Peter Kyle
Main Page: Peter Kyle (Labour - Hove and Portslade)Department Debates - View all Peter Kyle's debates with the Home Office
Domestic Abuse Bill (Second sitting)
Peter Kyle ExcerptsThursday 4th June 2020
(4 years, 5 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 4 June 2020 - (4 Jun 2020)
Nickie Aiken
Q
Somiya Basar: I am not aware of it.
Peter Kyle (Hove) (Lab)
Q
Somiya Basar: I really felt abandoned, even by the British state. I think they have failed me. Had there been any other channel of being here, I would have been notified by the embassies, because the embassies in the different countries that we lived in knew exactly what was happening with myself, with my children. At some point the father had abandoned the children with me in South Africa with no immigration status. The British embassy knew full well that we were in dire straits, and not much help was available, so I think I have been failed.
Peter Kyle
Q
Saliha Rashid: Quite commonly, across the board in terms of the group that I am here to represent, we have felt like the system has failed us, whether that is in the family courts or the criminal justice system. Many survivors have been failed by the criminal justice system time after time: for example, repeated failures to enforce protection orders. Even accessing legal aid has been problematic for many women. Many had to navigate the legal complexities of the system with very little support, which impacted on them both emotionally and financially.
Peter Kyle
Q
Saliha Rashid: Yes, I agree with what you are saying. In many cases the system does not exist, but where systems do exist—for example, the family courts—women feel that so often they are not believed. For many women, it has been re-victimising and re-traumatising. One woman from the group described it as horrific, traumatic psychological warfare, and mind games that just replicated the abuse in the relationship. This is a system that exists, but also seems to fail to listen to children and to keep them safe. That is what women have reported.
Peter Kyle
Q
Saliha Rashid: Speaking from a disabled victim’s point of view, no, because the services that exist either have an understanding of issues relating to disability but no understanding of domestic abuse and gender-based violence, or it is the other way around and they understand domestic abuse but there is no awareness of disability and how they are linked.
The Chair
I have Mike Wood, Virginia Crosbie and Andrew Bowie, unless anybody else wants to ask questions, and we have nine minutes, just to give you a guide for how long to make your questions.
Andrew Bowie
Q
Suzanne Jacob: Apologies, because I am struggling to hear Ellie, so I may at times repeat some of her no doubt very good points. Everyone in the sector hugely welcomes not just the creation of the role, but the appointment of Nicole Jacobs specifically. She is an extremely adept and well qualified person, and as many people have said she is already making a difference in the role. I think we have to be a little bit careful in terms of overstretching our expectations not just of what the person can do but of what the role can do, and making sure that we do not blur the boundary between the Government’s responsibility and the responsibility of the independent commissioner.
It is particularly important to make sure that we do not end up with things parked with the commissioner that can and should be dealt with much more quickly. For example, at SafeLives, we are concerned that as currently drafted, the statutory duty does not live up to the big ambition that we know the Government have around responding to domestic abuse, supporting as it does just 0.5% of the total of the more than 2 million victims who experience domestic abuse every year.
The mapping process that has been suggested for the commissioner, I would suggest, is a repetition of quite a lot of mapping processes. I have been at SafeLives for five and a half years and I think we have taken part in at least one, if not more, mapping processes with the Government every year that I have been in post. I suggest that, in terms of priority need, it is that cross-Government picture that will be really important. The commissioner made the point clearly that the Home Office and the Ministry of Justice in particular have borne the burden of domestic abuse for many years, but actually every single part of Government has a big role to play. We have not seen all parts of Government playing that role particularly well in the past.
In terms of priorities, it would be brilliant to see the commissioner, as Ellie said as well, resourced to address things such as the family court, domestic homicide reviews, mental health connections to domestic abuse, and the needs of children and young people, which primarily sit outside the Home Office and the Ministry of Justice. That is where I would love her to start.
Peter Kyle
Q
Ellie Butt: The national domestic abuse helpline is a national resource that is often, as you say, the first place a women might call if she thinks that she is experiencing domestic abuse, wants to talk to somebody, or is looking for a service or some information or advice. We have seen demand for that service increase hugely since the covid-19 pandemic struck. Our calls and contacts are up by 66% and web traffic, which includes the ability to live chat with our helpline team, has increased by more than 900% in the last few weeks. It is a hugely important and in-demand service.
There is the challenge of just ensuring that we can meet that demand. It is also important for the helpline team and for women calling the helpline that they have somewhere to go and there is a service for them when they call. That is why what is really needed to accompany the Bill is funding for the full range of specialist services that women and children need. We know that there are not enough refuges to meet demand in this country. I have been looking at the stats this week and the number of women calling the helpline, seeking a refuge place and there not being one suitable for them has been slightly increasing over the last few weeks. That is a huge worry. There is a real opportunity with this Bill to fix that and to get the duty right, so the full range of services that women need is there for them.
I know that you have already heard lots of evidence about this today, but the support for migrant women is not good enough. There are often very few options for them if they have no recourse to public funds. Again, the Bill is a real opportunity to fix that so that all women can access the range of services from the specialist third sector and from public services. Those are some of the key challenges when women call the helpline.
Peter Kyle
Q
Ellie Butt: Yes, it does. It is really important that the commissioner has her independence so that she can determine what issues she wants to look into, speak truth to power, have difficult conversations with decision makers, and have the confidence of her independent role so that the organisations that have given evidence today and survivors themselves can work with her. I think it is really important and should be protected and strengthened as much as possible.
Peter Kyle
Q
Ellie Butt: I know there have been different recommendations about whether the domestic abuse commissioner should report to Parliament or the Cabinet Office. I do not necessarily have strong views on that; it is just crucial that, wherever she is reporting, she has independence. I am open to the Cabinet Office idea, but the relationship with the Home Office is also important, because it is a cross-Government issue, but the Home Office has a key responsibility in this area.
Peter Kyle
Q
Suzanne Jacob: I think you have heard from many of the witnesses today what an incredible ordeal family court is at the moment. Anything that can improve that process is important to do, so we at SafeLives are very supportive of the amendments that Women’s Aid has suggested, in terms of going further and getting rid of cross-examination from all parts of the court process when someone is facing an alleged abuser or ex-abuser. That is really important.
There are also a number of other suggested changes from other organisations around the role and expertise of the Children and Family Court Advisory and Support Service, for example, which we think are important. There is currently something innately adversarial about the family court process, which makes it an incredibly painful thing for both adults and children to go through. Many, many women who go through the family court process would tell you that they would rather they had just stayed with the abuser rather than go through family court, which is a horrible indictment of our current processes.
Alex Chalk
Q
Ellie Butt: Yes, absolutely.
Victoria Atkins
Q
Giselle Valle: I think the question is about referrals, not about checking immigration status. It is about actual referrals to the Home Office.
Peter Kyle
Q
Lyndsey Dearlove: I think there are two parts to it. The Bill now speaks to big issues, but there are some practical issues that can make a real difference for children who have experienced domestic abuse. Some of that is about looking at their interaction with the NHS and at how they can maintain their appointments. One woman, who has allowed me to tell her story, came into our refuge after she had waited about 18 months for a referral to a speech therapist; she was concerned about her daughter’s speech. The social worker in the area told her that she had to leave and move into a refuge. After arriving in the refuge, she waited another 8 months for a referral to speech therapy. She was then rehoused, but her child was too old to benefit from speech therapy. Having a protected status on NHS waiting lists can be really important and can enable somebody to make the decision to leave and flee, without having that as a hindrance.
The other factor is looking at children’s access to schools and making sure they have that as soon as possible. Within primary schools the time can be quite reduced, dependent on which area of London you are in. If you are talking about secondary schools and GCSEs, getting a child back into school and into a school rhythm is exceptionally important. We now see that children have been forced to travel, pre-covid-19, across two or three boroughs. Unfortunately, in one instance, a gang picked up this young person, whose movement was known because they were going backwards and forwards, and used them to transport drugs. We know those opportunities increase vulnerabilities for children. If we can do some of the really simple, practical measures that can reduce that, they do make a big difference.
Peter Kyle
Q
Lyndsey Dearlove: I am going to be honest and say this: when multi-agency risk assessment conferences were launched in the UK, we all came together as professionals and we stepped up. We did excellently for the first couple of years at making sure the right information was on the right days, and that everybody was sitting in the room listening to the right topics. We know that has dissipated over the past couple of years, so holding to people to account and having legislation in place will always be valuable. We cannot underestimate the value of having a Bill that talks about children and makes provision directly for children who are experiencing domestic abuse.
Peter Kyle
Q
Lyndsey Dearlove: It is about prioritisation. It is about capacity. It is about having the right person in the post who gets the right set of training. We know that people move on into different roles, and there is a transition. It is about what we must not have. Someone said to me very early on that we must not have people who are championing issues around domestic abuse who then retire or move on to different roles, and that championing disappears. We have to have a consistent voice, because our victims are consistently telling us the same thing.
Peter Kyle
Q
Lyndsey Dearlove: Yes, and the domestic abuse definition is incredibly important. That is used so much either to enable people to access services, or sometimes as the gatekeeper. It is vital to have the right definition that speaks to all the people who experience domestic abuse and understands those experiences. Including economic abuse within that is absolutely imperative.
Peter Kyle
Main Page: Peter Kyle (Labour - Hove and Portslade)Department Debates - View all Peter Kyle's debates with the Home Office
Domestic Abuse Bill (First sitting)
Peter Kyle ExcerptsThursday 4th June 2020
(4 years, 5 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 4 June 2020 - (4 Jun 2020)
The Chair
We will now have Peter Kyle, followed by Virginia Crosbie and Liz Twist. The Ministers have indicated that they want to ask you some questions, but I will try to save them to the end and get the Back Benchers in first.
Peter Kyle (Hove) (Lab)
Q
Nicole Jacobs: I have developed my views on that over the past few months. Particularly in the past few months, in the period of covid-19, I have realised how much it helps Government to have an independent voice helping and advising and, at the same time, pushing for better, more effective ways of doing things. That does not mean that I have won every battle. It has not really been a battle; it has been very co-operative.
I have realised in recent months how much domestic abuse is an issue that runs through every Department—every strand of Government—and some of my role helps to bring those strands together. I said at the Prime Minister’s summit recently that I would love to see a cross-Government action plan. I am now seeing—as you will have recognised before—how much Government Departments in themselves work in silos and how much you need some kind of independent body such as mine. I feel that I have been very helpful, if I can say that.
Peter Kyle
Q
Nicole Jacobs: Of course, yes. I have been struck, in the time that I have been appointed, by how much it means to people to know that there is an independent Domestic Abuse Commissioner. People have said to me, “I have waited for years for this kind of thing.” In fact, I feel like the expectation is so high.
Just before I came here, I had a call from a woman who runs a campaign with hundreds, if not thousands, of people about family courts. She really values the idea that she can call me and talk to me about her worries about the Bill, and know that I can talk to her about that, and that I am not speaking for the Government. Equally, people expect me to co-operate with Government if I can, because they understand that I will have a certain level of access to conversations and influence, and it is important to them to know that is happening.
Peter Kyle
Q
Nicole Jacobs: Absolutely. First of all, I would not allow that. To some degree, I have to be firm in understanding where the boundaries are. If that was happening, they would probably understand that I would assert that was happening.
Peter Kyle
Q
Nicole Jacobs: I suppose I would say to the whole Committee that if there is any way that you feel you could strengthen my independence, I would obviously welcome it, and I think anyone on this Committee should want to welcome that. As you say, it is important to the public and to the Government to know that. It makes the relationship functional. My experience, and the way I have been communicated with by Ministers and civil servants to date, has been entirely within those bounds, which shows me how everyone recognises it has to function—in a healthy, independent state.
Peter Kyle
Q
Nicole Jacobs: My view of the role is probably more simplistic. Yes, I think it is your responsibility to sort it out. I really believe that. In my view, and with the kinds of rules I play by on this, I will always speak the truth, so far as I understand it, regardless of who I am talking to about it. That is what I have to abide by, and I will expect to be independent. However the logistics are set out, I would really welcome this Committee making sure that they are as independent as possible, without any doubt.
Peter Kyle
Q
Nicole Jacobs: I think it is welcome. I would just take a step back and urge you to consider the kind of evidence that someone would produce in order to allow for that. Most people who are subject to domestic abuse will not always have—there will not be a record in many places, such as with the police, or of a conviction, for that matter, so I would be mindful that you consider how many people could be coming through the court and still be subject to cross-examination if they are not able to “prove” domestic abuse.
I think it points to a larger issue within family courts: because of the way the family courts currently operate, they are not able to understand and differentiate fully the breadth of what has happened, yet they make incredibly life-changing decisions. I would not like someone to make decisions about my children based on very little evidence and a short assessment, but that is what we often ask the family courts to do, in respect of cross-examination or any number of things that will happen. I just worry that we need a much broader ambition for our family courts to really understand exactly the breadth of what is happening, and not confine them to wanting domestic abuse to be proven in a particular way. There are other ways we could find these things out. That would be my higher ambition.
Specifically on the cross-examination, I would like that to be broader. There are studies that show that one in four people responding to the study who were subject to domestic abuse had been cross-examined if they had been in a family court. It is horrific to be cross-examined by someone who you fear, who knows intimate details about you. It puts you in a terrible position, obviously. So I am pleased that this is in the Bill. I think it could be strengthened.
The Chair
Thank you. A number of Members have caught my eye, starting with Virginia Crosbie, then Liz Twist, Alex Davies-Jones, Liz Saville Roberts and Mike Wood, and of course the Minister will want to ask questions. I can see what the problem is going to be: we only have less than 15 minutes. Could we bear that in mind and perhaps have brief questions and answers? It is always a problem in these sessions.
Nicole Jacobs: I will be brief, I promise.
Mike Wood
Q
Pragna Patel: I think the statutory definition is definitely a step forward. It is a very important definition. I wish it was gendered, because the social reality of domestic abuse is that it disproportionately affects women and girls. As the Bill is intended to mirror the Istanbul convention, it would have made sense to have been a violence against women and girls Bill.
That is not to say that I do not think that other groups face violence, but this is about gender inequality. Domestic abuse is a reflection of the cause and consequence of gender inequality, so it makes more sense to me to include a gendered understanding of domestic abuse for a number of reasons, including for the gathering of evidence to inform future policy and the need to ensure that support and prevention measures are targeted particularly at young girls, so that they can better understand abuse, recognise abuse and negotiate abuse.
The broad categories of abuse that are set out in the definition are very useful, but it would be important to show that there are also specific forms of abuse that are not included, including forced marriage, honour-based violence, female genital mutilation and other forms of cultural harm that straddle these broad categories. They straddle physical violence, sexual violence, emotional abuse and also financial abuse.
