Domestic Abuse Bill

Lord Wolfson of Tredegar Excerpts

Wednesday 21st April 2021 Lords Chamber

Moved by

[Lord Wolfson of Tredegar]

That this House do not insist on its Amendment 9, to which the Commons have disagreed for their Reason 9A.

9A: Because it is unnecessary to provide for the accreditation of child contact centres by local authorities.

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

My Lords, the elected House has disagreed with Amendment 9 by a substantial majority of 130. The noble Baroness, Lady Finlay, has subsequently tabled Amendment 9B. While removing the requirement for accreditation of child contact centres and services in relation to public and private family law cases, it still requires the Government to introduce a set of national standards to which organisations and individuals would be required to adhere—in effect, a form of indirect accreditation.

I am grateful to the noble Baronesses, Lady Finlay and Lady Burt of Solihull, my noble friend Lady McIntosh of Pickering and the noble Lord, Lord Ponsonby of Shulbrede, for taking the time yesterday to speak with me about the revised amendment. While the Government recognise that the provision of child contact centres and services is vital in supporting families and enabling parents to have contact with their children, this amendment remains problematic for a number of reasons.

First, there is not an issue in relation to private law cases of parties being referred to non-accredited child contact centres. That is because there are protocols in place, involving the judiciary, magistrates and Cafcass family court advisers, which require them only to refer parties in private law cases to NACCC-accredited child contact centres when referring parties in those private law proceedings for supported, supervised contact and handover contact. That protocol has been in place with the NACCC since 2000 and was revised a few years ago, in 2017. The memorandum of understanding between Cafcass and the NACCC has been in place since 2018. Cafcass has assured the Government, as well as NACCC, that it is compliant with that memorandum of understanding.

However, in light of what was said on Report, I have written to the President of the Family Division and to the CEO of Cafcass requesting that they raise awareness amongst their colleagues and officials of the judicial protocol and memorandum of understanding which has been agreed. I understand that the NACCC is updating that judicial protocol. It will be agreed with the President of the Family Division and reissued to the judiciary and magistrates.

Further to that, Jacky Tiotto, the chief executive of Cafcass, has responded to my letter to her confirming that she will write to all Cafcass operational managers and family court advisers, reminding them of the importance of the memorandum of understanding. While she is unaware of any evidence to suggest that Cafcass staff are not complying with the requirements, she emphasised that Cafcass is committed to working effectively with the NACCC to ensure that every child receives the best possible service.

That is in relation to private family law. I turn now to public law family cases where children are in the care of the local authority. Comprehensive statutory provisions are already in place determining how local authorities should discharge their duties, including in relation to meeting statutory requirements to maintain contact between a child and their family.

In that context, Section 22 of the Children Act 1989 places a general statutory duty on the local authority in relation to children looked after by it to safeguard and promote the child’s welfare. Section 34 of that Act establishes the presumption that there should be continued contact between the child and their family while the child is in the care of the local authority. It places a duty on local authorities, subject to certain provisions and to their duty to safeguard and promote the child’s welfare, to allow contact between a child in care and their parents. Details of contact are set out in a child’s care plan, which is governed by the Care Planning, Placement and Case Review (England) Regulations 2010. Those regulations set out the role of independent review officers to ensure that contact is supported. They will consider whether contact commitments in care plans have been implemented and whether the child is happy. In 2015, the Department for Education published guidance on care planning, placement and case review; further statutory guidance was published in 2018. That is the statutory architecture.

I turn now to the safeguards in place before each contact between a looked-after child and a parent is made. Whenever contact is arranged by a local authority, the social worker should undertake a full safeguarding risk assessment, meeting the requirements of the guidance for the assessment of contact produced by each local authority. A broad range of factors is looked at: the risk of physical, sexual and emotional abuse, including domestic abuse, and neglect; the risk of abduction; whether there is a history of violent or aggressive behaviour and whether the child or supervisor is at risk; and the parent’s ability to prioritise the children’s needs above their own. In outlining all that, I seek to reassure the House that there is already adequate statutory and regulatory provision in place.

I have spoken about private and public law proceedings. In addition, I should mention that parents can self-refer to contact centre services. NACCC officials themselves have suggested that very few parents actually do that, so any concerns that parents may be self-referring to non-accredited centres are not borne out by the evidence, and certainly not to any significant scale.

