases where the victim is a victim of an offence or protected by an injunction or where there is evidence of domestic abuse against the victim by a party or witness. The nature of the evidence to be required to trigger the mandatory bar will be specified in regulations. It is to be hoped that no undue formality will be required, but I am confident that will be the case.

These amendments achieve what I set out to achieve: to protect witnesses and parties in civil proceedings who have been subject to domestic abuse. I am therefore very pleased to have been able to add my name to the amendments and say—it is not the first time it has been said today—that this process has shown the House at its best. It has been a model of co-operation between some of us on the Opposition Benches and the Government of the day.

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I conclude by drawing on something completely different: the advent of remote working, which I am actively involved with in both criminal and, more importantly, family proceedings. We are developing different ways of remote working in real time. For example, in videoconferences, should a party be able to ask that their face not be available to be seen by all parties taking part in the case? These are difficult matters which we are dealing with day to day; at the moment there is no guidance as such, other than consulting with colleagues and senior judges. These are very live matters which may be on the horizon to be further regulated in future. However, for now, I am glad to accept these government amendments.

[Lord Wolfson of Tredegar (Con)]

My Lords, I hope the House will forgive me if I am brief, because I am conscious there is a lot of business still to get through. I thank the noble Lord, Lord Marks of Henley-on-Thames—my co-sponsor of these amendments—for his kind words and engagement. As he said, we have reached the position where there are broadly equivalent provisions in place across the jurisdictions.

I am also grateful for the support of the noble Lord, Lord Ponsonby of Shulbrede. The point he raised about remote working and the courts having to work in real time in dealing with the pandemic and its effects is very important. To say any more at this stage would take me both outside the confines of this Bill and well off my brief. However, I have no doubt we will discuss it in this and other contexts in future.

Amendment 32 agreed.

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Moved by

[Lord Wolfson of Tredegar]

33: Clause 64, page 47, line 21, at end insert—
“85EA Prohibition of cross-examination in person: victims of offences(1) In civil proceedings, no party to the proceedings who has been convicted of, or given a caution for, a specified offence may cross-examine in person a witness who is the victim of that offence.(2) In civil proceedings, no party to the proceedings who is the victim of a specified offence may cross-examine in person a witness who has been convicted of, or given a caution for, that offence.(3) Subsections (1) and (2) do not apply to a conviction or caution that is spent for the purposes of the Rehabilitation of Offenders Act 1974, unless evidence in relation to the conviction or caution is admissible in, or may be required in, the proceedings by virtue of section 7(2), (3) or (4) of that Act.(4) Cross-examination in breach of subsection (1) or (2) does not affect the validity of a decision of the court in the proceedings if the court was not aware of the conviction or caution when the cross-examination took place.(5) In this section—“caution” means—(a) in the case of England and Wales—(i) a conditional caution given under section 22 of the Criminal Justice Act 2003,(ii) a youth conditional caution given under section 66A of the Crime and Disorder Act 1998, or (iii) any other caution given to a person in England and Wales in respect of an offence which, at the time the caution is given, the person has admitted;(b) in the case of Scotland, anything corresponding to a caution falling within paragraph (a) (however described) which is given to a person in respect of an offence under the law of Scotland;(c) in the case of Northern Ireland—(i) a conditional caution given under section 71 of the Justice Act (Northern Ireland) 2011, or(ii) any other caution given to a person in Northern Ireland in respect of an offence which, at the time the caution is given, the person has admitted;“conviction” means—(a) a conviction by or before a court in England and Wales, Scotland or Northern Ireland;(b) a conviction in service disciplinary proceedings (in England and Wales, Scotland, Northern Ireland, or elsewhere), including—(i) in the case of proceedings in respect of a service offence, anything that under section 376(1) and (2) of the Armed Forces Act 2006 (which relates to summary hearings and the Summary Appeal Court) is to be treated as a conviction for the purposes of that Act, and(ii) in the case of any other service disciplinary proceedings, a finding of guilt in those proceedings;(c) a finding in any criminal proceedings (including a finding linked with a finding of insanity) that the person concerned has committed an offence or done the act or made the omission charged;and “convicted” is to be read accordingly;“service disciplinary proceedings” means—(a) any proceedings (whether or not before a court) in respect of a service offence (except proceedings before a civilian court within the meaning of the Armed Forces Act 2006);(b) any proceedings under the Army Act 1955, the Air Force Act 1955, or the Naval Discipline Act 1957 (whether before a court-martial or before any other court or person authorised under any of those Acts to award a punishment in respect of an offence);(c) any proceedings before a Standing Civilian Court established under the Armed Forces Act 1976;“service offence” means—(a) a service offence within the meaning of the Armed Forces Act 2006, or(b) an SDA offence within the meaning of the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059);“specified offence” means an offence which is specified, or of a description specified, in regulations made by the Lord Chancellor.(6) The following provisions (which deem a conviction of a person discharged not to be a conviction) do not apply for the purposes of this section to a conviction of a person for an offence in respect of which an order has been made discharging the person absolutely or conditionally—(a) section 14 of the Powers of Criminal Courts (Sentencing) Act 2000;(b) section 82 of the Sentencing Code;(c) section 187 of the Armed Forces Act 2006 or any corresponding earlier enactment.(7) For the purposes of this section “offence” includes an offence under a law that is no longer in force.85EB Prohibition of cross-examination in person: persons protected by injunctions etc (1) In civil proceedings, no party to the proceedings against whom an on-notice protective injunction is in force may cross-examine in person a witness who is protected by the injunction.(2) In civil proceedings, no party to the proceedings who is protected by an on-notice protective injunction may cross-examine in person a witness against whom the injunction is in force.(3) Cross-examination in breach of subsection (1) or (2) does not affect the validity of a decision of the court in the proceedings if the court was not aware of the protective injunction when the cross-examination took place.(4) In this section “protective injunction” means an order, injunction or interdict specified, or of a description specified, in regulations made by the Lord Chancellor.(5) For the purposes of this section, a protective injunction is an “on-notice” protective injunction if—(a) the court is satisfied that there has been a hearing at which the person against whom the protective injunction is in force asked, or could have asked, for the injunction to be set aside or varied, or(b) the protective injunction was made at a hearing of which the court is satisfied that both the person who applied for it and the person against whom it is in force had notice.85EC Prohibition of cross-examination in person: evidence of domestic abuse(1) In civil proceedings, where specified evidence is adduced that a person who is a witness has been the victim of domestic abuse carried out by a party to the proceedings, that party to the proceedings may not cross-examine the witness in person.(2) In civil proceedings, where specified evidence is adduced that a person who is a party to the proceedings has been the victim of domestic abuse carried out by a witness, that party may not cross-examine the witness in person.(3) In this section—“domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2021;“specified evidence” means evidence specified, or of a description specified, in regulations made by the Lord Chancellor.(4) Regulations under subsection (3) may provide that any evidence which satisfies the court that domestic abuse, or domestic abuse of a specified description, has occurred is specified evidence for the purposes of this section.”Member’s explanatory statement
This amendment provides for an automatic prohibition in civil proceedings on the cross-examination of witnesses in person in certain cases, similar to the provisions in Clause 63. For example, it prohibits a party who has been convicted of a specified offence from cross-examining in person a witness who is the victim of that offence. “Specified” here means specified in regulations made by the Lord Chancellor.

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Moved by

[Lord Wolfson of Tredegar]

41: After Clause 64, insert the following new Clause—
“Orders under section 91(14) of the Children Act 1989Orders under section 91(14) of the Children Act 1989
(1) The Children Act 1989 is amended as follows.(2) In section 91 (effect and duration of orders etc.), at the end of subsection (14) insert—“For further provision about orders under this subsection, see section 91A (section 91(14) orders: further provision).”(3) After section 91 insert—“91A Section 91(14) orders: further provision(1) This section makes further provision about orders under section 91(14) (referred to in this section as “section 91(14) orders”).(2) The circumstances in which the court may make a section 91(14) order include, among others, where the court is satisfied that the making of an application for an order under this Act of a specified kind by any person who is to be named in the section 91(14) order would put—(a) the child concerned, or(b) another individual (“the relevant individual”),at risk of harm.(3) In the case of a child or other individual who has reached the age of eighteen, the reference in subsection (2) to “harm” is to be read as a reference to ill-treatment or the impairment of physical or mental health.(4) Where a person who is named in a section 91(14) order applies for leave to make an application of a specified kind, the court must, in determining whether to grant leave, consider whether there has been a material change of circumstances since the order was made.(5) A section 91(14) order may be made by the court—(a) on an application made—(i) by the relevant individual;(ii) by or on behalf of the child concerned;(iii) by any other person who is a party to the application being disposed of by the court;(b) of its own motion.(6) In this section, “the child concerned” means the child referred to in section 91(14).””Member’s explanatory statement
This amendment inserts a new section 91A into the Children Act 1989 which makes further provision about the circumstances in which the court may make an order under section 91(14) of that Act (also known as a barring order), including where the court is satisfied that the making of a further application for an order under that Act, by any person to be named in the order, would put the child concerned, or another individual, at risk of harm.