I think it can be strengthened. I think the statutory guidance and the explanation of the definition could spell out some of these things better.
Peter Kyle
Q
In your written evidence and in your verbal evidence today you say that the pilot will cover support for about 130 to about 150 women. How many women will be left out from that? How many people are we talking about in general, in total?
Pragna Patel: I wish I could tell you that. I wish I could tell you how many women there are who are subject to abuse in this country and who are subject to no recourse to public funds. Those figures just do not exist, and that is part of the problem. That is part of the problem of why this issue is so invisible.
Some of the ways in which we have tried to gauge is by looking at how many women, for example, have received the DDVC. I think the figure in 2019 was, if I am not mistaken, that about 1,200 were entitled to the DDVC. If we then look at Women’s Aid statistics and the statistics that Southall Black Sisters have gathered over the years, which suggest that two-thirds of the women who come to us are not entitled to the DDVC, we get a figure of 3,000-odd women. That is the best estimate I can give you. It probably could be more because of under-reporting, so we are talking about possibly low thousands. That is why it is not beyond our ability to ensure that those women receive the support they need.
There is enough evidence. We do not need another pilot project to assess needs. Those needs have been assessed by my organisation and others over the years. The Home Office internal review has not been published. We would like to see that published. We would like to see what the equality outcome of that has been. That would also help us in terms of understanding where the gaps in the evidence are.
Andrew Bowie (West Aberdeenshire and Kincardine) (Con)
Q
Pragna Patel: I think it is possible to provide a gendered analysis of domestic abuse while also recognising that there are circumstances in which men also face abuse. I do not think that the two need be mutually exclusive. I think it is possible for us to draft the Bill in such a way—the way in which we talk about the fact that it applies to many groups in society but the overwhelming victims are women—that it should not necessarily do what you fear might happen. The disadvantage of not making it gendered—I have seen this in our local area and the way in which statistics are gathered and skewed. Let me give you an example, if I may.
When a woman reports domestic abuse and the police turn up at the door, the perpetrator usually makes a counter-allegation and says, “Well, actually, it was her abusing me.” The police feel that they cannot judge who is the victim and who is the perpetrator. What they have done—we have seen this in a number of our cases—is that they either label both as perpetrators or both as victims. There have been circumstances when the victim herself has been labelled the perpetrator and arrested and charged. What that then means is that the statistics gathered locally are skewed, because it suggests that more men are victims of domestic abuse than they are. In all these cases where women have been categorised as perpetrators, by the time they have got to court those charges have been dropped, because the context has been interrogated and it has been seen that they were the victims.
What I am saying is that that then skews the statistics. It then skews the policies that are needed to deal with abuse and skews policies that are needed to deal particularly with prevention and who the target audiences should be. It is dangerous not to reflect what is a social—and a global—reality and what is recognised in other UN laws, in international human rights law, under the convention on the elimination of all forms of discrimination against women and in the Istanbul convention itself: that domestic abuse is gendered. It does not mean, therefore, that we cannot accept that abuse also occurs towards men and make sure that there are also protective measures to deal with that.
Peter Kyle
Main Page: Peter Kyle (Labour - Hove and Portslade)Department Debates - View all Peter Kyle's debates with the Home Office
Domestic Abuse Bill (Third sitting)
Peter Kyle ExcerptsTuesday 9th June 2020
(4 years, 4 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 9 June 2020 - (9 Jun 2020)
Jess Phillips (Birmingham, Yardley) (Lab)
I beg to move amendment 50, in clause 1, page 2, line 7, at end insert—
“(5A) For the purposes of this Act, people affected by domestic abuse may include any child (such as a child in relation to whom A or B has a parental relationship) who sees, hears or is otherwise exposed to domestic abuse within the meaning of this section.”
An amendment so children are recognised within the statutory definition of domestic abuse.
Thank you, Madam Chairman—that always sounds ridiculous, so I will say Madam Chair. I will start as I mean to go on, with a feminist flourish. The aim of the amendment is to ensure that children who see, hear or are otherwise affected by domestic abuse—in other words, who themselves experience the domestic abuse—perpetrated by one person aged 16 or over against another, are recognised in the proposed statutory definition of domestic abuse.
We will come later to the debate about the statutory definition and the importance of having a statutory definition. It is almost unbelievable to somebody who has worked in the field for so long that one does not exist. I think people on the street would think that one did. I will not talk more broadly about the definition now, but merely about the amendment with regard to children.
What are the reasons for the amendment? Why is it important? Analysis from the Children’s Commissioner suggests that 831,000 children in England live in households that report domestic abuse. On average, 692 child-in-need assessments—I presume that that is the figure for before covid-19—are carried out every single day that highlight domestic abuse as a feature of a child’s or a young person’s life. Having worked in the field, I know that that is an enormous under-reporting, but, still, the figure is 692 children every single day.
The Women’s Aid annual survey reported that, in 2018-19, 13,787 children used refuge services, compared with 11,489 women, so there are more children accessing our refuge services. When I worked in Refuge, there was always a board that said, “Flat 1, flat 2, flat 3, flat 4, flat 5”, and it was always, “Woman plus three” or “Woman plus four”—that was the number of children she had with her in the refuge accommodation. There were always more children than women in Refuge.
According to the Women’s Aid study, 187,403 children used community-based services, compared with 156,169 women. I want to explain that a little bit, because the headline figure of 187,403 does not mean that, in a single year, those children necessarily received any direct support as a result of their domestic abuse. I worked for a Women’s Aid in community services. That is where the vast majority of victims of all kind are seen; it far outstrips refuge accommodation. The reality is that you would sit with a form in front of you and often with a woman in front of you who was telling you of the horror she was facing at home, where she was still living or interacting with the perpetrator, because of the family courts or for a variety of other reasons, and you would know, and would have recorded on your system, the number of children in her household, but you might never lay eyes on those children—you might never see them. They would never necessarily come into community services. My organisation dealt with 8,000 to 9,000 community cases a year. Had we had the associated children in, it would have been like running 10 inner-city schools in the west midlands. Although that number of children are recorded in community services, it does not necessarily mean that they are accessing support.
The consequences of these childhood experiences are well known, ranging from brain development being negatively affected and cognitive and sensory growth being impacted, through to people developing personality and behavioural problems, depression and suicidal tendencies. Children who experience domestic violence from the age of three onwards reported 30% higher than average antisocial behaviours at the age of 14.
There is not really any crime type that we debate in this building that we could not link back in some way to adverse childhood experiences, whether we are talking about the link between domestic violence perpetration and terrorism, about the adverse childhood experiences that lead to grooming and sexual exploitation, about knife crime or about county lines exploitation. In every single one of these crime types, if we were to look back at adverse childhood experiences, it would not be too long before we saw a pattern of domestic abuse. It is haunting how much domestic abuse affects many of the issues that the Home Office deals with.
The children who have suffered report 13% higher than average conduct problems, such as fighting with their peers. The Joint Committee on the Draft Domestic Abuse Bill highlighted concerns that if children’s status as victims of domestic abuse that occurs in their household—rather than that which occurs to them as individuals in their own relationships or directly at the hands of the perpetrator in their home—was not recognised, the Bill could have a negative impact on the level and quality of specialist support available to children.
The provision of services for child victims of domestic abuse is already disjointed. Studies have shown that support for children is often a bolt-on to existing domestic abuse services and that many children do not receive any specialist support following their experiences of domestic abuse and violence.
Without wanting to blow my own trumpet, I think it is important to say that my in-depth knowledge of the domestic abuse services in Birmingham is probably a little bit better than that of the average Member of Parliament. I have worked in most of those services; I know where the services are. When I need a refuge bed, I rarely go through a referral line—my next-door neighbour but one is the place where I would go—and I have the phone numbers of the people I need to talk to at any given moment. If a child came into my constituency office and was facing domestic abuse at home, or came in with their mother and their mother was begging for direct support for that child, I would not know where to send that child for certainty of service.
Peter Kyle (Hove) (Lab)
What my hon. Friend describes is a set of services that works within the rules. I believe she is saying that guidance and codes go so far, but we really need legislation. Does she agree that the very existence of this good Bill, which we need, proves that statutory definitions make a difference and that that, fundamentally, is why we need their extension to children?
Jess Phillips
I absolutely agree. Throughout the day, no doubt, we will be told, as we were on Second Reading, and as we will be on Report, that, even though I am a sometime opponent of some things in the Bill—actually, I am not an opponent of anything in the Bill; I am an opponent of what I fear is missing from it—the definition is important and ground-breaking. We will be told that it is finally the leap pad that we can all use to do some things we have all so deeply wanted to do, but we have to make sure that we do that for the nation’s children and that they are on the face of the Bill.
I was talking about what I saw in services and saying that I would not necessarily be able to find somewhere for a child. In a case in my constituency, a woman’s husband was convicted in the Crown court of domestic abuse towards her. Her child is now going through the family courts. That is a story we will hear again and again throughout the passage of the Bill. The child’s school identified a need for extra support and had access to some educational psychology resources that could be put in place at the school. The school had to get permission from both parents. The father refused to allow the child access to the support. Those involved at the school, which is not huge administratively—primary schools in Birmingham, Yardley do not have big teams of policy people and people making decisions—felt anxious, nervous and unprotected about what to do, so they allowed the father to make that decision. There are all sorts of reasons why we need legislative change to provide explicitly that public bodies have a duty in that area. That is just one example.
When I worked in Refuge accommodation, I saw a decline in the number of family support workers. When I arrived, we had two children’s rooms in the main refuge, which had 18 flats for families to live in. There were communal spaces and two family support units, and, more importantly, four family support workers. Their entire job was to work with children, and to work through their experiences with them, and also to work with mothers whose sense that they could tell their children what to do had often been removed by a perpetrator who had undermined them at every level, to the point where the children—certainly the older children in Refuge—became the parent. Those workers watch childhoods being lost, usually by older teenage girls. However, in some cases it is boys who become a parent to their younger siblings.
I have seen horrendous cases, including one where I had to help with and facilitate the removal of children from a family for their best interest, when a group of three siblings was separated so that the oldest was sent somewhere separate from the two younger ones. I have lots of siblings, and it felt as if separating that sibling group was the cruellest thing ever to have to do, but that older child would never have had a childhood had she been resettled with her younger siblings, because, at the age of eight, she had become their mother.
Even in the time I worked in Refuge accommodation, we closed the family rooms because there was no longer funding for specific family support work, which came through early intervention grants, either through Supporting People funding or the local authority. The rooms that had been filled with big murals of Disney characters and the play schemes that offered places in summer—I remember we used to do this brilliant den-building thing, because of the idea that kids would like to build a space they felt safe in—started to disappear from refuges across the land. The onus on, and ability of, organisations to work directly with children has been limited.
If we were truly representative and I asked Members to survey all their constituents who had suffered domestic abuse about what single thing every victim wanted to see, there would be a variety of answers. However, I guarantee that a huge percentage would say, “I just want some support for my kids. I just want someone to talk to my kids. My kids have nowhere to go.” That is what victims of domestic violence say again and again at coffee mornings, at refuge support groups and at every refuge’s weekly house meeting. People are saying, week in and week out, “I just want something for my kids.”
Do not just take my word for it. Research conducted by the University of Stirling has shown the following: in two thirds of local authorities questioned, children faced barriers to accessing support in cases of domestic abuse. Over 10% of those local authorities had no specialist support for children who were victims of domestic abuse. In one third of local authorities questioned, children’s access to services was restricted by postcode.
I see the hon. Member for Dudley South in the room; I used to work at Black Country Women’s Aid and offer services across the great borough of Dudley. We had a rape crisis service that offered services to adults and children who were victims in Sandwell, but we offered other services in Dudley—around domestic abuse, for example. Rape victims and children who had been sexually abused or sexually assaulted would ring our services, and if they lived in Dudley, we would have to say to them, “I’m sorry, that service is for Sandwell kids. We cannot come into a school in Dudley.” I hasten to add that that is not the case now, I am pleased to say.
I am covered by parliamentary privilege, so I can say that I sometimes used to fake an address in Sandwell. I used to think, “The crime data for this one house is going to go through the roof. This is going to be some horrible hothouse of abuse where every person in Dudley who has ever been abused lives.” There is nothing worse than working for a service and telling people that they cannot access it. The people who live in Sandwell and Dudley definitely know the difference between the two, and it would be a grave insult to accuse someone who is from one area of being from the other; that would be like saying I am from Manchester. Nevertheless, the idea that people in the west midlands understand lines drawn on a local government map in 1974 when their children need support is frankly laughable.
Funding for children’s services fell by £3 billion between 2010 and 2018, and children’s services in two thirds of local authorities questioned are reliant on time-limited funding. It is important to stress the issue of time-limited funding: if I had superpowers beyond those I will ever have, I would scrap 31 March from every calendar in the world. People who work in the voluntary sector are aware that when a child comes in to start 10 sessions of support over a financial year, they might not know until well into April whether they will still have the funding to carry on supporting that child. The voluntary sector currently lives hand to mouth; that is not a criticism of this Government, but a criticism of literally every Government. The way we manage funding for those dealing with people whose lives are completely and utterly chaotic is a travesty.
In addition, 60% of local authorities that responded to the recent Women’s Aid survey have had to reduce or cancel children’s services as a result of covid-19. Cross-national comparative research has shown that when children are recognised as direct victims, they are more likely to be spoken to and have their perspective taken into account.
Jess Phillips
I absolutely agree; there needs to be a consistent thread. I suppose the Government would lean on the idea of Ofsted’s safeguarding principles with regard to all schools, regardless of whatever jurisdiction they sit under. However, if we looked at any of the inquiries into sexual violence or harassment in schools, which have been done by what feels like every Select Committee over the past five years, we would see there is a real disconnect between the safeguarding that Ofsted is able to identify and incidents where, for example, peer-on-peer sexual violence in a school is handled appallingly. I cannot help but think there needs to be a far more consistent approach.
What is more, for example with Operation Encompass, a proper monitoring review and action plan needs to come out of any review. A former chief constable of Dorset Police wrote to me. He now runs an organisation that goes into schools and works with Operation Encompass. He told me that during a recent webinar with 150 school safeguarding leads, he ran an online poll, to ask who was aware of Operation Encompass: 35% said yes, they were aware; 49% said no, they were not; 9% said that they were not sure; and 7% said yes, but that they were not receiving any calls about children in such circumstances. I can only hope that they have very lucky children in their school without any incidences at home, although I find that vanishingly hard to believe.