What is the essential argument behind the amendment? Those supporting it argue that there are large numbers of unaccredited child contact centres and services, posing significant risk to children and parents around safeguarding and the risk of domestic abuse. The NACCC provided some initial data on the number of unaccredited contact centres, but the current evidence base is insufficiently robust to support legislating on the issue. While I am grateful to the NACCC for compiling the data, I have to note that some of the “unaccredited” contact centres initially identified by it in fact turned out to be regulated by Ofsted or the Care Quality Commission. There is plainly more work to be done to understand the issue. The Government remain ready to work with the NACCC in this regard, but outside this Bill. In particular, I am ready to explore further whether there is a case for ensuring that there are appropriate arrangements in place for anyone who seeks to set themselves up as a provider of child contact services to be subject to criminal record checks.

I can therefore assure your Lordships’ House that the Government are committed to ensuring the highest levels of care and safeguarding where circumstances have necessitated involvement with the family justice system. However, given existing mechanisms within private and public family law, and the extensive regulatory environment which I have set out, without further evidence of a problem we do not believe that this amendment is warranted at this time.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, as is often the case, the noble and learned Baroness, Lady Butler-Sloss, put the point simply and persuasively: that there should be common standards for all those who provide services under child contact centres.

We have heard about the welcome exchange of views between the signatories to this amendment and the Minister. In the email we received from him, he seemed to acknowledge that the DBS regulations should be assessed, and potentially amended, to see whether they apply to individuals setting up contact centres—so, he has acknowledged that deficiency in the existing arrangements. Further to that, in the concluding paragraph of the Minister’s email he undertakes to ensure that appropriate arrangements are in place for anyone who seeks to set up as a provider, and to explore further whether that is indeed the case.

The starting point is that there are uneven levels of regulation across the network of child contact centre providers. I accept what the Minister has said regarding private law in our courts and that the existing memorandum of understanding is going to be updated and revised, but that very fact may be an acknowledgement that improvements are needed. I have to say, speaking as a family magistrate, that all the child contact centres I have ever referred children to have been accredited by the NACCC. The Minister also set out the existing public law statutory architecture, which is more complex, but as so many speakers have said in this debate, we are talking about private providers—providers who may come and go and may come from particular communities which do not trust existing services. Those are the difficult cases that we are seeking to include in this extension of regulation.

As the Minister will be aware, we are talking about some very difficult cases—cases which are difficult to put in the public domain—and a few cases, not the many cases which he claimed. The Bill is an opportunity to close this loophole. We on the Labour Benches will support the amendment in the name of the noble Baroness, Lady Finlay, if she chooses to press it to a vote.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to all noble Lords who have taken part in this debate. I am mindful of the views which have been expressed across the House. I start with a point on behalf of the Government and of myself. So far as the Government are concerned, like the noble Baroness, Lady Finlay of Llandaff, they are committed to the welfare of children—that is not a phrase with which any of us would disagree. For myself, if I may accept the point put by my noble friend Lady McIntosh of Pickering, I do have a human side. Notwithstanding that I am a lawyer and a Government Minister, something of a human side still pokes through occasionally.

There is nothing between us on the aim; what is between us is the means. I therefore remind the House of two points. First, of course anything said by the noble and learned Baroness, Lady Butler-Sloss, in this area has to be heard with care and listened to diligently, but it is the case already that the vast majority of people in child contact centres will have to have certain checks through NACCC accreditation and because of the local authority obligations. That is the first general point.

The second general point in response to one of the points made by the noble Lord, Lord Ponsonby of Shulbrede, is that the fact that the memorandum of understanding is being updated and revised is no indication whatever that there is a problem with it. For example, one of the revisions which is being made is to substitute the name of the previous President of the Family Division, Sir James Munby, with the name of the new president, Sir Andrew McFarlane. Updating and revision of an MoU does not indicate that there is a problem. A lot of very good documents are continually updated and revised.

One is therefore back to the essential point, which is: what is the evidence which underpins the proposed amendment? It is all very well to talk of a loophole, but the real question is whether there is an underlying problem. It is the evidence base with which we have concerns. I say with genuine respect to the noble Baroness, Lady Finlay of Llandaff, that anecdotal evidence is not a sufficient basis in this area on which we should be legislating. Of course, staff must be trained and we must look to see whether there are legislative gaps, but we have to proceed on proper evidence.