[Lord Wolfson of Tredegar (Con)]

My Lords, Amendments 41 and 104 relate to Section 91(14) of the Children Act 1989. Last year we committed to exploring whether an amendment to the Bill was needed to clarify that Section. As noble Lords will be aware, it deals with barring orders, as they are often called, which allow courts to bar individuals from making further applications without permission of the court. Importantly, therefore, the order does not prevent access to the court; it prevents making an application without first obtaining the permission of the court to do so.

In Committee, the noble Lord, Lord Rosser, and my noble friend Lady Newlove asked for an update on the progress of the work. On responding to an amendment on barring orders put forward by the noble Lord, Lord Ponsonby of Shulbrede, I said that I would consider the issue of Section 91(14) carefully ahead of this next stage. I can assure noble Lords that I have done precisely that.

The sad fact is that perpetrators sometimes use the family court as a way to continue their abuse, often bringing their victims back to court repeatedly, which can in itself be a traumatising process. It is an abuse of the victims and also, therefore, an inappropriate use of the court process.

As it is currently formulated, Section 91(14) of the Children Act 1989 does not include any detail as to the circumstances in which such barring orders should be used. Courts have therefore elaborated the principles for when such barring orders may, and should, be made. Last year we heard compelling evidence from the expert panel in its report Assessing Risk of Harm to Children and Parents in Private Law Children Cases that, while they can be an effective measure, Section 91(14) barring orders are not being used sufficiently to prevent perpetrators continuing their abuse through the use of court applications under the Children Act 1989.

Before I go further, I want to pay respectful tribute to the noble and learned Baroness, Lady Butler-Sloss, who delivered the seminal re P judgment in this area of law back in 1999. For over two decades the guidelines included in that leading judgment have been regarded as the main reference point for judges when they are making the often difficult decision on the use of Section 91(14). It is fair to acknowledge that it is clear from those guidelines that specific cases and types of harm, including harm from domestic abuse, are not excluded from consideration for a barring order. None the less, now is the right time for us to act on the evidence presented by the harm panel about how Section 91(14) is being understood and applied, particularly in domestic abuse circumstances.

As is evident from the many debates we have had on the Bill, we now know far more about the prevalence of domestic abuse and the different forms that it can take than we did in 1999. It is therefore right that as the Bill approaches the end of its parliamentary journey, we use the opportunity to clarify the ambit and application of Section 91(14) to ensure that we are providing greater protection to victims, survivors and their children.

The Government are clear that barring orders are available to protect parents and children where further proceedings would risk causing them harm, and particularly where proceedings could be a form of continuing domestic abuse. To that end, Amendment 41 introduces a new provision into the Children Act 1989: new Section 91A. The new section clarifies that the circumstances in which a court may make a barring order include where the court is satisfied that a further application made by the named person would put the child or another individual—for example, the parent victim—at risk of harm. It is a non-exhaustive example; the discretion is preserved, but an additional statutory indication is provided. As I have mentioned, this amendment responds to recommendations made by the harm panel.

The aim of Amendment 41 is therefore to make it clearer to courts and practitioners that Section 91(14) barring orders are indeed available where a further application would pose a risk of harm to a child or a parent victim, and in particular where that application could constitute further domestic abuse. In that context, I should highlight to noble Lords that while this amendment does not expressly mention domestic abuse, it refers to the concept of “harm” that is already found in the Children Act 1989. This is because the definition in Section 31(9) of the Children Act is already very broad. It already includes coercive control and other forms of domestic abuse, along with many other forms of harm.

We touched on that point in the government response to the Joint Committee’s recommendation to amend the definition of harm. As we said there, we believe that singling out a specific form of harm in any part of the 1989 Act could have unintended negative consequences and risk appearing to give greater weight to one form of harm than another. We do not want to create a hierarchy of harm. We have therefore opted for the wider concept of harm, consistent with the approach in the Children Act.

We have also responded to the harm panel’s report in a further way. The new Section 91A makes it clear that in determining whether to grant permission to make an application to a person who is subject to a barring order under Section 91(14), the court must consider whether there has been a material change of circumstances since the barring order was made. Our intention is to require that courts consider carefully whether the circumstances that gave rise to the barring order have materially changed, such that permission to apply should be granted. The amendment does not draw a red line such that permission can be granted only if there has been a material change of circumstances, but we believe that the inclusion of this provision, which requires the court to consider this question, will offer further protection to domestic abuse victims.

The amendment also makes it clear that courts can make these orders on their own initiative—of their own motion, as it used to be said—for example, without an application being made by the victim for an order to be made. This, too, is a response to the harm panel’s recommendations. We want to put beyond doubt that there need not be an application for a barring order in order for the court to consider making one. Of course, the court will still need to give due consideration to the making of such an order, but the amendment clarifies that the court can make an order on its own initiative.

The Government are therefore confident that the amendment will mean that barring orders are used more often by courts to protect victims of domestic abuse where further applications put them at risk of harm. It will also make sure that permission to apply will be granted only where the court has considered whether there has been a material change of circumstances since the order was made, and also clarify that courts can make these orders on their own initiative. For those reasons, I beg to move.

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

My Lords, we support this government amendment and the amendment of the Title of the Bill that goes with it. As the Minister has explained, Section 91 of the Children Act permits the court to make a barring order—that is, an order forbidding someone, usually an applicant who has failed to persuade a court to make an order in his or her favour, from making an application for an order of a particular kind; this is usually but not always a repeat application—with respect to a child, importantly, without the leave of the court.

An order under this section still permits a further application for an order to be made if the court decides to permit it, which the court may in its discretion decide to do. This amendment, as the Minister has explained, extends the discretion to make a barring order if a further application would put the child concerned, or another individual, at risk of harm. That is the real purpose and merit of this amendment: it is for the protection from repeated litigation of those who might be victims of domestic abuse, when that repeated litigation often amounts to a particularly unpleasant form of harassment by legal proceedings.

The jurisdiction is similar to the court’s jurisdiction to make civil restraint orders and civil proceedings orders against vexatious and unmeritorious repeat litigants in civil cases. Under this government amendment, a person subject to a barring order may of course seek permission to apply further to the court. That application for permission will be considered, but the court considering whether permission should be given to make a fresh application must consider whether there has been a change of circumstances since the making of the original order. That, I suggest, seems entirely sensible. The amendment therefore strikes a careful and judicious balance between protecting potential applicants and providing a safeguard against people being harassed by unmeritorious repeat litigation.

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One case that I dealt with comes to mind. It had come to court 24 times in six years. The child was six years old, which means that every three months that child’s issues had come to court, as a child arrangements order. There were no allegations of domestic abuse. It was a youngish couple who were using the court system to resolve matters that seemed trivial. At what we hoped would be the final time we were dealing with this case, we came up with six pages of guidance for the child arrangements, with a lot of detail. At the recommendation of the legal adviser, we put in place a barring order to get those parents to sort out those problems themselves. As I say, there was no allegation of domestic abuse in that case, so it is slightly different from that which the noble Lord has put forward today. Nevertheless, it was certainly appropriate for a barring order. I support the amendment as moved by the Government.

[Lord Wolfson of Tredegar (Con)]

My Lords, again, I hope that the House and the noble Lords, Lord Marks of Henley-on-Thames and Lord Ponsonby of Shulbrede, will forgive me for being brief. I am conscious of the amount of the work that we have to get through. I am grateful for their comments and support for the purpose and effect of these amendments. As the noble Lord, Lord Marks, put it, we are striking a careful and judicious balance here between access to courts and preventing the court process being used as a vehicle for abuse. As we were reminded by the noble Lord, Lord Ponsonby of Shulbrede, it is not only in cases of domestic abuse that Section 91(14) is available, although that is the purpose of the amendments before the House.

Again, with apologies for being brief, because there appears to be broad agreement, I beg to move Amendment 41.

Amendment 41 agreed.