When we talk about the voice of the child, nowhere in the debate that we will have over the next 10 days will we hear what I can only describe as a primal cry about hearing the voice of the child, including when we discuss the family courts. If I wanted to filibuster all day, I could read from the special folder in my inbox, which contains hundreds if not thousands of emails from children and adult victims who have been through the family courts, talking about how the children were ignored. There is a deep and meaningful reason why the voice of the child has to be put on the face of the Bill. Later, when we discuss the family courts, what we hear will put us all beyond any doubt that rarely are children asked what is happening at home by anyone, even when services are instigated.
Including children in the definition of domestic abuse would also mean that public authorities and frontline practitioners, including CAFCASS—the Children and Family Court Advisory and Support Service—and the police, will be encouraged to recognise and respond to children experiencing domestic abuse. Local authorities and their partners would recognise the importance of ensuring that child victims have access to support for their needs. That is deeply important.
I do not underestimate how stretched local authorities are. In most circumstances, they are trying to do the very best that they can. I used to say that I wished that the victims of domestic abuse were as important as the bins—there is a statutory duty to collect the bins—but now they will be. We have made it to the heady level of domestic abuse victims being as important as bins! I now wish to see children in every local authority reach that heady status. I do not underestimate the importance of bins, though. I am from Birmingham, where we have bin strikes all the time, so I cannot tell you how important I think that the collection of bins is—I do not wish to present otherwise to the Committee.
The report of the Joint Committee on the Draft Domestic Abuse Bill echoed much of what I am saying, stating:
“We recommend the Bill be amended so the status of children as victims of domestic abuse that occurs in their household is recognised and welcome the assurance from the Home Office Minister that the Government seeks to include the harm caused to children in abusive households in the definition”—
we would welcome that.
The Minister sent a letter following Second Reading this time—the Joint Committee report is actually a piece of scrutiny work done on a previous Bill. The Bill we are considering is a different one but, in shorthand, let us all assume that we are talking about the same Bill for now. In the letter, the Minister stated:
“It is vital that we support children who are affected by domestic abuse, and the Bill expressly recognises that in the statutory functions of the domestic abuse commissioner. One of the key functions of the commissioner will be to encourage good practice in the identification of children affected by domestic abuse and the provision of protection and support.”
I want to know what “encourage” means—the domestic abuse commissioner will “encourage”.
The domestic abuse commissioner, in her evidence to us on Monday, very much encouraged the idea that more support is needed for the victims of domestic violence who are children. She told a clear story about how shocking one particular service that seemed to be doing it well was to her—that she had never seen such a service. What powers will the powers of encouragement have? Will the Minister explain in her remarks how the commissioner will encourage that? The Government have not been encouraged to include children. The commissioner—regardless of her title—has no budget to commission children’s services in the country, and she has no power to demand that a local authority does it.
Peter Kyle
My hon. Friend makes an important point in focusing on the attention that encouragement is given in the current system. Can she give some examples, from her own experience, of all the other areas where services are encouraged to do something, but that does not actually happen?
Peter Kyle
My hon. Friend and I both have a lot of experience working in the voluntary sector, admittedly in very different parts. We both know that, if we had three charities in a room and asked them a question, we would get three different answers, but on this issue, is she aware of any charitable or campaigning organisation that supports children and opposes including children in the definition in the Bill?
Jess Phillips
I am not. Often, the two issues that the children’s sector mainly campaigns for in this regard become conflated. One is the issue of teenage relationship abuse and the age limit of 16, at which the definition that we are discussing currently sits. There is some divergence of opinion about whether the way to include children in the Bill is to remove age limits. For very obvious reasons, there are concerns about that. As somebody who has represented and worked with child victims in the past, I would not wish to see them criminalised—that is one issue. On the issue of whether a child should receive in the definition the status of victim rather than witness of domestic abuse, I have heard no divergence—my hon. Friend is absolutely right.
As somebody who worked in the women’s sector, I have to say that if the Government want to take some real credit for what they have done for the domestic violence sector, the greatest thing that they have done— I do not mean this in a glib way— is to genuinely unite charities, which now work in a way that was certainly not always the case when I worked in the field. On this matter, they are all singing from the same hymn sheet.
As always, I want to give voice to some of those who have suffered in childhood. Charlie Webster, the Sky Sports presenter, who sits on the victims’ board at the Ministry of Justice to advise the Government, has expressed real frustration that there seems to be little to no movement on this issue. She has talked about her experience of living with domestic abuse as a child. She said:
“Home is supposed to be your safe, loving space. As soon as I walked in the door from school I wouldn’t know where to put my feet in case I made a noise. I would chew quietly and make sure my teeth wouldn’t touch my knife and fork, not making any noise, trying to keep the peace to protect my mum. Anything would make him angry, even the sound of me eating. Hearing that, he would smash the table with his fists near your face. I was constantly on edge.”
Charlie admits that growing up feeling worthless and unloved has affected her adult relationships. Lasting effects include an inability to accept praise. Charlie said:
“I was traumatised and had a lot of nightmares. If I got close to somebody, it would trigger a feeling of a lack of safety and stability.”
She said that her situation was a factor in her being sexually abused by her former running coach in her teens, and added that,
“People like that coach are predators who prey on vulnerable people for the power. It was easy to have power over me.”
I wish I could say that Charlie’s case was an unusual one in which domestic abuse in childhood had not laid in step the trap of both domestic abuse and sexual violence and exploitation in adulthood.
Nickie Aiken
I am delighted to hear that the Minister is certainly in listening mode. Having heard from the hon. Member for Blaydon that the Minister met with children’s charities on Friday, it is clear that she is in listening mode.
I would like to make the point that there is a lack in the role that local authorities should be playing under the Children Act, which I mentioned earlier. I led a council and was the children’s services lead at a time— 2010 onwards—when it got quite difficult. We were innovative and put children first. That was responded to by Ofsted, which awarded Westminster City Council the outstanding grade in children’s services. Again, last year, that was repeated—the first time any local authority had received an improved Ofsted outstanding grade. That was a brilliant example of how social workers and children’s services experts put the child at the forefront of all that they do.
Domestic abuse runs through so much, as we have heard today. Having launched the first ever domestic abuse strategy for Westminster back in 2012, I know that we put children at the heart of that.
Peter Kyle
The hon. Lady cited the example of Ofsted, which I think is a good example, because schools have a legal duty to improve; if they do not, Ofsted has the power to intervene. She is not making the case that it is important for children to have a legal footing in the Bill. Does she see the similarities in the argument, and is she open to the idea that it might be worth exploring the concept of having a statutory definition of children in the Bill?
Nickie Aiken
I think it is down to the Minister to decide that, but, as I said, from the commissioner’s point of view, it is important to encourage and to be part of the whole system. There is a lack in the involvement of local authorities, which already exists.
Having sat on the CAFCASS board for several years, as I said earlier, I was appalled when we had a briefing from experts who had been sent to Birmingham City Council to do the quality assurance, because the council was letting down its children. What I took away from the briefing, and what I have taken away from the evidence we heard last week, is that local politicians have to play a part and ensure that they put their children at the heart of their children’s services strategy. There is still a lack of that approach. In Rotherham, for example, where were the local politicians holding their services to account?
Victoria Atkins
Very much so. May I postpone my answer until we debate the amendment that the hon. Lady has tabled on Welsh devolution, so that I can address the point about clause 11? We are aware that good work is going on in Wales on domestic abuse through the devolved authorities. Where matters are devolved, we have the “jagged edge”, as she describes it: some areas in Wales are devolved and some are not. It is perhaps a little clearer cut in Scotland, but we are clear that we want to work with our Welsh colleagues, and I hope that the commissioner gave reassurance last week. I think I am right in saying that the Home Office has helped to fund the work on adverse childhood experiences has been conducted by the South Wales Police. We see that as a really important piece of work with the police and crime commissioner in South Wales, and we hope that it will help the rest of the country as the findings are evaluated.
Peter Kyle
Perhaps my intervention will give the Minister’s officials time to get a note to her on the previous question. I realise that this might turn into a sketch from “The Two Ronnies”, with her answering the previous question to mine, but we will deal with that when it arises.
Can the Minister explain why there is a conflict between establishing the rights of a child in the Bill and having it in guidance? From what I have heard so far, I do not understand why we cannot have both.
Victoria Atkins
At the risk of turning into a sketch from “The Two Ronnies”, I am told that we will be consulting Welsh Ministers on the precise point raised by the right hon. Member for Dwyfor Meirionnydd, so I am grateful for that.
In relation to the intervention from the hon. Member for Hove, it is not a question of conflict. I was trying to explain the journey of the Government’s drafting of the definition. I do not wish anyone to think that children have been forgotten or ignored in the course of drafting the Bill. I hope that the references to children that we have scattered through the Bill—clause 66 is a good example—show our thinking on that.
Peter Kyle
Main Page: Peter Kyle (Labour - Hove and Portslade)Department Debates - View all Peter Kyle's debates with the Home Office
Domestic Abuse Bill (Fourth sitting)
Peter Kyle ExcerptsTuesday 9th June 2020
(4 years, 4 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 9 June 2020 - (9 Jun 2020)
Peter Kyle (Hove) (Lab)
The right hon. Lady has touched on a contemporary issue that has been happening throughout this crisis. It gives the Committee the opportunity to express our sincere gratitude to the frontline police officers and other statutory bodies who are doing so much to re-tool themselves during the crisis to ensure that they identify potential victims and people who are in danger of suffering domestic abuse, to offer support in really creative ways. We offer them our thanks. Will she join me in imploring the Minister and the enforcement agencies to learn from the experience that has been gained from this crisis, and to look at ways of putting that learning into live enforcement services, so that when we recover, we do not go back to business as usual, but aspire to do better?
Liz Saville Roberts
I am grateful to the hon. Gentleman for that intervention. In the legislation, the considerations will be about how to apply that and how to do so consistently. The training that is available for police officers and other support bodies will be critical. At this time, I beg that we make the legislation as future-proof as possible, because we have experienced something that is different to how the Bill was drafted. We must consider that now; we do not want to be playing catch-up.
To come back to my point, although I entirely understand that there is a debate between what we mean by the location of the abuse—in the household—and relationship abuse, we have found ourselves in our households far more.
Liz Saville Roberts
I appreciate the Minister’s response. I am slightly concerned about the fact that she talked about one man with a number of relationships with different people, and then a relationship that is over. There is something slightly contradictory about that.
Because of the times in which we are living through, our awareness of the impact of domestic abuse and the misery caused by it, and the awareness of our police forces, will have changed since this Bill was originally drafted. I therefore leave the Minister with a sincere plea to be alert to the fact that we need to learn on our feet very quickly.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 ordered to stand part of the Bill.
Clause 3
Appointment of Commissioner
Question proposed, That the clause stand part of the Bill.
Peter Kyle
It is a privilege and honour to serve under your chairship, Ms Buck. This is the first time I have served under you, and it is an experience I am looking forward to. I have heard you are a very tough taskmaster.
I also pay tribute to the two Ministers present, who I know both want to make this the best legislation it can possibly be. I have worked with both Ministers in other areas, particularly the safeguarding Minister, the hon. Member for Louth and Horncastle. She might not remember this, but the very first Bill Committee I sat on was one for which she was on the Back Benches: it was the Public Bill Committee on the Investigatory Powers Bill in 2015-16, so I am familiar with being in a room full of lawyers and people with legal backgrounds when considering these kinds of Bills. At that time, the hon. Lady and I were both on the Back Benches, and if I remember rightly she was the first of the 2015 intake to go to into Government. Here we are again on a Bill Committee together, both as Front Benchers, which is an honour for both of us.
Jess Phillips
I am not sure whether my hon. Friend was going to come on to this, but exactly the same thing happened when the chair of the Equality and Human Rights Commission was selected. Both the Joint Committee on Human Rights and the Women and Equalities Committee put in complaints that were nothing to do with his character or his abilities, but specifically to do with his running Government contracts. That was completely ignored by the Secretary of State, and I am afraid to say that that conflict of interest has been used by people who are potentially under question from the EHRC at the moment to suggest that the commission is in some way compromised. This has an effect on people’s ability to do the job.
Peter Kyle
I am grateful for that additional example. I am very aware of the case study that my hon. Friend refers to, even though I was not going to bring it into my few words. It illustrates an incredibly important point: having the support of Parliament is an empowering force behind any public appointment. Furthermore, it offers increased credibility. It starts with a commissioner having the respect of—and a functional relationship with—not just the Government who made the appointment, but Parliament.
In our system of democracy, we take very seriously the relationship between Government and Parliament. Parliament will play a part in scrutinising, so if it has a hand in appointing, there is buy-in from the start. It really is a win-win for Parliament to be involved via the Select Committees.
The appointment has already gone ahead, and I do not think that anybody would say that Nicole is either not qualified for the job or not a welcome appointment to it—but this is certainly something that we need to think about for the future. In my earlier example, it is very clear that even though the public appointment went ahead and had the backing of Government and Ministers, the role has never lived to up to the expectations that were set for it when it was first created. I implore Ministers not just to submit future commissioner appointments to an appointment hearing with the Home Affairs Committee, but to give the Committee the power of veto.
I realise that giving power away is not in the DNA of the Home Office. It is not the normal trajectory that we see from Home Office Ministers, but there are times when giving power away is a very empowering act that leads to a much more functional relationship between Government and Parliament, Parliament and the appointee, and the appointee and Government.
The Home Office has already appointed the commissioner, and it is worth putting it on the record at this point that the Joint Committee on the Draft Domestic Abuse Bill, which scrutinised the previous and similar legislation to that which we are examining today, was not happy that that happened. It said, in paragraph 287 of its report, that
“we were surprised to learn that the process of recruiting a designate Commissioner had almost been completed before Parliament had had any opportunity to consider—still less to recommend any changes to—the draft Bill setting out proposals for the Commissioner’s remit and powers… We consider this unsatisfactory.”
I agree, and I suspect many Members in this room agree. They are free to do so, because there will not be a vote at the end of our discussion on this clause.
We all appreciate the enthusiasm of Ministers and the Home Office to get this appointment out the door, but I have to say that, even though we agree with and celebrate the appointment of Nicole Jacobs, the Minister and Government got away with it this time. Had that appointment not had the backing of the sector and of Parliament, it would be very hard to establish the credibility that this role needs within the sector.
I hope that my words will have made an impression. We purposefully did not put down an amendment to this clause, because we did not want to press this point, but we do want to impress it on people in the strongest possible terms that the joint relationship between Parliament and Government in making the appointment in future is something that will tangibly strengthen the role.
Victoria Atkins
I thank the hon. Gentleman for his constructive and considered comments on this matter. I thank him also for reminding me of the Investigatory Powers Bill, proceedings on which, it is fair to say, were more fiery than those on this Bill.