So far as my email is concerned, I do not pull back from that at all; I stand by every single word of it. In particular, with regard to DBS checks, I am happy to repeat from the Dispatch Box precisely what I said in the email: “I am ready to explore whether there is a case for ensuring that there are appropriate arrangements in place for anyone who seeks to set themselves up as a provider of child contact centres to be subject to criminal record checks. The issue is that the regulations with regard to DBS are about eligibility for DBS checks, not whether they are mandatory.”

I suspect that where we end up is on the question of whether there is a proper basis to legislate in this space, given my assurances that we would be looking at the DBS point and that there is no cogent evidence that the current system is not working. The protocol is in place and has been endorsed at the highest level by the judiciary and Cafcass. There are statutory and regulatory requirements in the public law cases. Indeed, the only first-hand evidence which we have heard this afternoon from the noble Lord, Lord Ponsonby of Shulbrede, has been that the matter is working well. As he confirmed, he sends his cases to an accredited centre only.

That is the position. Even at this late stage, I respectfully invite the noble Baroness, Lady Finlay of Llandaff, to withdraw the amendment.

[Baroness Finlay of Llandaff (CB)]

My Lords, I am most grateful to all who have spoken, and particularly to my noble and learned friend Lady Butler-Sloss for her support, which I view as weighty. I stress to the House that a call for common standards seems to have come through in all the speeches in support of my amendment. I am slightly concerned that the Government decry an evidence base because I have seen no evidence that they have undertaken a systematic review of the standards of all the child contact centres and services around, nor have they looked at them systematically. When they asked for evidence, we brought it, and did what we could in the time available, and now it is being dismissed as anecdotal. We have gone round in circles and I therefore wish to test the opinion of the House.

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Motion C

[Lord Wolfson of Tredegar]

Moved by

That this House do not insist on its Amendment 33, to which the Commons have disagreed for their Reason 33A.

33A: Because it is unnecessary and is contrary to the principle of judicial independence.

[Lord Wolfson of Tredegar (Con)]

My Lords, the elected House has disagreed with Amendment 33 and by a substantial majority, in this case of 143. In inviting this House not to insist on the amendment, I first take the opportunity to underline the Government’s recognition that comprehensive, high-quality and up-to-date training on domestic abuse is of critical importance for judges and magistrates involved in family proceedings.

Perhaps I may also take a moment again to record my thanks to the noble Baroness, Lady Helic, and other noble Lords who have taken time to discuss this matter with me, including most recently on a call to which the noble Lord, Lord Marks of Henley-on-Thames, was also party. While the Government recognise that victims and survivors of domestic abuse can face difficulty in the family justice system, especially during proceedings and in particular when giving evidence in them, there are serious and fundamental concerns with regard to the substance of Amendment 33.

The first point is a constitutional one, which I have made on previous occasions but reiterate today. Training for the judiciary is the responsibility not of the Government but of the Lord Chief Justice—not the Lord Chancellor. The elected House disagreed with this amendment on the basis—correctly, I would submit—that it fundamentally undermines the important constitutional principle of judicial independence. We have a number of constitutional principles in this country; some have been debated in your Lordships’ House in the last several months. But perhaps I may venture that judicial independence is among the most important principles, if not the most important.

The statutory responsibility for ensuring that the judiciary in England and Wales is properly trained rightly sits with the Lord Chief Justice and is exercised by way of the Judicial College. My right honourable friend the Lord Chancellor does not have a role beyond providing the resources required by the judiciary, through which the Judicial College is funded. As such, the Lord Chancellor simply cannot direct the judiciary on training with either a strategy or timetable, as would be required by this amendment.

Amendment 33B would therefore replace the reference to the Secretary of State in the original amendment with one to the Lord Chancellor. That correctly reflects the constitutional role of the Lord Chancellor, who, as opposed to the Secretary of State, has duties in respect of the judiciary. The amendment also adds the Lord Chief Justice to the list of those who must be consulted before the strategy and timetable are published. However, it does not alter the fundamental way in which these amendments impinge, I suggest, on the independence of the judiciary. That is the first point and it is an important constitutional proposition.