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[Lord Rosser (Lab) [V]]

My Lords, the proposed new clause in this amendment moved by the noble Baroness, Lady Jones of Moulsecoomb, would disapply the presumption that parental involvement furthers a child’s welfare in cases where there has been domestic abuse. It would also prohibit unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences where there are ongoing criminal proceedings for domestic abuse or where the parent has a criminal offence for domestic abuse. I moved a similar amendment in Committee which did not receive the backing of a number of speakers in the debate or of the Minister.

In his response in Committee, the Minister said:

“I have a great deal of sympathy for the aims of these amendments, and I agree that more needs to be done to ensure that the courts take proper account of the impact that domestic abuse can have on children’s well-being and safety.”


He went on to say that

“following the recommendations from the Expert Panel on Harm in the Family Courts, the Government launched a review on the presumption of parental involvement”

which

“will focus on the presumption … and the impact on children’s welfare of the courts’ application of these provisions.”

He argued that it would

“be premature to amend the legislation relating to the presumption … before gaining the in-depth evidence from the review.”—[Official Report, 3/2/21; col. 2222.]

However, we should not forget that Women’s Aid’s Nineteen Child Homicides documents the cases of 19 children in 12 families who were killed in circumstances relating to child contact by a father who was the perpetrator of domestic abuse. The Expert Panel on Harm in the Family Courts said that it had

“received sufficient evidence to conclude that in the cohort of cases described in submissions the presumption further reinforces the procontact culture and detracts from the court’s focus on the child’s individual welfare and safety.”

The report also states:

“The panel is clear, however, that the presumption should not remain in its present form.”


There is thus some clear and, indeed, tragic evidence that the present arrangements relating to the presumption of parental involvement as opposed to solely what is in the best interests of the child, including its welfare and safety, are just not delivering the protections they should. However, in the light of the concerns expressed by some noble Lords in Committee, which have been repeated today, and the current review of the presumption of parental involvement, we did not put down the amendment for Report. Instead, we will continue to pursue this issue outside the discussions and debates on the Bill.

[Lord Wolfson of Tredegar (Con)]

My Lords, as the noble Baroness, Lady Jones of Moulsecoomb, has explained, Amendment 42 seeks to disapply the presumption found in the Children Act—that parental involvement furthers the child’s welfare—when there has been domestic abuse that has affected the child or the other parent.

The amendment also seeks to prohibit unsupervised contact by a parent in a number of different circumstances: when they are on bail awaiting trial; when there are ongoing criminal proceedings for a domestic abuse offence; when a fact-finding hearing concerning domestic abuse allegations is pending; and when domestic abuse is proven in such a fact-finding hearing or as a result of a criminal conviction for a domestic abuse offence.

In Committee, many noble Lords spoke passionately about the presumption of parental involvement and gave a number of examples of unsupervised contact leading to tragic results in cases which involved domestic abuse. The noble Lord, Lord Rosser, reminded us of some of them this evening. As I said in Committee, I have significant sympathy for the aims of this amendment and agree that more needs to be done to ensure that the courts are taking proper account of the impact domestic abuse can have on children’s well-being and safety. That is why this Government, in November 2020, following the recommendations from the Expert Panel on Harm in the Family Courts, launched a review of the presumption of parental involvement. The noble Lord, Lord Rosser, and the noble Baroness, Lady Uddin, referred to the harm panel’s report, but it is important to acknowledge that the panel did not call for immediate legislative change, despite hearing evidence from more than 1,200 parties. Instead, the panel recommended that a full review be undertaken by the Government, and that is precisely what we are doing.

In my respectful view, the panel was right to do so because, as the debate in Committee demonstrated, this is a complex and nuanced issue, with a significant real-world impact for the thousands of families who go through the family courts every year. That review will focus on the application of the provision and its exceptions, and the impact on children’s welfare of the courts’ application of those provisions. Through the review, we will develop a strong evidence base and ensure that any changes brought about as a result of it are rooted in a solid understanding of the effect of the presumption and the associated evidence on child welfare. I remain of the view that it would be premature to amend the Children Act in the way proposed by the amendment before gaining the in-depth evidence and response from the review.

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

My Lords, the noble Baroness, Lady Bertin, powerfully moved this amendment and went into the detail of the problems that arise when refuge addresses are revealed. I fail to understand why judges, in her words, are turning a blind eye to the requirement to keep the secrecy of a refuge; I fail to imagine why that might be the case. Nevertheless, either mistakes happen or some judges—very few—have an alternative view. What I understand from the noble Baroness, Lady Bertin, is that she wants the Minister to put on record that guidance will be updated and to make it absolutely clear that this should not happen again. I do not know whether she is going to move her amendment or what will happen, but I would have thought that, at the very least, the Minister should be able to do that and say that guidance will be updated.

The noble Baronesses, Lady Hamwee and Lady Uddin, both have experience of working in refuges and they know the importance of keeping these addresses secret. I hope we will hear from the Minister something that sufficiently reassures his noble friend Lady Bertin that this issue can be properly addressed once and for all.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful to my noble friend Lady Bertin for her continued engagement on the issue of the confidentiality of refuge addresses. I take this opportunity to thank refuge providers and others in the sector who took time out of their very busy diaries to meet me on this issue: we had a very useful discussion.

As with many issues with the Bill, it seems to me that we all agree on the issues of principle. Refuges are places of safety. They play a vital role in effectively responding to domestic abuse, and in supporting victims and their children. Therefore, I am in complete agreement with the principle underlying my noble friend’s amendment, that those in refuges must be protected. As such, it is right that the Government and those involved in family proceedings carefully consider both whether existing measures offer enough protection and whether there are further steps that could be taken better to protect domestic abuse victims living in refuge accommodation.

In Committee, I outlined that those engaged in family proceedings are not required to disclose their address, or that of their children, unless specifically directed to do so by the court. Where such a disclosure direction is made, addresses are disclosed to the court only, and it is for the court to determine whether information it holds should be disclosed further. Where there are known allegations of domestic abuse, the court should hold this information as confidential. I reassure the noble Baroness, Lady Hamwee, that the formulation I used in Committee was certainly intended to indicate agreement.

Turning to the service of orders at refuge addresses, I again thank those from the refuge sector with whom I discussed this issue and their experience of it. They gave some valuable evidence, and we heard some more this evening from the noble Baroness, Lady Uddin. As I indicated in Committee, existing measures, particularly Part 6 of the Family Procedure Rules, enable the court to direct bespoke service arrangements, and orders can be served at alternative addresses, such as the refuge office address. This approach should be taken wherever possible.

I noted the way that the noble Baroness, Lady Hamwee, put it: service on a refuge should be avoided. However, as I said on the last group, the real question is the welfare of the child, which is of paramount consideration in family proceedings. I remain of the view that there can be limited circumstances where the court may need to serve an order on a party at the refuge they are staying in because not doing so would pose risks to the safety of children involved in family proceedings.

One can envisage such cases, and I would not wish to limit the court’s ability to act quickly in those circumstances to safeguard a child, which might occur were we to place a blanket or inflexible restriction on addresses at which an order can be served. However, I would expect family proceedings where an order needs to be served at a residential refuge address to be very few and far between. Although the question must ultimately be a matter for the judiciary and not for the Government Front Bench, one would expect that a refuge address would be used only when there is no other viable alternative in the circumstances.

I have indicated that existing measures enable protection for victims in refuges. However, I am persuaded that there is a legitimate question of whether those measures could be strengthened to ensure that victims are better protected, that addresses are not disclosed to perpetrators, and that service of orders at refuge addresses is directed only when absolutely necessary. While I am clear that primary legislation, and therefore this amendment, is not the appropriate response here, there are other routes to explore, as I have discussed with my noble friend since Committee.

This issue has been discussed between Ministers and the President of the Family Division in recent bilateral meetings. I assure my noble friend that the judiciary is taking seriously the concerns raised. I appreciate, in this context, that the noble Lord, Lord Ponsonby of Shulbrede, wanted some reassurance from the Government; I hope I am giving it to him. The Whips may not agree, but one of the benefits of making slightly slower progress on Monday than we intended is that I can now say that this matter was discussed at the meeting of the Family Procedure Rule Committee on Monday, which was a couple of days ago. The committee agreed to work on this issue and will be giving it detailed consideration in the coming weeks and months.

The Government are committed to protecting vulnerable victims of domestic abuse from further harm by their abuser. I am confident that this issue is being properly and carefully considered by members of the senior judiciary and by the Family Procedure Rule Committee. I have full sympathy with the motivation behind this amendment. I understand why my noble friend has maintained this, and why the noble Lord, Lord Marks, had considerable sympathy with it on the confidentiality point, although I note that he did not engage with the lack of any exception to the proposition set out in subsection (3) of the proposed new clause—that is, service on a refuge address.