I very much take on board what the hon. Gentleman says, in that we have always been very conscious that the commissioner must have access to Parliament and must be accountable to Parliament in the sense of laying annual reports. Indeed, we have made it—I suspect that we will come on to this in a little while—their responsibility as a commissioner to lay their annual report before Parliament. They, not the Secretary of State, will lay it, decide when it is laid and so on. We have been very careful to ensure that.
Going back, I appreciate the point that the hon. Gentleman raised about the Joint Committee. I will explain the reason why we appointed the designate domestic abuse commissioner. I personally interviewed a number of impressive candidates for that role, and there were a couple of reasons why we wanted to appoint the designate domestic abuse commissioner.
First, we knew that the legislation would take time to get through the House and we felt that the commissioner could start the groundwork without their statutory powers, because of course the statutory powers are in the Bill. There was groundwork that she could start with—for example, setting up her office, building relationships and beginning to work out where there were particular areas of work that she wanted to focus on. That could all start, and I have personally found the designate commissioner’s assistance, over the last couple of months in particular, absolutely vital, because she has been key in drawing together the charities that are working on the frontline in the covid-19 crisis. She has a Monday call—she referred to it in her evidence and was kind enough to invite me to attend one of the calls—where she speaks to the sector across the country. She then processes that information and data for the Government, so that we are able to formulate policies to help in the very time-sensitive manner that we have been able to. I really value her contribution.
The commissioner will, of course, be accountable to Parliament through Select Committees, as the hon. Gentleman said. I certainly expect the Home Affairs Committee to call her, and the Justice Committee may choose to call her too, so there will be accountability.
Peter Kyle
I am very grateful to the Minister for her tone and the content of her words. What will she do if one of those Select Committees refuses to endorse a candidate that she puts forward? That is the key question. What will she do if it does so, after having a considered set of deliberations, based on sincere and non-partisan evidence? How would she react to that?
Victoria Atkins
Let us take a step back, because I would not want the hon. Gentleman to think that we appointed the designate commissioner on a whim. There is a very careful and methodical appointments process. He can imagine the scrutiny carried out by the legal advisers in the Home Office, the Cabinet Office and elsewhere, who pay attention to how we conduct these appointment processes. It is the same for other commissioners. I also have responsibility for the Independent Anti-Slavery Commissioner, and I do not think anyone would claim that Dame Sara Thornton is not independent and is not an extremely powerful voice in tackling the world of modern slavery. We have careful and methodical appointment processes. I am confident in the two appointments that I have been involved in, and I hope that we have weeded out the sorts of concerns that he is flagging. Once the appointment is made and the Bill is passed, if substantial changes are not made to it, we expect to be able to follow that through.
Peter Kyle
The Minister is being very generous and warm-hearted. I am not sure how she will be in a few days, but for now I fully embrace her generosity. What is the point of a Select Committee scrutinising somebody’s record and background, with a view to a public appointment, if it does not have any power over whether the appointment can go ahead afterwards? Would its time not be best spent doing something else if its conclusions mean nothing when it comes to the final decision?
Victoria Atkins
I again come back to the responsibility of the Minister making the appointment. It is a real responsibility; it is certainly something that weighed heavily on my shoulders. I am conscious that if we miss what we are trying to achieve with the appointment, that will have an impact on not just the commissioner, but the Minister and the Department. Just as the commissioner is accountable to Select Committees, so too are Ministers. Given that we follow the public appointments process, I am satisfied that we will recruit the right person for that role and equivalent roles.
I take the hon. Gentleman’s point, but I draw his attention to the drafting of clause 3. Subsection (3) is there to ensure that the commissioner is not regarded as a servant or agent of the Crown. We say that that supports their independence. I suspect that that will be a feature of amendments to come. With the appointment, we have wanted to ensure that the commissioner is able to start using her statutory powers when the Bill receives Royal Assent. The Committee has already heard reference to the mapping exercise of community-based services that the commissioner will undertake once she has her powers under clause 8. That is something that we have sought her help on, and we very much look forward to her assistance on that.
We want the commissioner to be a powerful voice; we want her to stand up for the victims of domestic abuse and hold public authorities to account where necessary, as is set out in clause 14. I am pleased that the designate commissioner has been welcomed by those working on the frontline, and people who are perhaps not so involved in the day-to-day concerns about domestic abuse can see that she is an expert appointment. She has more than 20 years’ experience, and she is bringing her expertise and drive to this crucial role.
Peter Kyle
The Minister has mentioned the designate commissioner’s experience and suitability for the job a number of times. I would never want to give the impression that I do not agree with the designate commissioner’s suitability for the job, and it is very important for the sector, in the absence of an appointment based on legislation and on parliamentary scrutiny and hearings, to hear the cross-party support for the designate commissioner. I hope that the Minister will accept our support for her as well when she makes her remarks.
Victoria Atkins
I do not think that anyone read into the hon. Gentleman’s constructive comments about this appointment anything other than that he was doing his job of scrutinising the wording of the Bill, and I am pleased that the designate commissioner has managed to gain such support in such a short period of time.
I commend the clause to the Committee.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clause 4
Funding
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
I appreciate that this debate has been probing clause 4 and the resources available to the commissioner. We have provided the commissioner with an overall annual budget of over £1 million, which, among other things, will provide for 10 to12 staff to support the commissioner in carrying out her functions. In addition to the money from the Home Office, under clause 8(3) we have given the commissioner the power to charge a person—and when we say “person”, we are not talking about an individual but an authority or an organisation—for providing them with advice or assistance under subsection (2). We appreciate that exercises such as mapping community-based services will take a great deal of staff time and resources: it will take relationships across the country.
On the subject of mapping, I remember that just after I was appointed, two and a half years ago, my officials had done a very quick and dirty analysis of community-based services in a particular county—I will not name the county. They had found that there were something like 80 charities in one county who were working to help victims of domestic abuse. They ranged from the largest, national-type charities to the sort of charities where it is my great privilege to meet and discuss their work with their founders, who perhaps have set up a charity to commemorate a loved one who has been killed by a partner, for example. In their individual ways these charities work sometimes at a very local level to provide services. I wish that trying to map that was as easy as one would like it to be, but it is a difficult task, which is why we are asking the commissioner to do that for us. That is not because she is going to be in charge of policy creation but because, with the powers she will have under the Bill, the commissioner will be able to request that information from the public authority, as set out in the Bill. Then she will be able to produce advice and a report.
That touches on the point that the hon. Member for Birmingham, Yardley raised earlier about the meaning of the word “encourage”, and I apologise for not responding to it sooner. We believe that clause 14 is very powerful when read in conjunction with clauses 13 and 15. Clause 14 sets out the powers to request information and assistance from public authorities. Clause 15 sets out the requirement that the public authority must respond within 56 days to the report or the analysis by the commissioner. They report not just to the commissioner, but to the Secretary of State. I do not want to cast aspersions on any particular type of public authority; the public authorities mentioned in clause 14 include nationally known organisations as well as local councils and authorities. If there is a report by the commissioner condemning the conduct of one of those public authorities, and the authority has to respond within 56 days, that is quite a powerful tool for the commissioner. As we have already discussed, the commissioner is also required to lay annual reports before Parliament. It may well be that, as part of her general functions under clause 6, she will want to express her views on the conduct of public authorities in her annual report. Again, I do not want to direct her—she is independent—but this is a way to keep the commissioner and public authorities accountable.
On funding, we know that being in Government is about making tough choices. We have funding for the Home Office to be allocated across a whole host of deserving causes, including policing, counter-terrorism and maintaining a fair and effective immigration system. The budget we have set aside for the domestic abuse commissioner is what we have allocated. In setting that budget, we have looked at the budgets of other commissioners to ensure that it compares favourably, which it does. We will keep the budget under review, and the commissioner will discuss with the Secretary of State her budgetary needs for the forthcoming year. We have provided the commissioner with the available resources, because we want her to be able to fulfil her functions as set out in clause 6. It is not about attributing blame, but about trying to ensure that this new, powerful appointment will help us tackle domestic abuse and that, at both national and local levels, we can utilise what she will bring with her laser-like focus on domestic abuse. Her power and authority flow from clause 6, and I hope we will see real differences—not just nationally but in our constituencies over time, as public authorities realise that they are accountable not just to the public, but to the commissioner.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Clause 5
Staff etc
Question proposed, That the clause stand part of the Bill.
Peter Kyle
I just want to say a few words about the clause. Again, the Opposition do not oppose it or seek to amend it, but we want to ensure that we get it right. I accept the Minister’s previous comments on clause 4, and I was really pleased that she mentioned the role of the voluntary sector and did so in a way that reflected the complex tapestry of the voluntary sector. The fact that there might be many dozens of organisations— perhaps 80-odd—working in one area is something that I am very familiar with, having worked in the voluntary sector previously.
Duplication is a challenge that I faced when I ran the Association of Chief Executives of Voluntary Organisations, the umbrella body that co-ordinated the work of the voluntary sector. We did a lot of work on duplication and on trying to get third-sector organisations to work together and to share expertise and resources. That is more essential now than it ever has been, but it is not a problem that affects just the voluntary sector. I also had the pleasure of being an adviser in the Cabinet Office for almost two years, in 2006 and 2007. When we did one of our what seemed like annual reviews on waste and duplication in the civil service, we found that two committees in the Department for Education were looking at duplication. Just when someone thinks they have seen it all in one sector, they move to another and look beneath another rock.
However, these are important things to bring into our deliberations on clause 5. Clause 5 essentially gives the Secretary of State the power to appoint staff for the commissioner and to appoint the resources for it, and therefore gives the Secretary of State quite considerable oversight and input into the effectiveness of the personnel, or the commissioner, with regards to their ability to work and to be productive, directly impacting the scale of work that they can undertake.
Clause 5(1) states:
“The Secretary of State must provide the Commissioner with—
(a) such staff, and
(b) such accommodation, equipment and other facilities,
as the Secretary of State considers necessary for the carrying out of the Commissioner’s functions.”
The key thing here is what
“the Secretary of State considers”,
not what an independent observer or what the commissioner herself considers appropriate for the job. There are two aspects to this: how resources are deemed appropriate in the first place, and whether that is done in conjunction with the commissioner, which I assume it would be in a functional relationship; the Minister is nodding, which is reassuring. However, it is also to do with the appointments themselves, because the Home Office retains the power to oversee and involve itself in some aspect of the recruitment.
My hon. Friend the Member for Birmingham, Yardley mentioned the former independent anti-slavery commissioner. He gave stark evidence before the Joint Committee, which it is worth referring back to, because this is what we have to avoid going forward. It certainly shines a light on what is potentially within the scope of the Bill as drafted. On page 77, paragraph 298 of the Joint Committee’s report says:
“Kevin Hyland told us he was concerned that the Secretary of State would have too much control of the Commissioner’s budget—
referring to the commissioner for domestic abuse—
“the staff employed and the content of the Commissioner’s reports. He pointed particularly to the power wielded by the Secretary of State through control of the Commissioner’s budget, noting that immediately he took up his post, the Home Office had proposed a reduction in the funds that Parliament had been told he would be given.”
Immediately after that commissioner was appointed, the Home Secretary tried to reduce the funds that Parliament had informed him he would have. These powers for the Home Secretary all exist in the Bill as it stands before us.
The bottom half of that same paragraph says
“he described the process of appointment as ‘unbelievable’, adding: ‘Sometimes I would select staff, and seven months later they had not arrived, or when they did arrive they sometimes waited two or three months for pay. In my 30 years in the police, I never, ever saw that happen once.’ He also described his experience of producing reports which, because they had to be approved by the Secretary of State, had to go through a long process of negotiation with and modification by a number of officials, with the final report not fully representing his views.”
We will come back to the latter point in discussions on future clauses. He raises in his testimony something on which we really need assurance from the Minister. The wording of the Bill as it stands is
“as the Secretary of State considers necessary”.
Therefore, the power is with the Secretary of State, the timing is with the Secretary of State and the amount of resource is with the Secretary of State.
Victoria Atkins
I hope the hon. Gentleman will forgive me if I do not accept his premise in relation to the independent anti-slavery commissioner. I am happy to say that I have a good working relationship with the current commissioner—I think it is good, anyway—and I am not aware of concerns as described by Mr Hyland in relation to the current commissioner. I take that relationship very seriously.
On the control of the Home Secretary in the clause, as the hon. Gentleman put it, I point him to subsection (2) which says:
“Before providing any staff, the Secretary of State must…consult the Commissioner, and obtain the Commissioner’s approval as to the persons to be provided as staff.”
In other words, the appointments cannot happen without the commissioner’s approval. The Secretary of State must also consult the commissioner before providing any accommodation, equipment or other facilities.
Let us be clear: the commissioner is an independent office holder. Ministers cannot and will not dictate their work plan, nor determine their recommendations. We expect the commissioner to provide robust and challenging advice and recommendations to national Government as well as local commissioners. However, we need a degree of ministerial oversight, as with all public bodies.
Peter Kyle
The Minister says that the Home Office does not have the power to direct workflow, but the Home Office does set the framework, and that does dictate the scope and scale of work undertaken. Does she therefore agree that the Home Office has significant input into what work is undertaken?
Victoria Atkins
The draft framework document we published alongside the Bill for colleagues to look at was produced in conjunction with and agreed with the commissioner. Therefore, some of the details we have discussed thus far on this part of the Bill are in the framework document. It is a public document—we are trying to be transparent—and it is made with the agreement of the commissioner, which I think is really important. The reason there has to be a degree of ministerial oversight is so that, for example, we ensure that public money is spent according to Treasury principles. The relationship between the Department and the commissioner will be codified in the framework document as provided for by clause 10.
In terms of the employment of staff, although staff will be employed by the Home Office as civil servants, the Bill, as I say, expressly provides that individual appointments must be approved by the commissioner.
I am pleased to say that the commissioner already has one member of staff as a designate commissioner. Her statutory powers are not yet in force, because we await the passage of the Bill, and the recruitment process will continue as the powers are approved.
It is very much for the commissioner to run her own office. We want a good working relationship with the commissioner. It is in everyone’s interests. That is the basis on which I and, I know, the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham, conduct our relationships with, for example, the Victims’ Commissioner, in the case of my hon. Friend, and the commissioners for domestic abuse and modern slavery, in my case.
Peter Kyle
Just to clarify, the arrangement is the same as was described by the previous modern slavery commissioner. The Home Office does not select the individual staff, but internal Home Office recruitment processes might well play a part if it is a matter of secondment, or if there are other processes that need to go through the channels of the Home Office. I am not one of those people who bash the public sector—I think we see excellence in recruitment, human resources and the management of personnel in the public sector—but sometimes things can be slow, and the purpose of an independent commissioner is to bring expertise and entrepreneurialism—the approach from outside—into the heart of Government. Will the Minister assure us that that pace and speed will be matched by Home Office work when it comes to requests by the commissioner?