The second is a practical point. It is already mandatory for any judge or magistrate to have training in domestic abuse before they hear cases in the family court. More than 50% of the content of private law induction training for judges is now focused on domestic abuse, such is the judiciary’s recognition of its importance. There is not only induction training but ongoing training as well. Continuation training annually is compulsory for judges and any judge authorised to hear public family law cases must also attend the appropriate seminar for that authorisation at least once every three years.

Domestic abuse is covered in all family law cases run by the Judicial College, and training reflects the wide nature of domestic abuse. Therefore, it covers all areas recognised by the Government as abuse, ranging from serious sexual and other assaults, emotional abuse to coercive or controlling behaviour, including financial coercion and control. Let me explain what the training includes. This is not just one judge talking to other judges. The training includes practical exercises and role play and is delivered by a wide range of experts, including academics and experts in psychiatry, psychology and other professions and agencies working in this area, as well as victims. The Judicial College also advocates the use of specialists to co-train and provide an annexe of specialist organisations. In the e-learning, SafeLives, Cafcass and Cafcass Cymru and IDVAs have all contributed to the films provided to the Judicial College.

Thirdly—and importantly going forward—the Judicial College is committed to reviewing and improving training on domestic abuse for both the judiciary and the magistracy. The senior judiciary, including both the President of the Family Division and Lady Justice King, the chair of the Judicial College, both acting on behalf of the Lord Chief Justice, are working to further develop domestic abuse training.

As part of my departmental responsibilities, I meet regularly—albeit at the moment virtually—with the President of the Family Division. My last such meeting was, in fact, yesterday and we discussed judicial training on domestic abuse in the context of this amendment. He has given me his categoric assurance about the importance he places on effective training in the area of domestic abuse. He has said that the training will continue and, importantly, that it will be updated in light of the Bill, the harm panel, and the recent Court of Appeal judgments in four conjoined domestic abuse cases. Lady Justice King has given me the same assurances. Specifically, I have been assured that the Judicial College already has in hand the training that will be required as a result of this Bill, which is a landmark piece of legislation, as we all agree.

While I respectfully commend my noble friend Lady Helic for raising this important issue, for the reasons I have set out, specifically the constitutional and practical reasons, I respectfully ask her and all noble Lords not to insist on Amendment 33 or to press new Amendment 33B in its stead. I beg to move.

Motion C1 (as an amendment to Motion C)

Moved by

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It is important that people fully understand the effect of domestic abuse on victims and on witnesses. That is why this amendment was brought forward. I thank the noble Lord for his reassurances. From the discussions he has already had on these issues, how does he think he will ensure that the work the Judicial College will do will bring about that change, so that all judges and magistrates fully understand this horrific crime, in all its many facets, and take that into account properly when doing their work in our courts? With that, I thank the noble Lord for his response and look forward to hearing what he says.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am again grateful to all noble Lords who have taken part in this debate. I first pick up the contribution from the noble and learned Baroness, Lady Butler-Sloss. On the previous Motion I respectfully commended her experience. Even though I lost that vote, I do so again, because she has given the House a lot of detail as to the training that is actually provided. The House now ought to be reassured that, right from the top of the judiciary through to the Judicial College, there is a commitment to the importance of training, to ongoing training, to training from a variety of providers and not just judges, and, as the noble Lord, Lord Marks of Henley-on-Thames, picked up, to specific training on the Domestic Abuse Bill—or, as I hope it will soon be, the Domestic Abuse Act. I hope that that level of detail has been helpful to the House and, in particular, helpful and reassuring to my noble friend Lady Helic.

I also tried—I hope I succeeded, to an extent—to reassure my noble friend as to the extent and content of the judicial training. I repeat the constitutional point that we cannot force the judiciary on the nature, content or extent of that training. But there is, as I have said, commitment from the very top to make sure that the Judicial College fulfils its role and that all judges and magistrates are properly trained on domestic abuse generally, and specifically on this Act. The House can be assured that in my ongoing discussions and meetings with senior judiciary, including the President of the Family Division, I will keep the question of training on domestic abuse on the agenda. Even if I did not, the President of the Family Division would be totally focused on it anyway, but none the less I will ensure that it is part of our discussions.