I have used my response to set out what the Government are doing and the steps being taken. I hope that, having provided that assurance to my noble friend, she will now be content to withdraw her amendment.

[Baroness Bertin (Con) [V]]

I thank noble Lords for their valuable contributions to this short but very important debate. I am grateful to the noble Baroness, Lady Hamwee, for her support and for putting her name to the amendment, and likewise to the noble Baroness, Lady Uddin, for her kind words. It was powerful to hear that the noble Lord, Lord Marks, with all his deep knowledge of the law on these issues, and the noble Lord Ponsonby, agreed with the amendment. I felt it was important to hear them say that, and I thank them for it.

I am of course disappointed that my noble friend the Minister does not see that there is a need to put this into the Bill. I will never accept that there is justification for revealing the location of a refuge, but I have really appreciated the time that he has given to this issue. I can tell that he cares; he obviously has a concern about this issue and is committed to trying to deal with it. I absolutely accept that his response has gone further than that in Committee, so I will bank that progress and am grateful for it. We have indeed spoken at length about other routes to explore, and I will certainly be keeping in touch with him on this. I also want to pursue greater transparency.

I was very reassured—as my noble friend said, the timing has been fortunate—that the issue has already been discussed with the President of the Family Division on the back of the amendment. I do not doubt the judiciary’s willingness to tackle this and to take these accounts seriously. We will certainly keep a close eye on this and the progress that it makes. With that in mind, I will withdraw the amendment.

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

My Lords, I must begin by applauding the frankness and honesty of the noble Lord, Lord Paddick, in his speech. It is truly humbling to hear him speak so bravely about his own former coercive partner.

In bringing this much-needed amendment to the House, the noble Baroness, Lady Morgan, has recognised the changes that have occurred in society since the widespread introduction of mobile phone technologies and social media coverage. It has changed irreversibly the way in which we communicate, and the inherent dangers of the misuse of that communication have become increasingly prevalent. I warmly support her tenacity in getting the amendment through the process. Clearly, her colleagues and former colleagues in Government have listened and acted on her arguments. It will make a difference.

As a former teacher of media studies, I had no idea, just five years ago, when I was last in the classroom, how exploitative or dangerous the medium would become. The threat to share intimate or sexual images and films is an increasingly common tool of coercive control, which can have enormous negative impacts on survivors of abuse. While the sharing of intimate and sexual images without consent is a crime, threats to share are not, leaving survivors of this form of abuse without the protection of the criminal law.

During my reading for this topic, I was powerfully moved by a key report, Shattering Lives and Myths, written by Professor Clare McGlynn and others at Durham Law School, which was launched in 2019 at the Supreme Court. It sets out the appalling consequences for victims of intimate images being posted on the internet without consent.

Threats to share these images play on fear and shame and can be particularly dangerous where there may be multiple perpetrators or where so-called honour-based abuse is a factor. The advent of new technologies enables perpetrators to make these threats even where such images do not exist. But there is no clear criminal sanction for this behaviour. Lack of support leaves victims and survivors isolated, often attempting to navigate alone an unfamiliar, complex and shifting terrain of legal provisions and online regulation. The Domestic Abuse Bill is the most appropriate vehicle to make this change. Victims and survivors would benefit almost immediately and it would help them prevent further abuse and get away from their perpetrator. This amendment will close that gap in the law.

[Lord Wolfson of Tredegar (Con)]

My Lords, my noble friend Lady Morgan is to be congratulated on bringing forward these amendments. As she has explained, the amendments seek to extend the scope of the offence at Section 33 of the Criminal Justice and Courts Act 2015, commonly known as the revenge porn offence, additionally to criminalise threats to disclose such images. Importantly, in any prosecution there is no need to prove the images exist at the time of the threat.

I reiterate that the Government consider that the revenge porn offence has worked well to date. There have been over 900 convictions for the offence since its commencement in April 2015. I am pleased to see that the creation of this offence has offered victims protection under the criminal law from the deeply distressing behaviour of sharing private intimate images.

I am very grateful for the discussions that I have had with the sponsors of the amendment in addition to my friend Lady Morgan: my noble friend Lady Hodgson of Abinger and the noble and learned Lord, Lord Judge. I have been happy to add my name on behalf of the Government to the amendment.

However, we cannot rest on our laurels. We must be alert, as the noble Lord, Lord Russell of Liverpool, said, to changes in technology, including the misuse of social media and the opportunities to abuse and distress others that such developments can bring. While we have a range of criminal offences that in many instances can deal with those who threaten to share intimate material with others, it is vital that we ensure that the criminal law remains fully equipped to deal with any new problems in this constantly developing area.

It was with this in mind that the Government asked the Law Commission to review the law in this area. That review has considered the existing offences relating to the non-consensual taking and sharing of intimate images to identify whether there are any gaps in the scope of protection already offered to victims. Noble Lords will be pleased to note that on 27 February the Law Commission published the consultation paper on the review. The consultation ends on 27 May and I encourage noble Lords to consider contributing to that public engagement, as my noble friend Lady Morgan of Cotes said.

The consultation paper puts forward a number of proposals for public discussion, including the need to address those who threaten to disclose intimate images. I look forward to the Law Commission’s full proposals in this area once its final recommendations are published later this year. I agree with the noble Lord, Lord Russell of Liverpool, that the law must keep pace with technological developments. I would not say that we are behind the curve but I think that it is fair to say that the curve itself is constantly moving. While it would be wrong of me to pre-empt the consultation and the Law Commission’s eventual findings, I think the fact that the commission has acknowledged that threats to disclose intimate images should be further considered adds strength to the calls to extend the revenge porn offence, as provided for in Amendment 48.

We have listened to the passionate calls for change from victims. They have bravely shared their distressing, and sometimes life-changing, experiences of suffering at the hands of those who would manipulate and torment them with threats to share their most personal and intimate images. That point was made during this short debate by the noble Baronesses, Lady Crawley and Lady Uddin, and in particularly moving terms by the noble Lord, Lord Paddick. Since I have just mentioned the noble Baroness, Lady Uddin, I remind her that sex and relationship education is part of the national curriculum.

We have also taken note of the views of campaigners and fellow parliamentarians. I remember the strength of feeling in this House in Committee, when my noble friend and others proposed a similar amendment to the one now before us. We have reflected on those calls and that debate and we are happy to support these amendments, which will extend the parameters of the Section 33 offence to capture the threat of disclosure.

As was noted by the noble and learned Lord, Lord Judge, and the noble and learned Baroness, Lady Butler-Sloss, Amendment 48 stays as close as possible to the provisions and drafting of the existing Section 33 offence, rather than making any broader changes to the law in this area. I suggest that that is the right approach given the Law Commission’s ongoing work. I assure the noble and learned Lord and the noble and learned Baroness that the Law Commission is specifically considering the intent issue as part of its work. I am grateful that the amendment also has the support of the noble Baronesses, Lady Jones of Moulsecoomb and Lady Wilcox of Newport.

I should say something in response to the speech made by the noble Baroness, Lady Fox of Buckley. This is nothing to do with criminalising speech and we are not dealing with just domestic abuse here. This is a broad offence that applies throughout criminal law; it does not apply just in the context of domestic abuse. While I agree that other criminal law offences, such as blackmail and harassment, can be applicable in this area—a point I made in Committee—the Government have been persuaded that it is right and appropriate to have this specific offence in this area of the law.

For those reasons, I believe that this reform will create a clear and consistent enforcement regime for both threats and actual disclosures, thereby providing greater protection to those who may have had to endure such intrusive and distressing behaviour. It has been a pleasure to be able to add my name to these amendments, and I join my noble friend in commending them to the House.

[Baroness Morgan of Cotes (Con) [V]]

My Lords, I thank all noble Lords who spoke in the debate on these amendments. As we heard the noble Lord, Lord Russell, put so eloquently, victims are suffering. I am pleased that the Government have decided that they do not have to wait until the conclusion of the Law Commission process.

Like other noble Lords, I pay particular tribute to the noble Lord, Lord Paddick, for being so brave and clear about his own personal experiences of these issues, which will be outlawed by my amendment. I thank him for sharing his experiences with the House.

Like the Minister, I took careful note of what was said by the noble and learned Lord, Lord Judge, and the noble and learned Baroness, Lady Butler-Sloss. They pointed out that this is not the end of the matter, of course, and that the use of “intent” will be looked at during the course of the Law Commission consultation.