The Chair
Order. Interventions need to be short. I do not want to be too heavy about it, but I will be if I have to.
Victoria Atkins
That is a very good point, and I am sure that I will have an answer to it very soon. My hon. Friend has highlighted what we have also tried to achieve in the Bill, which is to respect the devolution settlements we have with Scotland, Wales and Northern Ireland. Colleagues will know that the second iteration of the Bill had substantial parts dedicated to ensuring that victims of domestic abuse in Northern Ireland had the same protections as we have in England and Wales, but now that the Northern Ireland Assembly has been reinstituted, it has taken back responsibility and can deal with these issues in Northern Ireland, which is great news. I wish them Godspeed.
I draw my hon. Friend’s attention to the incidental powers set out in clause 9, which states:
“The Commissioner may do anything which the Commissioner considers will facilitate, or is incidental or conducive to, the carrying out of the Commissioner’s functions.”
As an aside, the commissioner “may not borrow money”—that is very helpful. I feel that my hon. Friend’s point requires further reflection, and we will do that.
The hon. Member for Birmingham, Yardley is absolutely right to raise the point about sexual violence and rape. She is correct to say that this has been one of those knotty subjects where we have listened to a range of views. It was my great pleasure to almost respond on Second Reading to my hon. Friend the Member for Shipley (Philip Davies), who—I think it is probably fair to say—takes a different approach to the hon. Member for Birmingham, Yardley on this matter. We have endeavoured to ensure the definition is gender-neutral, so that we capture victims regardless of gender, but in the statutory guidance we make it clear that it is a gendered crime, because we think that is an important part of the overall consideration of the legislation.
In terms of working with rape and sexual violence charities, the Victims’ Commissioner has responsibility for that. She is a formidable commissioner and does not hold back from establishing and proving her independence on a regular basis, for which we are most grateful. Taking a step back, the Victims’ Commissioner and designate domestic abuse commissioner clearly have a very good working relationship. They are both highly professional women. With the quality of people we appoint to commissioner roles—although personalities can be really positive and important—I would expect them to behave professionally with each other, and I have very much seen evidence of that. There may well be times when the Victims’ Commissioner and the DA commissioner join forces in drawing the Government’s attention to issues—they have done so in the last couple of months with the covid-19 crisis—and we welcome that. I hope that reassures hon. Members.
In terms of the advisory board—I apologise for the fact that I am jumping around—the advisory board is for the commissioner to appoint. I will step back from giving a suggestion of what she may or may not wish to do with that, because to do so would, I suspect, undermine all my previous arguments. It is for the commissioner to appoint, and she, I am sure, will be watching this line-by-line scrutiny very carefully. I suspect that the other points that the hon. Member for Birmingham, Yardley raised fit more comfortably in our consideration of clause 7 and the amendments attached to it. If I may, I will hold my fire—that does not feel like a terribly consensual way of phrasing it; I will keep my powder dry instead—on that matter.
Question put and agreed to.
Clause 6 accordingly ordered to stand part of the Bill.
Clause 7
Reports
Peter Kyle
I beg to move amendment 43, in clause 7, page 5, line 7, leave out “direct” and insert “request”.
This amendment changes the Bill so that the Secretary of State may request, rather than direct, the Commissioner to omit material from a report.
The Chair
With this it will be convenient to discuss amendment 44, in clause 8, page 5, line 29, leave out “direct” and insert “request”.
This amendment changes the Bill so that the Secretary of State may request, rather than direct, the Commissioner to omit material from any advice.
Peter Kyle
As the Chair said, I will speak to amendments 43 and 44, which relate to clauses 7 and 8. Right hon. and hon. Members will notice that both amendments achieve the same effect: to leave out the word “direct” and insert the word “request”. I do not think the intention of these amendments will come as any surprise. This strikes at the heart of the relationship between the commissioner and Government, and it is about ensuring that the much-vaunted independence of the commissioner, which everybody here accepts is incredibly important, translates into the document before us and into the legislation.
The hon. Member for West Aberdeenshire and Kincardine is welcome to pass me notes at any point in my speech, should he have any comments on it, but I warn him that the Home Office knows where he lives, and we will be looking out for him in his place tomorrow. If he has any other insightful observations, he is very welcome to intervene at any point.
It is incredibly important that this role is functional; it has at its heart a functional relationship between the commissioner and Government, the commissioner and Parliament, and all three involved in overseeing, scrutinising and ensuring that, at the end of the day, policy for domestic abuse is got right. We need to ensure that we get the best out of all three constituent parts of this set of relationships, Parliament, Government and the commissioner.
The most important relationship here is clearly between Government and the commissioner. Time after time, we see words from Government that all of us in this room, and everybody involved on the frontline of supporting victims and survivors of domestic abuse would agree with: the commissioner must be independent. We need to ensure that that aspiration is reflected in the legislation, because ultimately it is the legislation that counts.
It is noticeable throughout clauses 7 and 8, and indeed throughout this part of the Bill, just how much power the Home Office grants itself over the commissioner. That is important, because we cannot have a situation where the commissioner is said to be independent but, when push comes to shove and people have to resort to the law, the law says something different.
Christine Jardine
Does the hon. Gentleman agree that as recently as this week, doubt about whether a review or report that comes before the public has been entirely independent has damaged its impact? I refer to the Public Health England review of coronavirus, public faith in which was undermined by the fact that sections of it had been left out. The word “direct”, rather than “request”, would inevitably lead people to suspect that reports were not entirely independent.
Peter Kyle
I agree with what the hon. Lady says about that incident, because it is the one that is most recent, striking and relevant to the times in which we live. In order to ease the pressure on Ministers in the room, however, I am willing to concede that successive Governments of different persuasions have been guilty of that at various times. We can all think of reports that have become politicised, thereby diminishing the truth they seek to illuminate, their impact, their credibility and the work of the many people who were involved in producing them. It is incredibly important that the public who read such reports have faith in the independence of those who produce them, and know that the reports are free of political interference.
I do not seek to blame anyone, or to say that this is the first Government to have sought to retain power over quasi-independent bodies and institutions. I understand the desire of the Home Office and all Departments to retain power. I simply make the point that, sometimes, relinquishing some power strengthens relationships and leads to better outcomes. That certainly delivers better results to the frontline. Those who are at the receiving end—those who have recourse to the law and to the commissioner—will have more faith in the system and view it as more credible, and will therefore be more likely to use those services.
The Home Office sets the budget, and the Home Office sets the framework. Earlier, the Minister referred to the framework document and pointed to its consultative nature, which I accept. I have in front of me the draft framework document, which states in section 4.11:
“Although not prescribed by the Act, if the Commissioner does not agree with the Home Secretary’s request to omit material, the process will be as follows”—
this comes to the point made by my hon. Friend the Member for Birmingham, Yardley when she talked about what happens if a dispute arises. I accept the Minister’s response, but the draft framework to which she refers states that the commissioner can make representations to the Director of Public Prosecutions—I beg your pardon; I mean public protection. Perhaps that comes further down the line. I will start again. The draft framework states:
“The Commissioner can make representations to the Director for Public Protection as the Senior Policy Sponsor. A response must be provided within 28 working days.”
That is what is available to the commissioner should there be a disagreement and if the Home Secretary makes a direction with which the commissioner disagrees. The draft framework states:
“If agreement is not reached with the Director for Public Protection, the Commissioner may make representations to the Home Secretary. A response must be provided within 28 working days.
If agreement is not reached with the Home Secretary, the Commissioner may include a note in their report (or advice under section 8(2)) stating that certain information was omitted at the direction of the Home Secretary, but which the Commissioner did not agree was necessary to protect an individual’s safety or to support the investigation or prosecution of an offence.”
What the framework document actually refers to is that bit of the Bill that enables the Home Office and the Home Secretary to direct the commissioner.
Peter Kyle
The Minister disagrees and her dissent to my hon. Friend’s comment is on the record. Whether one agrees or disagrees with my hon. Friend, her point is that it is open to interpretation. People in that situation who are observing from the outside could quite reasonably be left with that interpretation. The amendment actually seeks to protect the Home Office from precisely the circumstances to which she refers, because if the independent commissioner publishes advice that is hard for the Home Office to see, that will spark a public debate between the two that would benefit the sector and show that the independent sector has an independent commissioner, and that the Home Office takes a different view. The buck will always stop with the Home Office, and rightly so.
Clause 8(5) states:
“Before publishing any advice given under this section, the Commissioner must send a draft of what is proposed to be published to the Secretary of State.”
We all understand why that would be the case and why the Home Office would be very keen to engage in that, but if there is a functional relationship at the heart of this, we do not need the power of legislation to engage constructively with each other. From the testimony and the evidence that we heard just last week from the designate commissioner for domestic abuse, it is very clear that she is straining at the bit to be open and constructive, and to engage not just with the Home Office, but with Parliament and all other stakeholders. The Home Office does not need the power of legislation to instruct somebody to do the very thing that is at the heart of a functional relationship between two organisations of this nature.
I accept that the Home Office is cautious and that Home Office Ministers are right to be cautious. The Home Office deals with law enforcement and the denial of people’s liberty. That is why the Home Office always has to be very careful with such pieces of legislation, and I know that the two Ministers take incredibly seriously the responsibility and the burden of the decisions that are made in the name of the legislation that they pass and uphold in their work. The inclination to retain as much overall power as possible defeats some of the objectives that the Home Office seeks to achieve. Although it must be an overwhelming temptation—even for understandable reasons—I urge the Home Office to have faith in the people whom it appoints.
Because of the previous conversations and exchanges that we have had, I think that we have had some fascinating exchanges already in the proceedings on the Bill today, and I believe that the Minister has been very sincere in her determination as to the way the commissioner is appointed in future. But this is really important: if we are to take the Minister at her word, why does she need the power in legislation to have the final word all the time? If the person appointed has been through an inscrutable process within the Home Office and if their background is absolutely first rate, why does the Minister need the power always to instruct them, to direct them?
I believe that the person described in the appointment process is the sort of person who does not need to be kept on a tight leash and who would benefit from more freedom in the role. That is the sort of thing we could test in this legislation, and it would then have an impact on future appointments and the creation of other roles. I think that this role would be more fruitful, productive and effective if it were approached in a less paternalistic way.
When Nicole Jacobs’s appointment was announced last September, the Home Office statement heralded the role as one that
“will lead on driving improvements”.
Quite rightly, the designate commissioner’s qualifications to do just that were highlighted, and that speaks for itself. But time and again, the legislation that puts her role on a statutory footing limits the freedom that she has to do just that. Reading it, one would be forgiven for thinking that it is less a statutory footing and more a meddlers’ charter. The Home Secretary has the right to meddle in almost every aspect of the commissioner’s role, from the advice that is given publicly to the reports that are produced. For every aspect of the key work that is done by the “independent” commissioner, the Home Secretary, the Home Office and a plethora of officials at different levels have the right to involve themselves in the way the work is done. I do not think that is in line with what Ministers, in their hearts, really want to happen. I think they are saying that they want to have a certain relationship, but when it comes to defining it in law, they cannot quite bring themselves to put in writing what is in their heads and hearts.
Aspects of part 2 of the Bill give more power to the Home Secretary than to the commissioner herself, and part 2 is designed to create the commissioner. This is really serious: the moment a Home Secretary “directs” the commissioner, the commissioner ceases to be—in the words of the Home Secretary herself, in the statement released on the appointment—
“a voice for those who need it most.”
I say that because if the Home Secretary has changed the words that the independent commissioner uses, they are the words not of the independent commissioner but of the Home Secretary. That is the very moment at which the sector itself will start to lose faith. We will have a sector and victims and survivors losing faith in their voice, their advocate, the person who has the best access to Parliament, to Government and to every Department of Government, not just the Home Office—she has the right, under the Bill, to engage with Departments right across Government. Once faith in that role is gone, it will be very hard to get it back and the ability of the commissioner to advocate, to give voice and to bring about change will be diminished.
I do not believe that is what Ministers want, and I do not believe that is the intent of the legislation. I truly believe that what they want is a commissioner who has the right to act, in the words of the Home Secretary, as
“a voice for those who need it most.”
What we cannot do, as any parent knows—I am not a parent—is tell a child, “You have the right to a voice, but I’ll tell you what to say.” That just does not work. I know that my hon. Friend the Member for Birmingham, Yardley would not even attempt to do such a thing in her household—I have met her children and know that they would see straight through it.
Victoria Atkins
I am going to tackle head-on the criticism about reports, but first I want to make it plain why the reports are so important and to explain how they come about. It is for the commissioner to decide what her reports concern. It is for the commissioner to publish every report that is made under clause 7. It is the commissioner who decides what she will report on. In practice, the reports will flow from the strategic plan set out in clause 12, but it is the commissioner who has that power.
These thematic reports will be an absolutely central part of the commissioner’s work. They will be the key mechanism for discharging the commissioner’s functions under clause 6, and they will identify and publicise good practice but also highlight areas for improvement. I emphasise again that the reports must be published. There is no facility in the Bill for reports to the swept under the carpet or delayed. The commissioner publishes them, not the Home Secretary. A great deal of the commissioner’s power comes from clause 7.
The hon. Gentleman quite rightly raises subsection 4, which states:
“The Secretary of State may direct the Commissioner to omit material from any report under this section before publication if the Secretary of State thinks the publication of that material—
(a) might jeopardise the safety of any person, or
(b) might prejudice the investigation or prosecution of an offence.”
There is nothing in subsection 4 that says, “Oh well, if the report makes the Government look bad, the Home Secretary can omit that.” There is nothing that says, “It’s not terribly helpful, and the timing is bad.” There are two very narrow grounds: jeopardising the safety of any person; and prejudicing the investigation or prosecution of an offence. Because we are so careful about the commissioner’s independence, we have taken the trouble in the draft framework document—the draft document drawn up in consultation with and approved by the commissioner—to try to set out a framework. Therefore, in the—I accept—diminishingly small possibility that the subsection will be used, there is a clear process as to how such disagreements can be resolved.
The ultimate sanction is not, I think, the Home Secretary redacting a name, a location or whatever is needed to protect the person named in the report; it is the last paragraph of the framework document, which says:
“If agreement is not reached with the Home Secretary, the Commissioner may include a note in their report…stating that certain information was omitted at the direction of the Home Secretary, but which the Commissioner did not agree was necessary to protect an individual’s safety or to support the investigation or prosecution of an offence.”