I also respectfully agree with the point make by the noble Lord, Lord Marks of Henley-on-Thames, that we must remember the particular difficulties—and the judiciary is increasingly aware of this—that victims of domestic abuse have in court proceedings. The House will be aware that we have made a number of other provisions in this Bill to do with witnesses, parties and cross-examination that will improve the lot of victims of domestic abuse in our courts. That is something I personally am very conscious of and focused on. Courts can be intimidating places at the best of times, and if you are a victim you can double, quadruple or quintuple the amount of intimidation you feel merely from the process. We have made some good improvements there.

The noble Lord, Lord Paddick, correctly says that the proof of the pudding is in the eating. The danger with metaphors is stretching them too far, but in this context we are all committed to making the best possible pudding. The way you do that, if I can stretch the metaphor, is to have the best set of ingredients. That is why the Judicial College, in its training, has already engaged, and will continue to engage, training from a wide variety of providers—though the decision as to who those providers are has to be ultimately that of the Judicial College.

I hope I have dealt with all the points raised in this debate. I will take literally 30 seconds to respond to the noble Lord, Lord Kennedy of Southwark, on the judicial independence point. It is such an important point that I must not let it go past, if the House will indulge me. My approach to judicial independence is really very simple: you can disagree with the decision but you respect the decision-maker. It really is as simple as that. I fear that, for the second time this afternoon, I have touched on points of important constitutional principle. I will not continue the lecture any further. I hope that my noble friend Lady Helic will indeed withdraw her amendment.

[Baroness Helic (Con) [V]]

My Lords, I will be brief. I am very grateful to all noble Lords who have contributed and agree with a great deal of what has been said. The noble Lord, Lord Marks, has been an invaluable support throughout this process, not least on navigating the constitutional issues, and I commend his words on the feelings of survivors and the importance of up-to-date training.

The noble and learned Baroness, Lady Butler-Sloss, has been a powerful voice on training across all stages of this Bill. I am pleased we agree on the importance of training, even if we do not agree on the mechanism for reform. Her update on the specifics of training is very interesting. It is reassuring that the courts are at least heading in the right direction, even if I believe that there is still some way to go.

The noble Lord, Lord Paddick, makes the important point that not all training is equal. It is not enough to have training; it needs to be good training. That is why reform is important. The noble Lord, Lord Kennedy of Southwark, adds his support for updated, quality training. This really is a cross-party issue, and I hope that this will be noted by the judiciary, which I hope is following these debates.

My noble friend the Minister has been generous with his time and in his response. I also value his role as an intermediary with the judiciary. It is very good to hear from him that reform is under way. I hope he will continue to raise this issue in his meetings with the President of the Family Division and others, and to keep an eye on training, even if the Government will not direct it. I am certainly grateful for the assurances he has offered us today.

I hope that, in debating judicial training, we have helped raise its status as an issue and made clear to the Government and the judiciary how important it is in tackling domestic abuse. The greater detail on existing training that my noble friend offered was important. The assurances and commitments we are hearing from him, and from the judiciary via him, are very welcome. There is much more work to be done. I hope that this can be the beginning of a process, rather than the end. For now, I will withdraw the Motion.

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Moved by

[Lord Wolfson of Tredegar]

That this House do not insist on its Amendment 37, to which the Commons have disagreed for their Reason 37A, and do not insist on its Amendments 38 and 83, to which the Commons have disagreed for their Reasons 38A and 83A.

37A: Because it is inappropriate to extend the so-called ‘householder defence’ to victims of domestic abuse who use disproportionate force against their abusers in self-defence.

83A: Because it is inappropriate to provide a new defence for victims of domestic abuse who are compelled to commit an offence as a result of such abuse, as the existing common law defence of duress is sufficient.

[Lord Wolfson of Tredegar (Con)]

My Lords, the elected House disagreed with these amendments by a substantial majority. In inviting this House not to insist on these amendments, I remind noble Lords that the amendments seek to create two new statutory defences. Although the Government are sympathetic to the aims behind the new defences, we were, and we remain, entirely unconvinced of their necessity.

Amendment 37 sought to extend the provisions contained in Section 76 of the Criminal Justice and Immigration Act 2008. In effect, if I can shorten what is a bit of lengthy law, the amendment essentially seeks to extend the special householder defence, where force is used for the purposes of self-defence. Amendment 37 sought to extend those provisions to any person who is, or has been, a victim of domestic abuse and who has been accused of a crime involving the use of force against their abuser. The current householder defence in Section 76 recognises the acute circumstances of dealing with an unexpected intruder and makes it lawful to use disproportionate force. Amendment 37, however, made the disproportionate use of force defence available at any time and any place if the person accused has suffered domestic abuse at the hands of the person they assaulted.