For those who remain in any doubt, I want to share just one of the stories that I heard about. It relates to Rachel, a lady who was physically abused by her partner. After her partner had been arrested and released by the police because of the physical abuse, he threatened to disclose the many images he held on his phone to Rachel’s family and friends unless she went back to the police to change her evidence about the level of physical abuse that she had suffered. She did so and he thought that he had gotten away with it until, sadly, the abuse continued to escalate; at that point, Rachel decided that she had to get out of the family home with her children. I am pleased to say that she is now in a much more positive and better place, but the fact that victims are changing their behaviour and evidence, allowing perpetrators access to their families and returning to them, shows, in addition to the mental suffering, the very real toll that the threat of showing these images has on their lives. It just shows the very real effect that these victims suffer.

I thank the Minister for adding his name to my amendment and I thank his officials in the Bill team, who worked so hard on drafting this amendment and the consequential ones. I am grateful to them and to him for allowing me to move this amendment, and I take great pleasure in moving Amendment 48.

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

My Lords, Amendment 50 is proposed by my noble friend Lady Kennedy of The Shaws, along with Amendments 51 and 66. These amendments were debated in Committee and when my noble friend tests the opinion of the House at the end of this debate, the Labour Benches will support her. Today and during Committee my noble friend, and other noble Lords who have spoken, have highlighted how domestic abuse can lead to death. We all know of the terrible figures about women who die at the hands of a partner or former partner.

My noble friend’s amendment draws attention to the tragic situation where some women—the victims of the abuse—find themselves in the dock when they have in the end killed their abuser, often after years of horrific abuse and in situations where they feared they were going to be killed. The Sally Challen case is an example of where coercive control had not been fully understood by the courts; further, pleading self-defence has not been working for women. My noble friend, who has many years of experience in the criminal justice system, has told the House of truly tragic situations where women have not been treated fairly, or where the horror of the situation that they and their children found themselves in has not been properly appreciated.

These amendments seek to correct this imbalance and would, in my opinion, put the law in the right place by protecting those victims who have had to defend themselves in situations where they have feared for their life. The law should provide them with the ability to mount a defence, along with an understanding by the court of the horrors of domestic abuse and the need, when your life is in danger from an abusive partner or ex-partner, to take actions which are not grossly disproportionate to defend oneself.

As my noble friend said, a situation often plays out where a woman is taken along a route where she has to plead guilty to manslaughter and is convicted. On release from prison, such women have problems for the rest of their lives, for example with employment; they may also find that they have lost their home, or their children may be taken into care.

My noble friend also carefully explained the intent behind Amendment 51; the noble Lord, Lord Randall of Uxbridge, drew attention to his support for it. It mirrors the coercive control provisions of the Modern Slavery Act.

The noble Lord, Lord Paddick, asked a powerful question: why is it that victims of domestic abuse are meant to retreat while someone under attack from intruders in their home has greater protection? That cannot be right.

This has been a very good debate and I look forward to the Minister’s response. As I said, we on these Benches will certainly support the noble Baroness when she divides the House.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am extremely grateful to the noble Baroness, Lady Kennedy of The Shaws, for providing a full and detailed explanation of the reasons she believes that these amendments should be included in this Bill. In addition to the noble Lords who have spoken today, I am aware of the support that these proposals received last Thursday evening at the parliamentary event hosted by the noble Baroness and Jess Phillips MP on this subject. So that noble Lords do not think that only Kennedys can support other Kennedys, I join the noble Lord, Lord Kennedy of Southwark, in acknowledging and paying tribute to the noble Baroness’s work in, and experience of, this area.

The noble Baroness has put two amendments before the House; they are conceptually distinct, so I will address them in turn. Amendment 50 deals with the defence of the reasonable use of force by victims of domestic abuse who, in self-defence, react to violence from an abusive partner. Amendment 51 would create a new statutory defence for victims of domestic abuse who commit a criminal offence. The third amendment, Amendment 66, is intimately linked to and logically consequent on Amendment 51.

I turn first to the reasonable use of force and Amendment 50. Although the Government are wholly sympathetic to the plight of victims of domestic abuse, we are unpersuaded that there is a gap in the law here that needs to be filled. Nor do we feel that the circumstances of a victim of domestic abuse, who has often experienced that abuse over a prolonged period, are necessarily comparable to that of a householder who suddenly finds an intruder in their home and acts instinctively.

Let me expand on that point. Section 76 of the Criminal Justice and Immigration Act 2008 covers a specific circumstance. Its focus is on those occasions where an intruder, who is unlikely to be known to the householder, puts the householder in a position where they react instinctively as a result of intense stress. By comparison, in domestic abuse cases, the response may not be a sudden instinctual one but may follow years of physical and/or emotional abuse.

Furthermore—and this is an important point—the current law on self-defence and loss of control allows that any previous and extended history of domestic abuse be taken into account. I respectfully disagree with the point made by the noble Baroness, Lady Jones of Moulsecoomb, that the law on self-defence is, to use her word, outdated. It is not. As a result, it does not seem necessary to extend Section 76 of the 2008 Act to a wider set of circumstances as proposed by this amendment, given the defences that already exist in law.

I note too that no mention has been given in this new clause to a defendant’s option to retreat from the abuse, and I make that point with due care. I acknowledge, and am well aware, that an abused woman or man may not have that option. However, although Section 76 of the 2008 Act makes clear that there is no duty to retreat, the option to retreat remains a factor, and, where that is established on the facts of the particular case, it is a matter that will always be taken into account.

Therefore, although I warmly reciprocate the kind words that the noble Lord, Lord Paddick, said about me, and while I respect and acknowledge his personal history and experience, about which he has spoken extremely movingly on a number of occasions, I know that he will not like what I am going to say. I stand by the points that I have just made about the comparison or lack thereof between the householder situation and the situation of a victim of domestic abuse. I think at one point he came close to an implied charge of misogyny. I respectfully say that that does not easily sit with my approach to many amendments to the Bill or indeed the way in which I have dealt with the Bill itself. The issue between us is one of principle.

I am aware too that the noble Baroness who proposed the amendments has stated that there are difficulties with establishing the common-law defence of self-defence in cases of reactive violence by a survivor of domestic abuse against their abusive partner or former partner. As I stated in Committee, the ethos of the Bill is to improve and provide better support for victims of domestic abuse and to recognise and indeed highlight the wide-ranging impacts and implications of such behaviour. In raising the profile of domestic abuse, the Government hope to strengthen not only statutory agency support for victims and survivors but to improve the effectiveness of the justice system in better protecting those who suffer such abuse while bringing perpetrators to justice.

To that extent, I share the aims of the right reverend Prelate the Bishop of Gloucester. I assure her that this is not a question of finance; it is a question of the proper approach that the law should take in this area. That is because it is important for the Government to ensure that there is fair and equal access to justice for all. The law has to balance both the recognition of the abuse that has been suffered and the impact that it has had on a victim against the need to ensure that people, wherever possible, do not revert to criminal behaviour. I was pleased to hear that the noble Baroness, Lady Hamwee, agreed with me, at least on the latter proposition. The Government believe that that balance is currently reflected in the law—a law that continues to evolve but nevertheless strikes the right balance between those factors.

In making that last point, I referred in Committee to the fact that courts can often be quicker, more nuanced and more flexible in developing the common law than can Parliament in introducing a statutory provision that can be too rigid and narrowly drawn and may become more problematic than useful. I expressed myself as a fan of the common law, and I confirm again this evening that my enthusiasm for it is undimmed. Of course I agree with the noble Baroness, Lady Hamwee, that sometimes Parliament can lead the way—but not here.

Before I conclude my remarks on this amendment, I shall reply to one other point made by the noble Baroness, Lady Jones. She said that the Government have moved on several parts of the Bill, so why not this one? The reason is that, for the reasons I have set out, there is a principled argument that we make and which we stand by. I suggest that that argument is rooted properly in the way that the law is now applied and in the distinction between the domestic abuse case and the householder case. Towards the end of her remarks, the noble Baroness asked me a couple of quickfire questions. I am not sure that I have picked them all up, so if, on reading the Official Report, I find that they are relevant to this amendment, I will respond to them.

Although the Government are sympathetic to the aim behind Amendment 50, we remain entirely unpersuaded that it is needed, given the current defences that exist in law and the increased help, support and advice that will be available to victims of domestic abuse throughout the rest of the Bill.

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Moved by

[Lord Wolfson of Tredegar]

53: Schedule 2, page 65, line 37, leave out from beginning to end of line 10 on page 66
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 66, line 21.