I do not want to speculate about how such circumstances may arise, but I am clear that if a report had a note like that in it, I would expect to be answering an urgent question on it the very next day.
Peter Kyle
The Minister comes right to the heart of the matter, as she characteristically does. However, when she was having debates and discussions with officials and colleagues about how to approach this part of the Bill, why was it decided that the final say should stay with the Home Secretary, with the commissioner needing to publish a note saying that she disagrees, rather than the other way round, with the independent commissioner able to publish what she likes while the Home Secretary publishes a little paragraph pointing out the bit that she did not agree with?
Victoria Atkins
It comes down to accountability at the Dispatch Box. As I say, there is a diminishingly small likelihood of that happening, but that does not mean that we can ignore it. I speak as someone who used to prosecute serious organised crime and spent a great deal of my career as disclosure counsel redacting documents and asking for protection from courts for documents that may, or have the potential to, undermine and jeopardise the safety of people for a variety of reasons, so this is something close to my heart. The power to omit this very narrowly constructed category of information is there to protect a person or to protect the prosecution or investigation of an offence. Accountability for that must fall ultimately on the Home Secretary or the Minister at the Dispatch Box.
I will give an example. I have tried not to speculate, because we all know, particularly in this field, that the ability of human beings to commit harm and to hurt other human beings seems almost infinite at times. Apologies that I cannot give details; I am treading very carefully for reasons that will become clear. A little while ago I was alerted to a mother and her family who had had to flee a house where there was a violently abusive relationship—she was fleeing in fear of her life. The circumstances of her fleeing were, shall we say, notorious in the local community, because the wider family have a reputation and presence in the local community that reaches far beyond the Bill. A person in public life inadvertently, for completely innocent reasons, made a comment about the manner in which that family fled. The concern—it was a very real concern—was that that public official, who had not really understood the ramifications of their commentary, had inadvertently put that victim and her family at significant risk.
Forgive me; I cannot go into more detail because I do not want to alert, but I put that forward because there are occasions where we have to look at not just the immediate circumstances but the possible ever-flowing ramifications that may result from a seemingly innocent assertion. I have complete faith in the designate domestic abuse commissioner that we will not get to a place where we are having to put notes in reports. I have to maintain this very narrowly constructed caveat to this otherwise wide-ranging and free power to safeguard any people or to safeguard investigations or prosecutions for offences that may not be immediately apparent when looking at the very specific circumstances of a case.
To give reassurance as well, I have asked whether this provision is in other pieces of legislation. It is in the Modern Slavery Act 2015 and indeed, it is wider there because the Home Secretary can also omit material for the purposes of national security. If one thinks about modern slavery, that makes sense because of international criminal gangs. I reassure the Committee that this provision exists in other legislation, it is very narrowly defined there and it is not about making the Government look bad or look good. It is about safeguarding people’s safety.
Victoria Atkins
The hon. Lady does not just need my reassurance. We have this framework—I appreciate it is a slightly tortuous process—where a very senior civil servant makes the first decision. It then goes to the Home Secretary and we then have the commissioner with the ability to put that note in the report. We have the reassurance of a very senior civil servant, with all the responsibilities the civil service bear in relation to ensuring they act within the Nolan principles and so on. We have that safeguard. We then have the Home Secretary, who has their own responsibilities under the ministerial code and being at the Dispatch Box, and then we have the commissioner being able to put that in her report. I hope that reassures hon. Members about this aspect of the report and clause 8. I invite the hon. Member for Hove to withdraw his amendment.
Peter Kyle
I am grateful to the Minister for her explanation. I will withdraw the amendment.
The Minister will note from the theme of the comments I have been making during the two sittings today that my Front-Bench colleagues and I are concerned not only by the specific parts of the Bill that give power to interfere with the commissioner’s work. Added up, there is the opportunity to make the commissioner’s work overly bureaucratic, slow and sometimes focused too much towards pleasing the paymaster and not enough towards serving the victims and survivors, for whom the commissioner exists to give voice. This was a good possibility to ventilate those in a focused way, but I hope the Minister realises that we feel strongly about the independence of the commissioner. We will talk about this more later, on other amendments on aspects of the commissioner’s independence.
I hope the Minister recognises the strength of feeling towards a hands-off approach. There was a period in Parliament when there was a very rapid turnaround in Ministers on the Front Bench. Time after time we heard, “I don’t want this to happen; my intention isn’t this.” Then three weeks later another Minister with another direction would say, “No, I am really focused on this.” That is why getting the letter of the law right is necessary, and why we need the Bill absolutely nailed down.
Peter Kyle
Main Page: Peter Kyle (Labour - Hove and Portslade)Department Debates - View all Peter Kyle's debates with the Home Office
Domestic Abuse Bill (Fifth sitting)
Peter Kyle ExcerptsWednesday 10th June 2020
(4 years, 4 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 10 June 2020 - (10 Jun 2020)
The Chair
I have a few opening remarks. For the benefit of the shadow Minister, we are definitely stopping for lunch. This sitting will run until 11.25 am, so that Members can get to the main Chamber by the time it sits, if they so wish. Please turn your electronic devices on silent. Hot drinks are not allowed during sittings. Social distancing is exceptionally important, so please maintain it. If anyone is unhappy about the social distancing arrangements, they should let me know—we take it very seriously. Obviously, you cannot hand notes to Hansard now, so please email electronic copies of any speaking notes to hansardnotes@parliament.uk.
Clauses 11 and 12 ordered to stand part of the Bill.
Clause 13
Annual reports
Peter Kyle (Hove) (Lab)
I beg to move amendment 45, in clause 13, page 8, line 16, leave out from “must” to “on” and insert “report annually to Parliament”.
This amendment changes the requirement for the Commissioner to submit an annual report to the Secretary of State to a requirement to report annually to Parliament.
The Chair
With this it will be convenient to discuss amendment 46, in clause 13, page 8, line 25, leave out subsections (3) to (5) and insert—
“(3) The Commissioner must arrange for a copy of every annual report under this section to be laid before Parliament.
(4) Before laying the report before Parliament, the Commissioner must ensure that no material is included in the report which—
(a) might jeopardise the safety of any person, or
(b) might prejudice the investigation or prosecution of an offence.
(5) The Commissioner must provide a copy of the report to the Secretary of State.”.
This amendment is linked to Amendment 45.
Peter Kyle
It is an absolute pleasure to serve under your chairmanship, Mr Bone. I do not know about you, but I like to start every day with a quote from an inspirational political figure, and I thought today there could be no better inspirational political figure than the Minister for safeguarding. On 18 September 2019, the Minister said:
“The focus of the Commissioner will be to stand up for victims and survivors, raise public awareness and hold both agencies and government to account in tackling domestic abuse.”
That is key: to hold Government to account. The most important Government Department that the commissioner needs to hold to account will be the Home Office.
Yesterday we explored the independence and importance of the commissioner. I will not go over all the arguments made yesterday, as we want to make some progress today, but we established that it is absolutely essential. For the commissioner to be successful in the role, she will need a degree of independence from the Home Office. Amendments 45 and 46 would deliver the independence that she will need.
The Minister is right that the role of the commissioner is to hold Government to account. An essential part of the commissioner’s role is to advise, support and inform, and at times to challenge. Nothing must stand in the way of her being able to perform that challenge. Holding to account sometimes involves disagreeing. Sometimes it involves saying publicly, “I believe they are wrong,” or, “I believe they should be doing things differently.”
We need the commissioner to be 100% focused on giving a voice to victims and survivors, and that is not possible if they are worried about the reaction of the people paying their wages. That is true for any other organisation up and down the country, and it is true for this appointment as well. The thing that makes the biggest difference to a survivor’s life is the way that public services respond to their needs.
Most of the commissioner’s time will be spent trying to improve and change things. By definition, improvement is change, so the role of the commissioner will be to change Home Office policy. The vast majority of that change must come from the Home Office. Yet the Home Office pays the bills, sets the budget, hires or fires the commissioner and sets the framework. The Home Secretary is, in essence, the commissioner’s line manager, and even gets to mark her homework.
The Minister has drawn the Committee’s attention to the exhaustive prelegislative process that the Bill has been subjected to, and it is true that the Bill is one of the most heavily scrutinised pieces of legislation—even before arriving in the House—of any in recent years. However, what if every part of that exhaustive process comes to the same conclusion—as, when it comes to the Home Office, it has? If every part of prelegislative scrutiny results in saying the same thing but the Home Office does the exact opposite, we must ask ourselves what the point of all the prelegislative scrutiny was.
As I have said, the commissioner is popular—everyone wants a piece of the commissioner. Everyone wants her to report to them or to someone else. The Home Affairs Committee wants her to report to Parliament. The Joint Committee on the Draft Domestic Abuse Bill wants her to report to the Cabinet Office. However, they all have one thing in common: none of them thinks that it is appropriate for her to report to the Home Office.
That can be seen in the prelegislative scrutiny. I will quote from paragraph 306 of the Joint Committee’s report. It mentions two names: Emily Frith, who worked for the Children’s Commissioner, and Kevin Hyland, the former Independent Anti-Slavery Commissioner. It states:
“Emily Frith noted that the Children’s Commissioner had to send draft reports to the Secretary of State for Education before publication, and that the Secretary of State had to approve its annual strategic plan. She stated, ‘We would like to see both those things removed, because that would give the commissioner much more independence to report directly to Parliament.’”
That was with reference to the domestic abuse commissioner. The report continues:
“Kevin Hyland told us that, during his reappointment, he was criticised for giving evidence to a parliamentary committee. He suggested that, if the Commissioner were to be responsible to a parliamentary committee rather than a government department, then they would be able to express concerns more openly.”
Paragraph 307 states:
“In its report on domestic abuse, the Home Affairs Committee recommended that the Commissioner be accountable, and report directly, to Parliament rather than to Government, and should be independently accommodated and resourced.”
The safeguarding Minister drew the Committee’s attention to the process, and it is incumbent on us to heed the Joint Committee’s advice. It did not mince its words, and concluded, in paragraph 323, that it had
“grave concerns about the proposal for the Commissioner’s role to be responsible to the Home Office.”
It recommended in paragraph 324
“that the Commissioner be responsible to the Cabinet Office”.
The Opposition—[Interruption.] I reassure the Committee that my cough is the result of the London plane trees outside Parliament, not anything else that might be making its way around the city. [Laughter.] I am well protected by the Brighton Gin hand sanitiser that sits before me.
The Opposition accept the clear advice of both parliamentary inquiries, which involved both Houses of Parliament, and their exhaustive deliberations. Since those inquiries completed, Britain has left the European Union and the Cabinet Office is consumed—some might say overwhelmed—by the challenges posed by the negotiations and preparations for our future relationship. It is unlikely that a domestic abuse commissioner would find a suitable home there right now, bearing in mind that the Joint Committee reported almost two years ago.
We accept the clear recommendation of the Home Affairs Committee that for matters of substance the commissioner should report directly to Parliament. I feel certain that if the Joint Committee were reporting today, rather than two years ago, it would totally agree.
Amendment 45 and 46 are straightforward. Amendment 45 would simply exchange “Secretary of State” for “Parliament” for the submission of the commissioner’s annual report. Amendment 46 achieves a similar outcome but has regard to a concern raised by the Minister yesterday, by requiring the commissioner by law to ensure that no material be included that might jeopardise the safety of anyone or prejudice an investigation or prosecution.
These amendments refer to the annual report. We do not cover all the different areas of reporting. These amendments are intended to probe the issue of accountability and independence and will not be pressed to a vote. We urge Ministers to look afresh at the conclusions of pre-legislative Committees and, if they are in a generous mood, to ensure that we can argue for the amendments, engage with them as they stand and keep an open mind as to whether the role of the commissioner could be strengthened, delivering an outcome that I believe would put it in a much safer, stronger and more secure position, to enable the commissioner to do their job. My God, the people whom the commissioner seeks to give a voice to need the strongest possible voice that we can muster.
There is one final aspect of the relationship between the Home Office and the commissioner that I want to raise. I do this carefully and with respect to all hon. Members, because I know that when we talk about individuals it is a sensitive issue. I do not want to squander the constructive nature of our deliberations so far, but I believe that this is relevant and important. This relates to the nature of the Home Secretary and issues raised about her own personal behaviour in recent times.
At this time there are two separate formal processes underway that involve multiple allegations of abusive behaviour by the Home Secretary: one is an internal civil service inquiry being conducted by the Cabinet Office; and the other is a legal tribunal by the Home Office’s former most senior official for constructive dismissal. Both are ongoing and I will say nothing that will prejudice either inquiry.
The Chair
Order. I liked the part where you said that you will say nothing on this issue, because I am not really sure what the relevance is to amendment 45 to clause 13.
Peter Kyle
Mr Bone, I would like to explain. We are talking about the establishment of a commissioner for abuse, reporting directly to the Home Secretary. The amendment seeks to change the line management of the commissioner. I believe I am treading lightly as I progress through this. I think it will become apparent why I want to put this on the record.
As I say, we will not push the amendment to a vote, but there are arguments here that I believe need to be made. Many people who have contacted me are aware of the irony of having a commissioner for abuse reporting to somebody who has two active investigations into abusive behaviour. I will tread lightly.
The Chair
Order. I am afraid that you will not tread lightly, because you have made the point. I understand the argument you are making, but we are talking about the post of Home Secretary, not an individual. The point is on the record and I think we should now move on.
Peter Kyle
I am very respectful of your chairmanship. I will move on and conclude my remarks. I have put on the record what I wanted to say, which was to explain delicately the parallels between the comments that were made in public statements relating to the Home Secretary. What I said—I will not repeat it—was meant to acknowledge your point, Mr Bone, that this legislation will almost certainly last for a generation and will therefore see successive Home Secretaries. A particular issue right now is the character of the one who—
The Chair
No, I am not having this. I do not want to spoil the hon. Gentleman’s speech, but I am going to. I thought he was making a very well-argued speech until he got to that point, which I think is out of order. In fact, I am telling him that it is out of order. We will now move on.
Peter Kyle
I appreciate that. In our debates yesterday, during an exhaustive set of speeches about the independence of the role of the commissioner, the case was made that it is extremely important that the link between independence and effectiveness is categoric. That has been exhaustively investigated by two previous inquiries by the Home Affairs Committee and by a Joint Committee of both Houses of Parliament. The direct link between effectiveness in that role and where it reports—its independence—comes from a central role of the commissioner: to give voice to people who have, for too long, been shut out of public debate. Victims and survivors of domestic abuse are some of the most disempowered people in our society.