Although the Government are sympathetic to the aim behind Amendment 37, we remain unpersuaded of its necessity. We are not aware of any significant evidence that demonstrates that the panoply of the current full and partial legal defences available are failing those accused of crimes where being a victim of domestic abuse is a factor to be taken into consideration. Full defences, such as the defence of self-defence, are defences to any crime and, if pleaded successfully, result in an acquittal. In the circumstances of domestic abuse, there are partial defences available relating to loss of control or diminished responsibility that can be argued. Additionally, the fact that an accused is also a victim of domestic abuse will be considered throughout the criminal justice system process, from the police investigation through to any CPS charging decision, down to defences deployed at trial under the existing law and, if relevant, as a mitigating factor in sentencing. We are also concerned that the proposed defence could, because it provides a full defence to murder, be open to misuse, potentially even by an abuser who sought to claim that they were the victim of domestic abuse—which is very widely defined in this Bill, which is a very good thing—rather than the actual victim.

Turning to Lords Amendment 38, I remind the House this sought to create a new statutory defence for victims of domestic abuse who, by reference to a reasonable person in the same situation as the victim and having the victim’s relevant characteristics, are compelled to commit certain crimes on the basis of having no realistic alternative. Amendment 83, which would insert a rather long and somewhat intimidating schedule, set out the offences to which this proposed defence would not be available, but even though that schedule is long, it would still mean that the defence would be available for many serious criminal offences, such as drug dealing, serious assaults occasioning actual bodily harm and most non-fatal driving offences. Although, again, the Government absolutely understand that victims of domestic abuse may also be compelled to resort to crime, we are not persuaded that the model on which this amendment is based, which is Section 45 of the Modern Slavery Act 2015, is either apt or effective with regard to domestic abuse. As I have stated previously, we have several concerns in relation to this amendment in terms of the nature of the defence itself and the nature of the offences for which this would be a defence. I will not detain the House by setting them out again, especially as the noble Baroness, Lady Kennedy of The Shaws, has now put forward an alternative amendment, Amendment 37B. It instead calls for independent review of the defences available to the victims of domestic abuse. However, I thought was worth briefly restating our arguments against the original Lords amendments because we contend that the existing full and partial defences are up to the task, and because of that, we have significant doubts about the case for a review of the kind proposed in Amendment 37B.

We are of course aware of the horrific impact and often devastation posed by domestic abuse, not only for direct victims but also indirect victims, such as children and the wider family and the House has noted the way the early clauses of the Bill have been drafted with that in mind.

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

My Lords, my noble friend Lady Kennedy of The Shaws set out in detail the case for her amendments in Committee and on Report, and it is disappointing that they have been rejected by the other place. In response, she has tabled Motion D1 in her name. As we have heard, she is seeking an independent review to look at the issues that we have been talking about throughout our consideration of these matters. I think that is the right way forward.

I am conscious that the noble Lord, Lord Wolfson of Tredegar, is resisting the new Motion from my noble friend, but she made the point, as have others, that if the Government are resisting the issues raised in the amendment, he ought to address the question of whether they could be looked at by the review of sentencing—or is that a step too far for the Government?

There is a huge issue here. I recall the debates that we had when my noble friend and others presented harrowing cases. There is a real point here: if there is an intruder in someone’s house then, as the noble Lord, Lord Paddick, said, often a male can defend himself there and has a defence, but a woman attacked by her partner in her own home, which should be a place of safety, cannot rely on such a defence. That cannot be right.

The Bill is seeking to address the whole issue of domestic abuse in all its various facets. It is a good Bill, but it would be an even better one if we could make sure that all the gaps were plugged here. The fact is that women in their own homes, their place of safety, can often find themselves in very dangerous situations. If they have to defend themselves and end up injuring or killing their partner, we should understand that and ensure that they have the proper defences to take account of the difficult situation that they have found themselves in, often over many years. After all, these things escalate; they do not happen overnight.