[Lord Wolfson of Tredegar (Con)]

My Lords, these amendments fulfil an undertaking I gave in Committee in response to amendments tabled by my noble friend Lady Bertin that sought to ensure that UK citizens who commit marital rape in countries where such behaviour is not criminal may none the less be prosecuted in the UK.

I said then that we would consider this matter ahead of Report and, bearing in mind that the extraterritorial jurisdiction provisions are UK-wide, that we would also consult the devolved Administrations to ensure a consistent approach across the UK. We have done both —we have considered and we have consulted. I am pleased to say that, with the agreement of Ministers in Scotland and Northern Ireland, government Amendments 53 to 55, 58 to 61 and 63 to 65 achieve what my noble friend intended, and will apply to relevant legislation throughout the UK. I shall remind the House briefly, given the hour, of the provisions.

Schedule 2 to the Bill contains amendments to various enactments to provide for extraterritorial jurisdiction over certain offences under the law of England and Wales, Scotland and Northern Ireland. This will ensure that, as required by the Istanbul convention, the UK will be able to prosecute these offences when they are committed outside the UK by one of our nationals or habitual residents. The scheme is this: part 1 of the schedule covers England and Wales, part 2 covers Scotland, and part 3 covers Northern Ireland.

In keeping with the normal principles of extraterritorial jurisdiction and the terms of the convention, there is a requirement that a prosecution for one of the relevant sexual offences—these include rape where the victim of the offence is aged 18 or over—may be brought in the UK only when the offending behaviour is also an offence in the country where it happens. This is known as dual criminality.

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

My Lords, this group of amendments addresses marital rape, whereby rape could be committed by a UK citizen in a country that does not consider it a crime and, presently, no prosecution could be brought. The noble Baroness, Lady Bertin, brought the matter to the attention of the House in Committee and has been successful in persuading the Government of the merits of her case and the importance of closing this loophole.

I offer her my sincere congratulations on her success. Her actions will protect women and girls from the horrific crime of rape and ensure that no rapist or perpetrator of these vile crimes can evade justice through making use of this loophole in the law and hide behind the fact that marital rape is not a crime in a small number of countries. This is a good example of the House of Lords doing its job well. An important issue was raised, well argued and supported across the House; the Government considered it carefully and responded positively, bringing forward their own amendments to address the issue.

[Lord Wolfson of Tredegar (Con)]

My Lords, I hope the House will forgive me again if my reply is very brief, not because the issue is not important but because there is obvious agreement across the House. I again thank my noble friend Lady Bertin for bringing this matter to the Government’s attention and for the discussions we have had. I thank the noble Lord, Lord Paddick, for his kind words on this matter this evening, which I appreciate. I also thank the noble Lord, Lord Kennedy of Southwark; I am very pleased to have his and his Benches’ support on this matter. I will not say any more given the time, but I commend this amendment to the House.

Amendment 53 agreed.

Moved by

[Lord Wolfson of Tredegar]

54: Schedule 2, page 66, leave out lines 12 and 13
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 66, line 21.

Domestic Abuse Bill

Lord Wolfson of Tredegar Excerpts

Report stage
Monday 15th March 2021 Lords Chamber

Moved by

[Lord Wolfson of Tredegar]

66C: After Clause 72, insert the following new Clause—
“Medical evidence of domestic abuseProhibition on charging for the provision of medical evidence of domestic abuse
(1) No person may charge a fee or any other remuneration for the preparation or provision of relevant evidence relating to an assessment of an individual carried out by a relevant health professional in England or Wales under a qualifying medical services contract.(2) No person may charge a fee or any other remuneration for the preparation or provision of relevant evidence relating to an individual by a relevant health professional in England or Wales if the services provided by the relevant health professional are wholly or mainly services provided under a qualifying medical services contract.(3) In this section “relevant evidence”, in relation to an individual, means—(a) evidence that the individual is, or is at risk of being, a victim of domestic abuse which is intended to support an application by the individual for civil legal services, or(b) any other evidence that the individual is, or is at risk of being, a victim of domestic abuse which is of a description specified in regulations made by the Secretary of State.(4) In this section “relevant health professional” means—(a) a medical practitioner licensed to practise by the General Medical Council; (b) a health professional registered to practise in the United Kingdom by the Nursing and Midwifery Council;(c) a paramedic registered to practise in the United Kingdom by the Health and Care Professions Council.(5) In this section “qualifying medical services contract” means—(a) in relation to England—(i) a general medical services contract made under section 84(2) of the National Health Service Act 2006;(ii) any contractual arrangements made under section 83(2) of that Act;(iii) an agreement made under section 92 of that Act;(b) in relation to Wales—(i) a general medical services contract made under section 42(2) of the National Health Service (Wales) Act 2006;(ii) any contractual arrangements made under section 41(2)(b) of that Act;(iii) an agreement made under section 50 of that Act.(6) The appropriate national authority may by regulations amend the definition of—(a) “relevant health professional”;(b) “qualifying medical services contract”.(7) In this section—“appropriate national authority” means—(a) in relation to England, the Secretary of State;(b) in relation to Wales, the Welsh Ministers;“assessment” includes a consultation, whether in person or otherwise;“civil legal services” has the meaning given by section 8 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.(8) Subsections (1) and (2) do not apply in relation to anything done by a relevant health professional before the coming into force of this section.”Member’s explanatory statement
This amendment would prevent certain health care professionals who either assess a patient under an NHS contract, or provide services wholly or mainly under an NHS contract, from charging victims of domestic abuse for the provision of evidence of their injuries in order to support a claim for civil legal aid.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, when we debated the amendment tabled in Committee by the noble Lord, Lord Kennedy of Southwark, which intended to prohibit GPs from charging domestic abuse victims for legal aid evidence letters, I made clear my intention to try to reach a satisfactory conclusion on this matter. I was also clear that the Government wholeheartedly agree that vulnerable patients should not be charged for evidence to support them in accessing legal aid. That remains the Government’s position.

In Committee, I gave an undertaking to give this matter detailed consideration before Report, while, I hope helpfully, pointing out some technical defects with the amendment tabled but ultimately withdrawn by the noble Lord. The current position is that GPs can provide services in addition to NHS contracted services. These are classified as private services for which GPs have discretion to charge the patient for their completion in lieu of their professional time. The provision of letters of evidence to enable access to legal aid is one such private service.

A GP is one of many professionals to whom a vulnerable person can turn for a letter to provide evidence of domestic abuse for access to legal aid. It is up to the discretion of an individual GP practice as to how much any charge for private services should be and, indeed, whether a charge should be levied at all.

As part of the 2020-21 contract agreement, the British Medical Association recommended to all GPs that a charge should not be levied for letters providing this evidence. That was a welcome and important step forward, and a recognition by the BMA that vulnerable patients with limited means should not be expected to pay for such letters. We recognise and commend the vast majority of GPs who are following this guidance, but we recognise that this is a non-binding recommendation from the BMA, so we now move with this amendment to remedy this gap, having considered the matter carefully since Committee.

Amendment 66C achieves our aim. It will provide that no person may charge for the preparation or provision of evidence demonstrating that a person is, or is at risk of being, a victim of domestic abuse for the purpose of obtaining legal aid. The “relevant health professionals” listed in subsection (4) of the proposed new clause are those providing services pursuant to any of the general medical services, personal medical services, or alternative provider medical services contracts. A “relevant health professional” who has assessed the patient in the course of providing services under any of those three contracts will be prevented from charging for such a letter.

Importantly, the same amendment also prohibits charging for this letter through any vehicle, the health professional themselves or the practice, be it a company or a partnership. Nobody who seeks evidence from such health professionals demonstrating that they are a victim of domestic abuse, or are at risk thereof, for the purposes of obtaining access to legal aid, may be charged under the government amendment. With the agreement of the Welsh Government, this amendment will extend to England and Wales, subject to a legislative consent Motion which is being debated in the Senedd tomorrow.

In these respects, Amendment 66C will go further than Amendment 71 tabled by the noble Lord, Lord Kennedy. As I observed on a previous occasion, that amendment relies solely on the definition of a general medical services contract in Section 84 of the National Health Service Act 2006, therefore covering only one of those three types of GP contracts, and would not apply to almost 30% of practices. Obviously that was not his intention, but it is an important drafting point.