The reason that independence is important is that there will be times when the commissioner needs to give voice to people who are suffering abuse but comes into conflict with current Home Office policy. That area is never more acute than on the issues of migrant women, legal aid and the experience of women at the hands of law enforcement agencies. Overwhelmingly, there will be a constructive relationship between the Home Office, the Home Secretary and the commissioner—there is already a good and fruitful working relationship between the Home Office and the commissioner designate—but there will be times when we need the commissioner to be an unflinching advocate for survivors and victims and to be 100% focused on the needs of those individuals, and not even 1% focused on the delicacies of managing a complex set of relationships within the Home Office.
There are also technical reasons why that is seen as more effective. As we heard in evidence, reporting to the Home Office is a complex relationship. The Home Office is a complex organisation with numerous officials and various levels that can have direct relationships with the commissioner. The commissioner will have a handful of staff, while the Home Office will have thousands, and although those thousands will not all report directly, dozens will—that is a very high-maintenance reporting line.
We will not push the amendment to a vote, but I urge the Minister to assure us that she will use her influence at the Home Office to ensure that the reporting line is effective and efficient and that the commissioner is not overwhelmed with different people asking for different things. As we all know, the civil service rightly needs to protect taxpayers’ money, and people’s liberty and safety, so it can sometimes overwhelm small organisations with bureaucracy. We want to ensure that the commissioner has all the freedom to act in a way that fully represents the victims and survivors for whom she is there to give voice.
Nickie Aiken (Cities of London and Westminster) (Con)
I understand the concerns that you raise about effectiveness and independence. We have a Children’s Commissioner and a Victims’ Commissioner, and they are both very independent. What makes you think—
Peter Kyle
I welcome the hon. Lady’s intervention. As I said yesterday, I remember my first Bill Committee well. I assure every Member sitting on a Bill Committee for the first time that they are in the safest of environments if they want to stand up to speak—and, like me, to make mistakes in an honest, open and sincere way. Believe me, it is much better to do so here in Committee than over there in the Chamber.
The hon. Lady is completely right about other commissioners, including the two she named. In fact, the Victims’ Commissioner reports directly to a Department. The Children’s Commissioner has a slightly different reporting line, because more aspects of her role involve reporting directly to Parliament. What those commissioners have in common, however, is that they have both given evidence to the Joint Committee and to the Select Committee on Home Affairs, and one commissioner gave evidence in our evidence session only last week.
Both those commissioners believe that greater independence for the domestic abuse commissioner is desirable. Based on their experience of being commissioners, they believe that that is more desirable, and they have both said so on the record in the firmest possible terms. That reflects on their own positions—they would like more freedom in their roles—and they are generously willing to share their experience with this Committee so that we can get it right for the new commissioner. We got it mostly right in previous times, but there is always room for improvement and, given on their experience, the issue of independence is something they would like to see improved.
With that, Mr Bone, I conclude my remarks.
The Chair
I thank the hon. Gentleman, and I wish him well with the cough because I suffer from exactly the same problem. You never know when it is going to come on—if I start to have a coughing fit, please, that is the reason.
Victoria Atkins
Forgive me, but I am returning to the Bill, which is what we are concerned with now.
I am very happy to talk about the Children’s Commissioner, who is sponsored by the Department for Education. I do not know whether anyone has been listening to the news recently, but I do not think anybody could accuse Ms Longfield of not being independent or not expressing her views pretty forcefully and vehemently. Only yesterday there was a statement in the House about the issues she has raised.
Peter Kyle
I am keen for us not to fall into the bearpit that the Chair has already identified. We are not talking about the specific officeholder; we are talking about the role. We need to make sure that we get the role right so that future holders of the office are able to exercise powers correctly and so that the powers encourage a certain type of behaviour, rather than relying on a character who can find their way through unideal rules, making the best of it.
Victoria Atkins
I am absolutely focusing on the powers available. Ms Longfield is exercising her powers as a commissioner who is sponsored by the Department for Education, just as Dame Vera Baird is—I think the hon. Member for Birmingham, Yardley referred to Dame Vera’s political background. I have to say that she was appointed by a Conservative Government. She is very capable and experienced, with decades of public service under her belt. Again, the appointments process identified the correct candidate and she uses her powers to great effect. No one can accuse Dame Vera of holding back when she feels there is a need to hold the Government to account.
The point is that the powers and the offices already exist, they work, and it is on that basis that we have listened to the Joint Committee’s recommendations. We have made changes between the first iteration and this iteration of the Bill. For example, clause 13 has been changed. It was the case that the Home Secretary would lay a copy of the report before Parliament, but we listened and took on board what the Joint Committee recommended. We have now changed that so that it is the commissioner who must arrange for a copy of her report to be laid before Parliament—it is the commissioner who decides when that happens, within the realms of the reporting framework and the financial year and so on. It is the commissioner who decides what is in that report, with that tiny, narrow exception that we discussed yesterday, which mirrors the previous clauses. I am grateful that the hon. Member for Hove withdrew that amendment; I took it that he was satisfied with my explanation.
I would very much argue that the domestic abuse commissioner is empowered. She has oversight by a Department—the Home Office—as does pretty much every other commissioner, with the three exceptions that we have identified, including the Parliamentary and Health Service Ombudsman, which by definition reports directly to Parliament. We have followed that model, but adapted it to take into account the matters raised by the Joint Committee.
In recommending the clause to the Committee, I pray in aid the fact that, when Ms Jacobs appeared before the Public Bill Committee in the previous Session, she was asked about sponsorship of her office by the Home Office. She replied that she felt
“confident about the hosting at the Home Office.”––[Official Report, Domestic Abuse Public Bill Committee, 29 October 2019; c. 9, Q10.]
In separate evidence to the Public Bill Committee last October, Zoë Billingham, who is one of Her Majesty’s inspectors of constabulary and fire and rescue services, said:
“The fact that I have a relationship with the Home Office does not undermine my personal statutory independence as an HMI or our organisation’s independence.”––[Official Report, Domestic Abuse Public Bill Committee, 29 October 2019; c. 43, Q70.]
I fully appreciate why hon. Members want to debate and explore the issue, but I hope that they will be reassured by the fact that office holders do not have a problem, and feel confident about the hosting at the Home Office. What is more, we have listened to the Committee and adapted the measures so that the commissioner has the direct relationship with Parliament that Members feel is so important.
Peter Kyle
I briefly make the point that you cannot have it both ways—or, rather, the Minister cannot have it both ways. You, Mr Bone, can obviously have it any way you like.
The Minister cannot say that the commissioners speak up freely, and give examples of that, but ignore what they say, and have a reporting line for them. Every one of the commissioners that she mentioned believes that the commissioner for domestic abuse should report somewhere other than the Home Office.
The Minister is right to quote Nicole, because she is a formidable and generous advocate. She has been given the role, and was clear from the outset about the reporting lines, which she accepted when she began to apply for the job. However, I remind the Minister that last week, in giving evidence, she made it clear in her opening exchange with me that she would welcome greater independence from the Home Office. She was clear about that.
I will lay the argument to rest, and accept the arguments of the Minister. I hope that she sees the sincerity with which we make our argument, which in no way impugns our belief that Nicole Jacobs will be a fantastic advocate. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 ordered to stand part of the Bill.
Clause 14
Duty to co-operate with Commissioner
Victoria Atkins
I beg to move amendment 30, in clause 14, page 10, line 2, after “London” insert “in its capacity as a local authority”
This amendment clarifies that the reference to the Common Council of the City of London in the definition of “English local authority” in clause 14 is to the Common Council in its capacity as a local authority.
Victoria Atkins
Clause 21 relates to matters that must be considered by the senior police officer before giving a notice. Again, I emphasise the difference between a notice and an order. First, the police officer must consider the welfare of any child whose interests the officer considers relevant to ensure that any safeguarding concerns are addressed appropriately. The child does not have to be personally connected to the perpetrator for their interests to be relevant and could therefore be the victim’s child from a previous relationship.
The police officer must also take reasonable steps to find out the opinion of the victim as to whether the notice should be given. However, as set out in subsection (4), the police officer does not have to obtain the victim’s consent to give a notice, which I think the Committee—I observe the nodding heads—is in agreement with. That enables the police to protect victims who may be coerced by the perpetrator into expressing the opinion that a notice should not be given or who are fearful of the consequences should they appear to be supporting action against the perpetrator.
Where the notice includes conditions in relation to the premises lived in by the victim, reasonable steps must be taken to find out the opinion of any other person who lives in the premises and is personally connected to the perpetrator, if the perpetrator also lives there. For example, if the perpetrator had caring responsibilities for a family member with whom they shared the premises, it would be important for the police to be aware of that. Consideration must also be given by the police officer to any representation that the perpetrator makes in relation to the giving of a notice, although that is not a formal process as with the courts.
I want to be absolutely clear that the primary consideration in determining whether notice should be given must be the protection of the victim and their children. We will ensure that that is set out clearly in the statutory guidance.
Peter Kyle
The decision that the officer has to make on whether he asks permission from an alleged victim or issues the notice without the support of the victim is going to be very difficult. What guidance will the Home Office issue to assist frontline officers in making that decision in a way that is consistent within and across police forces?
Victoria Atkins
The hon. Gentleman raises a sensible point. There will be moments where an officer has to judge the situation as it is presented to her or him. We will be issuing statutory guidance and, as with the statutory guidance on the Bill, that will very much be in consultation with the commissioner and frontline charities.
These sorts of decisions have to be made regularly by officers. During the current crisis, officers are making decisions about whether they visit certain premises to check that people are okay and the potential impact of that. There will be difficult decisions, but we will very much engage with people in a transparent way to make sure that the guidance is in a good place before it is issued formally.
Domestic Abuse Bill (Sixth sitting) Debate
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Peter Kyle
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Domestic Abuse Bill (Sixth sitting)
Peter Kyle ExcerptsWednesday 10th June 2020
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Victoria Atkins
I will address this clause briefly, because the hon. Member for Birmingham, Yardley has raised a query about it. Clause 23 relates to a perpetrator who is alleged to have breached the grounds of their notice. If a constable has reasonable grounds for believing that a person is in breach of a notice, they can be arrested without warrant, held in custody and brought before a magistrates court within 24 hours, or in time to attend the scheduled hearing of the application for a domestic abuse protection order—whichever is sooner. It is fair to say that these are very strong powers, which I hope shows the seriousness with which we believe the alleged perpetrator should be viewed, but also the seriousness with which the police and the courts view these notices.
The Bill also provides the police with a power of entry when they are arresting someone for breach of notice, and that is stronger than the current domestic violence protection notice provisions, which do not go quite that far. This additional power of entry will improve the police’s ability to safeguard victims and to gather vital evidence at the scene of an incident.
Peter Kyle (Hove) (Lab)
One of the most striking features of the clause is set out in subsection (2), which states:
“A person arrested by virtue of subsection (1) must be held in custody”.
These are indeed strong powers, but they send a very clear signal that the law and law enforcement are on the side of the alleged victim at such times. It is a very welcome move and will give confidence and respite to any alleged victims in future, so we thank the Government for delivering it.
Victoria Atkins
I thank the hon. Gentleman for that intervention. I am pleased that he sees what we are trying to achieve with this clause.
Question put and agreed to.
Clause 23 accordingly ordered to stand part of the Bill.
Clause 24
Meaning of “domestic abuse protection order”
Question proposed, That the clause stand part of the Bill.
Alex Chalk
I will say a couple of things. First, I completely agree with the hon. Lady’s observation that the powers are very stark but very welcome. It is important to note why they are in place. It is not uncommon that cases cannot necessarily be proven to the criminal standard: beyond reasonable doubt. The tribunal has to be satisfied that it is sure; however, there can be serious lingering concerns that, were it to apply a test of the balance of probabilities, it would have no difficulty in finding that the abuse had taken place.
It is to cater for those circumstances that the courts can now impose really quite robust measures to ensure the protection of complainants and the rehabilitation of perpetrators. They are important powers, and benches and courts will want to exercise them wisely. Inevitably, they apply to individuals who have not been convicted of any offence. The courts will therefore need to tread carefully to ensure that justice is done, but they have shown themselves well able to do that for many centuries.
Peter Kyle
My hon. Friend the Member for Birmingham, Yardley made the point very well that, for some of the issues that we are tackling with the legislation, the powers already existed in other pieces of legislation, but the courts, in their conservatism, refused to exercise them. As my hon. Friend asked, will the Minister ensure that his Department gives the right steer to the courts, which the president of the family division can translate into something that is actionable on the front line in family courts up and down the country?
Alex Chalk
The hon. Gentleman makes an important point. Ultimately, he will understand why I say that a very proper distinction exists between the legislature, the Executive and the judiciary. The judiciary are proudly and profoundly independent, and they will take their course and impose the orders if they think that it is in in the interest of justice to do so. Of course, we must ensure that courts are properly aware of the powers available to them. I have no doubt that the president of the family division, and indeed the Lord Chief Justice in the criminal sphere, will use their good offices to ensure that that takes place.
On the point that the hon. Member for Birmingham, Yardley made about whether we can look after the event to check that the powers are being used, first, there is, as she knows, the issue of the pilot. That provides a significant period to establish whether the orders are being taken up. Secondly, the Office for National Statistics has an annual publication of DA statistics that includes the different orders, so we will be able to get a sense of the extent to which they are being applied.
I hope that this will not sound overly fastidious, but one should not necessarily automatically read reluctance into a low level of use in one part of the country compared with others. It may be, because each case turns on the facts, that it was not appropriate in those circumstances. However, as a general observation, we will keep an eye on it, and there will be data on which the hon. Lady will no doubt robustly hold the Government to account. I beg to move.
Question put and agreed to.
Clause 28 accordingly ordered to stand part of the Bill.
Alex Chalk
It may be in the guidance but, I respectfully suggest, does not necessarily need to be in it. When a court comes to consider what it will or will not do, it may look at this measure and say, “Are we precluded from banning him from her workplace? If the answer to that is no, we will go ahead and do it, regardless of what is in the guidance.” It may be that it will be in there anyway, but I am confident that, as the Bill is set out, it is drafted sufficiently widely—deliberately so—for the courts to see their way to do justice and impose protections as they see fit.
Peter Kyle
One benefit of this approach to legislation is that it allows scope for creativity in the individual court to tailor to a specific circumstance that might not be predictable. In such circumstances, how can other courts learn from that innovation? It is obviously the responsibility of the judiciary, including the president of the family division of the High Court, but we have learnt from bitter experience that some courts and judges are almost impervious to change—I speak with respect to the former one before us. How does the Department seek to use innovation on the frontline in family courts to ensure that family courts in other parts of the country benefit?