My noble friend has identified an important point here, and I hope that when the Minister responds he can address it. We need to find a way to look at the issues that my noble friend raised in the review of sentencing, as he referred to in his earlier remarks.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am again grateful to noble Lords who have contributed to these exchanges. Right at the start, I say that the noble Baroness, Lady Kennedy of The Shaws, was spot on when she characterised my position as disagreeing but sympathising—that is absolutely right. For the reasons that I have set out, I disagree but sympathise with the aims of the amendments.

Like the noble Baroness, I found the meeting with the representatives from the Centre for Women’s Justice extremely helpful. I have read a lot of material that they have produced, and, in particular, like her, I found the conversation with the survivor who joined us extremely powerful. Like my noble friend Lord Randall of Uxbridge, we have to remember that, while we may be debating what sometimes seem here to be quite dry and technical issues of law, there are real people—if I may use that terrible phrase—and, in this case, real victims of domestic abuse, who are affected. The House can be assured that I have that at the very front of my thinking.

I will not go over the substantive points that I made—I hope I am excused for that. As I explained, the review is of sentencing in domestic homicide cases, but it is a broad review. The terms of reference are still being developed, but it will look at the impact of defences on sentencing, and, while I appreciate that that is not as far as the noble Baroness, Lady Kennedy of The Shaws, would like me to go, I hope that it is an indication of the seriousness with which the Government take this matter and, in particular, the review of sentencing.

I pick up the point of the noble Lord, Lord Paddick. We respectfully disagree that there is a read-over to either the householder or the trafficking issue. As to the latter, I have made clear on previous occasions that we have concerns with the way that that defence is used in practice. Indeed, if I remember correctly, one of Her Majesty’s judges recently explained that in a case that he was hearing in, I think, Bradford—I may be misremembering that. As such, there is an issue as to how that trafficking offence is applied in practice.

Like the right reverend Prelate the Bishop of Gloucester, I am well aware that there is a substantial proportion of women in prison who have themselves been victims of domestic abuse—that is of course why a review of sentencing is so important. Without being trite, they are in prison because they were given a prison sentence; therefore, a focus on sentencing in the review is entirely appropriate.

I do not know whether there is anything I can do to help the noble Baroness, Lady Jones of Moulsecoomb, in her apparent dichotomy between lawyers on the one hand and common sense on the other. The point I was making about the majority in the other place was actually that it was not the standard government majority, so to speak: it was a significant majority—with the greatest respect, that is something that this House ought to bear in mind. However, my noble friend Lord Randall of Uxbridge did perhaps solve an age-old conundrum about a justification for the existence of lawyers, particularly in Parliament. He even came close to giving an explanation for their possible utility, so I am grateful to him for that.

My noble friend was also right when he said that people should not go to prison if they have been convicted of a crime that they were forced to commit—“forced” is a critical word, and that is where you get into the defence of duress. However, as I said, it is not only the question of the defence of duress: if there is a conviction, the nature of the force—if it does not amount to a defence—would still be relevant to sentencing and to mitigation.

As such, I hope that I have set out the reasons why the Government disagree. I hope that I have also responded to the particular point put to me by the noble Lord, Lord Kennedy of Southwark, on the scope of the review. However, for the reasons that I have set out, I hope that the noble Baroness, Lady Kennedy of The Shaws, will indeed not press her amendment.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I have received no requests to speak after the Minister. I beg your pardon; I see that the noble Baroness, Lady Jones, wishes to speak.

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[Lord Wolfson of Tredegar (Con)]

As I explained, the review’s terms of reference are being set out. The date will depend on how broad the review is, which will obviously affect the date by which it reports. Certainly, as soon as there is a date fixed or anticipated, I can perhaps write to the noble Baroness to inform her of it.

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

My Lords, I am of course disappointed that there has not been any movement—because the suggestion of there being a review in relation to the defences was posited last week, and I had hoped that, in the interim, we might have heard that some movement had taken place behind the scenes. Given that the terms of reference have not been finalised, I will write to the Lord Chancellor and seek to persuade him that the terms of reference might extend to a look at the defences as well as the sentencing in homicide cases where there is a background of domestic violence or abuse.

As I indicated, I will not press this Motion. I beg leave to withdraw it, but I ask that the good offices of the Lord Chancellor’s Department might be open to some reconsideration.