We have also taken the opportunity to future-proof this prohibition through the two regulation-making powers in proposed new subsections (3)(b) and (6). Proposed new subsection (3)(b) enables the Secretary of State to extend the scope of the prohibition beyond legal aid, should a health professional’s evidence of domestic abuse ever be relevant in other contexts, while proposed new subsection (6) enables the Secretary of State, or the relevant Welsh Ministers, to alter the lists of professionals and contracts caught by the prohibition. Should a change in the delivery of health service necessitate a change in the scope, we can do that with the appropriate regulations.

The remaining government amendments are largely consequential on Amendment 66C. Amendment 89A amends Clause 73 to provide that the Secretary of State can issue guidance about the prohibition. Amendment 103A provides for commencement on the first common commencement date following Royal Assent. Government amendments 95A to 95C, 98A to 98C and 99A to 99C make consequential amendments to Clauses 74, 75 and 76 respectively.

I remember well that in Committee the noble Lord, Lord Kennedy of Southwark, read out an impressive list of occasions when he had raised this matter. He went so far as to list the names of my illustrious predecessors with whom he had engaged, and I know that they worked hard to resolve this matter. On that occasion, I said that I hoped to escape the horrid fate of being added to his list, and I hope that I have achieved that very modest ambition. However, delighted as I am to be the Minister standing today at the Dispatch Box, moving these amendments to bring this very long-running problem to a close—I hope—I am conscious that many other Ministers, present and previous, have worked on this matter, and without their efforts we would not have got to where we are today.

We have listened carefully to the points made by the noble Lord, Lord Kennedy, and other noble Lords, on this important matter. I am pleased that this Government have been able to table these amendments. I look forward to the contributions of other noble Lords, and I beg to move.

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

My Lords, I am delighted with the amendments tabled by the Minister. I thank him very much; the amendments have my full support. I will at the appropriate time not move my amendments on the Marshalled List.

This campaign has been a long one. I will spend a few minutes setting out how it started, thanking those people who have got us to this day, and paying tribute to those whom I cannot mention. The campaign was started by a domestic abuse survivor in the Wythenshawe area of Manchester, on discovering that their local GP was charging victims of domestic abuse for letters that they needed when applying for legal aid. They thought that this was wrong and decided to change the law. I thank Katy—I am not allowed to give her surname—who first raised the issue with my friend Tom Watson, when he visited Safespots Wythenshawe. He raised the matter in Parliament.

I thank Mike Kane, the local MP who supported the campaign for many years; Laura Hitchen, the local solicitor in Manchester who highlighted how widespread the problem was; Councillor Sarah Judge, who works at Safespots; all the Safespots women who are victims of abuse and who stood up and decided to change the law; Manchester City Council and the other local authorities that gave their support to the campaign; all the police and crime commissioners who gave their support, including my noble friend Lord Bach; Sue Macmillan, my good friend for many years, who got the Mumsnet campaigners on the case; Charles Hymas, the home affairs editor of the Daily Telegraph, for shining a light on the issue at the right time; my good friends Stephanie Peacock MP, for kindly raising the issue in the other place, and Stella Creasy MP, for her valuable advice and support; the noble Baroness, Lady Bertin, who supported me in Committee, along with the noble Baronesses, Lady Bull and Lady Burt of Solihull, the right reverend Prelate the Bishop of London and the noble Baroness, Lady Newlove, who has always been supportive and who encouraged me to carry on; and noble Lords of all parties and on the Cross Benches who have supported me in my numerous questions to a variety of Ministers, whom I thank for their responses to all the amendments to government Bills that I have moved over the years. I have involved officials from at least four government departments.

I also thank Victoria Atkins MP, a Home Office Minister who listened and was a great help in getting out of this position. I am also grateful to our Minister—the noble Lord, Lord Wolfson of Tredegar—who on 8 February, when I raised the issue in the House, listened, bringing these amendments back to the House today. My final thanks go to the noble Baroness, Lady Williams of Trafford. I have tremendous respect for her, and she is also my friend. She listened and understood the points being made and played a key role in us getting to where we are today. I am tremendously grateful to her.

I have always said that this is a good Bill, and it is undoubtedly a better Bill because of the work that we have done in this House. With these amendments being agreed today, we are ending the postcode lottery in which a victim of domestic abuse could be charged by their GP for a letter that they need to gain access to legal aid. With these amendments, that position ends. This is wonderful. I am delighted to have played a small part in achieving this.

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[Baroness Burt of Solihull (LD)]

My Lords, I add my congratulations to the noble Lord, Lord Kennedy, on resolving the injustice of NHS providers charging for evidence of domestic abuse. It is an object lesson in persistence. I hope that the noble and learned Baroness, Lady Butler-Sloss, who I was hoping to follow, will meet the same eventual success with her plans on forced marriage. I am also grateful to the Minister for his amendments to ensure that this is properly and legally installed in law.

In my view, it is a scandal that it ever had to come to this. What hard-hearted group of medical practitioners ever made the decision to charge money for evidence that a woman has been subjected to violence as a qualifying condition for legal aid? I suppose that is what happens when you try to marketise the NHS.

The Minister spoke about the role played by the BMA, but according to the BMA this amendment should never have been necessary. It says:

“We believe that legal aid agencies should trust the word of victims without needing to consult with a medical professional, who themselves”


will rely on what the victim tells them and

“may not be best placed to confirm whether domestic abuse has taken place.”

It recommends that the MoJ should remove altogether the unfair requirement for medical forms in the domestic abuse legal process. It seems to me that this requirement is just placing one more obstacle in front of the victim, perhaps to test to destruction her determination to get justice. Will the Minister say why legal aid agencies are requiring these medical certificates in the first place? Should we not be legislating to remove this requirement, full stop?

[Lord Wolfson of Tredegar (Con)]

My Lords, I begin by taking up the comment of the noble and learned Lord, Lord Morris of Aberavon, who said that this is a loophole that needed to be filled. I respectfully agree, and that is why the Government have tabled the amendments that have the effect that I set out earlier.

It was gratifying to hear the congratulations to the noble Lord, Lord Kennedy of Southwark, from my noble friend Lord Naseby, the right reverend Prelate the Bishop of Carlisle and the noble Baroness, Lady Burt of Solihull. I shall not rise to the challenge in her phrase about marketising the NHS, but I should respond briefly to her point about why any evidence is needed at all. The short answer is that there is limited legal aid spend. We must target it at those who need it most, and we believe that the evidence requirements ensure that the legal aid scheme strikes the best balance between ensuring that victims of domestic abuse can evidence their abuse and access legal aid and ensuring that the risk of fraudulent or unmeritorious claims is as low as possible. To that end, we have significantly extended the accepted forms of evidence. We have removed all time limits and the government amendments seek a clear resolution of the issue of victims being charged to obtain that evidence.

Other than that, it is fair to say that the debate we have just had was something of a tribute band to the noble Lord, Lord Kennedy of Southwark, but on this occasion, tribute is entirely well merited. He has been indefatigable and resolute, and he was very generous, although I associate myself with it, in mentioning my noble friend Lady Williams of Trafford, who has also worked very hard to resolve this matter.

I shall not take up any more of the time of your Lordships’ House. For the reasons I have set out, the Government believe that these amendments will sort out this long-running problem, and I therefore commend them to the House.

Amendment 66C agreed.

Domestic Abuse Bill

Lord Wolfson of Tredegar Excerpts

3rd reading
Wednesday 24th March 2021 Lords Chamber

[Baroness Royall of Blaisdon (Lab) [V]]

My Lords, I am grateful for your Lordships’ patience in enabling me to table and move this short amendment, whose purpose is to correct a minor defect in my original drafting, for which I apologise. I am grateful to the clerks for their advice.

I understand from the Sunday Telegraph that the Government are going to create a super-database, which would include domestic abusers and stalkers, as well as sex offenders. If this were the case, I would naturally be delighted. This would enable police, prison and probation services to track offenders guilty of violence against women and would be a huge step forward in our efforts to tackle gender-based violence and misogyny.

I pay tribute to all those who have campaigned over many years to make this a reality, especially my formidable friend Laura Richards, as well as survivors and the families and friends of victims. I emphasise that we have never been asking for a separate register for stalkers and perpetrators of domestic violence but rather that they should be included on ViSOR—the violent offender and sex offender register. I am sure that we will receive more details when the amendment agreed last week is considered by the Commons after Easter, but I hope that the intention, if not the details, will be on the face of the Bill. Likewise, I have outlined details of the perpetrator strategy which must be an integral part of the policy relating to the database. There must be a statutory requirement for police, prison and probation services to risk assess and manage perpetrators, in partnership with domestic abuse and stalking services. Unless this is mandatory, the key professionals will not always come to the table, and their participation is vital.

I thank the noble Lord the Minister for his work on these issues and, specifically, the noble Baroness, Lady Williams, for all that she has done and for her letter received this morning. Sadly, the letter was not as explicit as some of the media briefings, but I am grateful to her for recognising that there is a consensus that more needs to be done. I suggest that there is a consensus on the actions needed. As the noble Baroness has said in the past, we have already agreed on the ends; I think and hope that, as a consequence of the debate and vote on my amendment on Report, we are now close to agreeing on the means that will bring about a cultural change, focusing on the perpetrators and saving lives. I look forward to hearing the results of the discussions between her officials and experts in developing the database and the perpetrator strategy. I beg to move.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, I first apologise on behalf of my noble friend Lady Williams of Trafford, who is unable to be present today. The Home Secretary has asked my noble friend to deputise for her at today’s meeting of the G6, which the UK is hosting. The G6 meeting of Interior Ministers is one of the most important long-term, multilateral forums in which to discuss priority home affairs issues with some of our closest security partners. I hope that noble Lords will therefore understand the importance of my noble friend attending that meeting, but she is, none the less, disappointed that this means that she cannot be here today.

I turn briefly to the amendment which, as the noble Baroness, Lady Royall of Blaisdon, has explained, is purely a drafting amendment and, as such, the Government will not oppose it. My noble friend made clear on Report what the Government’s substantive view now is of Clause 85 of the Bill. I hope that the House will forgive me if I do not repeat that position today. It is now for the other place to consider this and other amendments agreed by your Lordships’ House.

[Baroness Royall of Blaisdon (Lab) [V]]

My Lords, I am grateful to the noble Lord the Minister for expressing the Government’s position on this amendment. I am sure we are all very proud of the fact that his noble friend Lady Williams, the Minister, is representing the Government at the meeting of the G6.

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Moved by

[Lord Wolfson of Tredegar]

That the Bill do now pass.

[Lord Wolfson of Tredegar (Con)]

My Lords, I hope noble Lords will permit me to say a few words to mark the completion of the passage of the Bill through this House. I say, with some hesitation, that this is one of those Bills which has shown your Lordships’ House as its best. My hesitation does not arise from the proceedings on the Bill. Those were marked by speeches of high calibre and engaged debate and, undoubtedly, led to an improved Bill. My hesitation is due to the fact that this was the first Bill on which I worked in my time in this House. When I began work on it, I had nothing to compare it to, but I was fortunate to have the support and wise counsel of my noble friends Lady Williams of Trafford and Lord Parkinson of Whitley Bay. They were right about everything else they told me so, as they have assured me that this Bill shows the House at its best, I am relying on them to be right about that as well.

Having mentioned my noble friends, I must pay tribute to them and give my thanks to those who have supported them and me in this endeavour. We have had the benefit of expert support from officials and lawyers across no fewer than eight government departments: the Home Office; my department, the MoJ; the Ministry of Housing, Communities and Local Government; the Department for Education; the Department of Health and Social Care; the Department for Work and Pensions; the Department for Business, Energy and Industrial Strategy; and the Department for Digital, Culture, Media and Sport; not to mention the devolved Administrations in Scotland, Wales and Northern Ireland, which have also had a hand in this Bill. I also thank the Bill managers, Charles, Pommy, Oliver and Georgina, and the private secretaries, Rebecca and Patrick; their work has been exceptional. If nothing else, the range of government departments and people I have just mentioned shows that tackling domestic abuse is everyone’s business. We are very grateful to all those involved across government.

In addition, we are grateful to Members from across the House. I thank those on the Front Benches opposite for the constructive way in which they have dealt with the Bill, and the very courteous and constructive way in which they have engaged with me. I thank the noble Lord, Lord Rosser, the noble Baroness, Lady Wilcox, and the noble Lord, Lord Kennedy—I am particularly pleased that this Bill is the culmination of his four-year campaign on the issue of GP fees. Last, but certainly not least, I am grateful to the noble Lord, Lord Paddick, for bravely sharing his own experiences of domestic abuse, and to his colleagues on the Liberal Democrat Front Bench, the noble Baronesses, Lady Hamwee and Lady Burt of Solihull, and the noble Lord, Lord Marks of Henley-on-Thames.

I will also take a moment to thank other Members of this House who have worked very hard. I thank my noble friend Lady Newlove, as well as the organisations which aided her, on their work on non-fatal strangulation —something that is now part of the Bill as a Government-drafted amendment. I thank my noble friend Lady Morgan for her work on threats to release intimate images. Again, this is now part of the Bill as a Government-drafted amendment. In that context, I must give my personal thanks to the noble and learned Lord, Lord Judge, who discussed with me some of the legal issues raised by that amendment.

I thank the noble Baroness, Lady Lister, and my noble friends Lady Bertin and Lady Sanderson—if I may respectfully group them together—for their campaigning on coercive and controlling behaviour, which also is now part of a Government-drafted amendment. I thank my noble friend Lord Polak, who campaigned tirelessly on community-based services. This is something we have now taken on board. We may not have agreed on all points, but I also thank the noble Baronesses, Lady Campbell and Lady Grey-Thompson, for raising the important issue of carers in the Bill, which will be explored further in another place. Finally, I thank my noble friend Lady Altmann and the other sponsors of the amendments dealing with get. It is a somewhat recondite point, but one which causes real distress and suffering.

Whether we have agreed or disagreed, as the noble Baroness, Lady Royall, mentioned a moment ago, in scrutinising this Bill, we have all been striving for the same outcome: ensuring that victims of domestic abuse and their children have better protection and support, and that perpetrators are brought to justice. As she said, the differences have invariably been about the means of achieving this, not the ends involved.

We will of course reflect carefully on the nine amendments agreed by your Lordships’ House against the advice of the Government. We will set out our position when the Bill returns from the other place in due course. We will inevitably debate this Bill at a future date, but I know that all noble Lords will join me in hoping that it will soon be on the statute book, making a real, tangible and positive difference to the 2.3 million victims of domestic abuse each year. I therefore beg to move that the Bill do now pass.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I see the time and I hope the House will not think me discourteous if I respond very briefly. I am very grateful for the kind words of the noble Lord, Lord Rosser. He was quite right to remind us that the Bill had cross-party support. He was also right to remind me to thank—I fear that I did not, but I do now—the noble Lord, Lord Ponsonby of Shulbrede, who brought his experience as a magistrate in family matters to the attention of the House, which was very helpful in number of issues, and the noble and learned Lord, Lord Falconer of Thoroton, with whom I debated some of the legal matters. I apologise to the noble Baroness, Lady Burt of Solihull, for stealing her lines. I would put it this way: she reassured me that I was, in fact, correct when I said what I did.

The House benefited, as it always does, from the considerable experience and wise counsel of the noble and learned Baroness, Lady Butler-Sloss. I am sure we are all grateful to her. As for my noble friend Lady McIntosh of Pickering, I hope she will allow me to disagree with her when she said that she played a small part. She did not; she played an important part and, with that very important correction, I very much endorse what she said.

Last but certainly not least, if I may put it in those terms, to hear the noble Baroness, Lady Jones of Moulsecoomb, praise the Government is a wonderful thing. It shows that miracles do happen. I can assure her that the Government always listen, we just cannot always say yes. I hope noble Lords will forgive me for being brief, but I do see the time and I beg to move that this Bill do now pass.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I have received a request to ask a short question of elucidation from the noble Baroness, Lady Uddin.

[Baroness Uddin (Non-Afl)]

My Lords, I thank the House for its leniency. I welcome the super register that has been proposed. I convey my thanks and respect to all noble Lords who have spoken in this debate. It has been my long-standing hope to participate in a small way in this debate, and an honour to have done so. I extend my thanks to the noble Baroness, Lady Williams, and the noble Lords, Lord Wolfson and Lord Parkinson, for their contributions and dedication to this cause. It has been much noted that the sisterhood across the House was incredibly powerful, and I wanted to state that. We have a common purpose in making real changes to the lives of survivors, so will there be a public information campaign to empower women with a message that our society has marked this day to say that we utterly reject violence against women? It is everyone’s business, as has been said, to begin the process of eliminating violence and abuse. It will send a very powerful message to all, around the world, that we intend to stand against violence and abuse in every form.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the comments of the noble Baroness. Of course, this Government oppose violence in all forms, especially violence against women. As to the publicity campaign she mentions, she will be aware that there are a number of areas where the Government already have publicity in this area. I am very happy to speak to her to understand particularly what she has in mind, and I will arrange to have that conversation in due course.

Bill passed and returned to the Commons with amendments.