Peter Kyle
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Domestic Abuse Bill (Seventh sitting)
Peter Kyle ExcerptsThursday 11th June 2020
(4 years, 4 months ago)
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Jess Phillips
I again thank the Minister, but with the greatest respect to the Secretary of State, unless something is written into the Bill, I do not know whether she will agree with what I am saying about what determines safe accommodation. All I seek to do in amending the Bill is a belt-and-braces job to ensure that that is the case—that what is perceived as good refuge accommodation is written into the Bill.
Peter Kyle
Gentle for the Minister is sometimes brutalising for those on the receiving end. Is it not true that a lot of the Bill, in particular at this point, relies on regulations? That means that we will have to rely not only on those Ministers currently in post but on the whim of future Ministers as well. That is why it is important that we nail down the Bill’s intentions. Rather than criticism of the to and fro in Committee, would it not be great to hear Ministers explain the intention, so that the next incumbents of their roles can see properly what the Bill is intended to do?
Domestic Abuse Bill (Eighth sitting) Debate
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Peter Kyle
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Domestic Abuse Bill (Eighth sitting)
Peter Kyle ExcerptsThursday 11th June 2020
(4 years, 4 months ago)
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Julie Marson (Hertford and Stortford) (Con)
I want to touch on my experience in the courts, particularly the specialist domestic violence courts. However harrowing it has been, it has been a genuine pleasure to be able to sit in those courts.
There are some common themes that I have seen in court. It is usually women and children affected. There is always a power and control dynamic; it is never just about the violence, although there usually has been violence. And there is always fear on the part of the victim, even with the special measures that I have seen—the screens and so on. I could still see the victims, and I saw them crying, shaking and trembling. This is so important. What such a measure does is take away some of the power that the perpetrator has to control the victim in the courtroom environment, because they are still trying to control, even right at that moment, with looks, sounds, movements—with everything they can muster at the time. Therefore, I profoundly support special measures across the piece, because I think that they are really valuable in limiting that control right through the justice system.
Peter Kyle (Hove) (Lab)
In the hon. Lady’s experience of dealing with these cases and being able to see the impact on victims, was she aware of the challenges that victims have before they get into the courtroom, because often in family courts it is very difficult to separate victims from perpetrators? Was she aware, in her job at the time, that that was also an issue that needed to be dealt with?
Julie Marson
The hon. Gentleman makes a really important point. Long before I ever see a victim in court, there has been a huge process to get there and to provide the right support. Independent domestic violence advisers and different support mechanisms are in place; there are supporting people who come in and sit with the victim in court, but it is a hugely traumatic experience and support is needed throughout that process.
I would add a point about a common theme among perpetrators. When, in normal criminal cases, shoplifters or burglars or other violent offenders are convicted and sent to prison, there is a shrug of the shoulders—it is a part of their life; a general hazard of the criminality that they are involved in. When I have had—I will use the phrase—the pleasure to convict a perpetrator and send them to prison, it is noticeable that all the power has all of a sudden been stripped away. Their indignance and fury is palpable; you can sense it and see it. That is what makes it a different crime and a different experience, and that is why special measures are important. I speak to that experience.
Alex Chalk
Courts have a common law discretion to manage their own proceedings, but it will be important for us to assist the them as much as possible by setting out the categories that should trigger the exemption. Although courts can act of their own motion, it is none the less important to prescribe to an extent that the provision applies in circumstances where somebody has been convicted, charged or cautioned. I will develop that point in the following passage.
In the light of the recommendation from the Joint Committee on the Draft Domestic Abuse Bill, the clause now makes provision that the automatic ban will also apply in other cases where a witness has adduced specified evidence of domestic abuse. The evidence will be specified in regulations and, as recommended by the Joint Committee, we intend for this evidence to broadly replicate that which is used to access civil legal aid. That is probably the point that the hon. Lady was driving at.
The prohibitions also apply reciprocally, to prevent a victim from having to cross-examine their abuser in person. Where the automatic ban does not apply, the clause also gives the court a discretion to prohibit cross-examination in person where it would be likely to diminish the quality of the witness’s evidence or cause significant distress to the witness or the party. That is the point about a court’s discretion: the judge has the individuals in front of them, can hear from them and can make a decision based on that.
In any case where cross-examination in person is prohibited, either under the automatic prohibition or at the discretion of the court, the judge must consider whether there is a satisfactory alternative means by which the witness can be cross-examined or the evidence can be obtained. That would include means that already fall under the judge’s general case management powers, such as putting the questions to the witness themselves or via a legal adviser, or by accepting pre-recorded cross-examination. I suppose one might imagine cases where the things that need to be cross-examined on are so narrow in scope that it would not be worth the aggravation of instructing independent counsel if the judge can do it and do justice in that way. It is important that the court can act of its own motion and flexibly, and the clause retains that flexibility.
If there are no satisfactory alternative means, the court must invite the prohibited party to appoint a legal representative to carry out cross-examination on their behalf. If they choose not to, or are unable to, the clause gives the court the power to appoint a legal representative—an advocate—for the sole purpose of conducting the cross-examination in the interests of the prohibited party. The court must appoint an advocate where it considers this to be necessary in the interests of justice.
There could be circumstances where it is not possible to protect the prohibited party’s rights to access to justice and/or a family life without the appointment of such an advocate. This might be in circumstances, for example, where the evidence that needs to be tested by cross-examination is complicated, because it is complex medical or other expert evidence, or because it is complex or confused factual evidence, say from a vulnerable witness. The clause also confers power on the Secretary of State to issue statutory guidance in connection with the role of that advocate.
The clause also confers power on the Secretary of State to make regulations about the fees and costs of a court-appointed advocate to be met from central funds. We understand the particular skill and care that is needed to carry out cross-examination of a vulnerable witness effectively. We will be designing a full fee scheme to support these provisions, in consultation with the sector and interested parties, prior to the implementation of the Bill.
This clause seeks to ensure that, in future, no victim of domestic abuse has to endure the trauma of being questioned in person by their abuser as part of ongoing family proceedings. It makes a big difference, and I commend it to the Committee.
Peter Kyle
It is rare but pleasing when one agrees so fully with the person one shadows, and I am grateful to him. I do not want to shock the Minister—I do not want him to be clutching his pearls as I say such words—but it is certainly the situation we find ourselves in on this clause. We are not opposing or seeking to amend the clause; we agree fully with it and what it seeks to achieve.
However, I want to spend a bit of time explaining how we got to where we are, because it is important. It is important that we make sure the record reflects the situation that this clause seeks to rectify and the impact that the cross-examination by perpetrators of victims has had on people. In so doing, I speak on behalf of a great number of advocates, both in Parliament and outside, over a great period of time. I can speak for myself on this issue, but I am very aware of the fact that I am also speaking on behalf of a lot of other people.
I had personal experience of this issue very soon after getting elected in 2015. Soon after the election, I was sitting on the floor of my campaign office among the detritus of a very vigorous campaign, sorting through things and trying to figure things out, when a very fragile, very vulnerable and very damaged woman suddenly appeared in the doorway. She came in to see me, and said, “Are you the new MP?” I said yes, and she said, “I saw your leaflets. You look like a friendly person. I am now going to flee my relationship, and I will only speak to you about it.” We sat in the corner of the office, and this woman was bruised and bleeding. She had literally escaped from the relationship, and I, as an MP of a few days, was thinking on the inside, “Oh my God, what do I do in this situation? How do I help this extraordinarily vulnerable person?” I just did the best I possibly could, and that involved brokering a relationship between her and the police, about which she was terrified. She was scared of the authorities because the authorities had let her down so many times, repeatedly. I supported that woman, and she went into a protective programme. She now has a new identity and a new life, and although she will never ever be able to escape the horrors of what she went through, she certainly has an opportunity to discover new, more fruitful aspects of life, which she was prevented from doing before.
One of the aspects I experienced very soon after the process of supporting her began was the experience of the family court. I could not believe what I heard when she came to see me after some hearings in the family court, where she was made to share the space of the person she had fled. Having seen her on the day she fled her relationship, it was horrendous to hear that she was forced into the same waiting room as this person, had to be in the same space when their relationship was discussed and, crucially, was cross-examined by him.
At the same time, another constituent came to see me in my surgery. She had just been cross-examined by her abusive partner for the third time. She had previously been hospitalised; the perpetrator had broken more than a dozen or her bones and repeatedly raped her. On the third appearance in the family court, she was shaking so violently that she needed assistance to get to the taxi afterwards. On the journey home, the taxi driver had to stop and help her out of the taxi so that she could vomit on the pavement.
That was happening to people who I was sitting with and who I represented in Parliament. I could not understand that the very institutions that existed to protect people like them were facilitating the abuse—in front of judges, in a room with police officers, abuse was happening, and nobody was offering support. To my shame, I could not quite believe that this was possible in 21st-century Britain. When I came back to Parliament, I sought out my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) and asked him about it. I said, “I am hearing this thing, but I can’t believe it is possible.” He, as the former Director of Public Prosecutions, said, “It is happening, and there is a big campaign out there to try and change it.”
I could not believe that it was still happening, so I went to speak to Ministers. Repeatedly, Minister after Minister told me that a cultural change was needed in the criminal justice system, not a legislative change. I could not accept that. Having gone to speak to judges to understand why change was not happening, and having repeatedly spoken to Ministers, I found it incredibly hard to believe that the Government were not seeing or understanding the abuse. Of course, they were seeing it, but they were refusing to change. There are many lessons here, and I hope Back Benchers realise that persistence is one of them.
On 15 September 2016, I secured a Backbench debate that was led by Angela Smith, the then Member for Penistone and Stocksbridge. We had gone with a cross-party group to get a Backbench debate. There were several Tories in the group, and we worked as a formidable team. My hon. Friend the Member for Birmingham, Yardley was not part of the group that went to the Backbench Business Committee, because she sat on the Committee and was supposed to be impartial, but it was clear from her facial expressions where she stood on the issue.
During the debate itself, I was able to put on record the most shocking example of this abuse that I have ever come across. In the eight or nine months leading up to the debate, I met dozens of women who had gone through such abuse. The most shocking case was that of Jane Clough—some people in this room will be aware of her case. I am not the sort of person who normally quotes himself, but in going through all the different debates that have taken place in Parliament in the last five years on this issue, I read some of the examples I put on record, and I want to quote directly from one debate. My reason for doing so is that I want Members to realise, and I want the record to reflect, that this example has been on the House of Commons record for almost four years.
Jess Phillips
Is one reason why Lobby journalists and other journalists did not believe it potentially because of the deep secrecy about what occurs in family courts? In the case of the Cloughs, while they were going through the court, they would have been forbidden from speaking about it.
Peter Kyle
I am grateful to my hon. Friend, who makes an important point. She is right about the secrecy of family courts. In a subsequent urgent question that I was granted on cross-examination, I asked for a full review of practices in family courts with that very much in mind. Since then, some journalists have been allowed into family courts, but it is heavily regulated to the point where it still stymies the process, work and operation of the family court. It might interest Members to learn that in that quote from Hansard, I used parliamentary privilege. I broke the regulations of the family court to even describe the process that occurred in that exchange in the family court with the Clough family. That is how heavily restricted the processes of family courts are at times, and that is what has led to the lack of reform in comparison with other parts of the criminal justice system. Everything that we are discussing in this clause is already the case in criminal courts.
If the press and the media had been able to scrutinise, and if we had known what was happening in some of those cases, it would have been dealt with some time ago. That is another important point, because The Times splashed the story twice on its front page over Christmas 2016. On 5 January 2017, it again placed the story on the front page, but at that point with an off-the-record briefing from a source in the Ministry of Justice who said that they were going to review and take action on it.
What frustrated me at that point was the equal opposite to what elated me. I was absolutely punching the air that there was going to be movement. What frustrated me, as a parliamentarian, was that we had given the Government half a dozen opportunities in the previous six months on the record in the Commons using the right procedures to get the change that we needed, but it took getting the media involved to deliver it.
We all know that, no matter who the Speaker is, every Speaker will go through the roof when they see an off-the-record briefing making announcements to the media. I immediately asked Speaker Bercow for an urgent question, which I was granted on 7 January to discuss cross-examination in family courts. The Minister who responded to it on 9 January was the right hon. and learned Member for North East Hertfordshire (Sir Oliver Heald), who was characteristically decent and wholehearted in his response and who engaged with the issue head on. He said:
“Is it necessary to change the law? The answer is yes it is. Primary legislation would be necessary to ban cross-examination…work is being done at a great pace to ensure that all these matters are dealt with in a comprehensive and effective way—the urgency is there…My feeling is that what is required is pretty straightforward: a ban, and then the necessary ancillary measures to allow cross-examination without the perpetrator doing it.”—[Official Report, 9 January 2017; Vol. 619, c. 27.]
Hon. Members can imagine that that was a big moment.
As an aside, I refer to the exchange that just took place between the Minister and my hon. Friend the Member for Birmingham, Yardley. When she intervened on him and asked, “When will it be done?”, he replied saying, “As soon as possible.” There was a guarantee to sort out cross-examination almost four years ago—the right hon. and learned Member for North East Hertfordshire said on the record, “the urgency is there”—so when we hear such things from Ministers, we sometimes have that experience, which is why we often seek to probe and get things on the record about timings.
We had a huge opportunity for change. We had the commitment of the Government. At one point the then Minister, the right hon. and learned Member for North East Hertfordshire, giddily galloped across the Chamber to put the amendment that he sought to move to the Prison and Courts Bill in my hand and said, “There it is. We’re going to do it.” Then, of course, we fell into the 2017 general election. Repeated attempts to get it fixed in the subsequent period also fell to the challenges of the time. Then, of course, we had the Bill that fell before the 2019 general election.
After the UQ of January 2017, I received over 1,000 messages from around the world—mostly women, but some men—who had experienced this in their own lives and felt an incredible need to share their experiences. I had underestimated the degree to which this is a community of people who have suffered, survived and are connected in various ways to share their stories. I had to take on a team of volunteers just to cope with their specific correspondence. Every single person who contacted me had such stories of pain and suffering, as well as persistence and fortitude to a degree that is almost unimaginable for someone who has not experienced it, that I believed every single one of them deserved a personal response.
What united every single message was gratitude that change was coming and a sense of relief that other people would not go through what they went through. That is why the delay of four years has been so difficult for very many people to stomach. Although the numbers have declined because courts have become more aware of the challenge, even one victim and survivor of domestic abuse experiencing a fraction of what we have just heard about would be one too many. So when my hon. Friend the Member for Birmingham, Yardley, members of our Front-Bench team and I read in clause 59:
“In family proceedings, no party to the proceedings who has been convicted of or given a caution for, or is charged with, a specified offence may cross-examine in person a witness who is the victim, or alleged victim, of that offence.”—
believe, me, I want to jump up and down screaming, “Hallelujah!” This is a very important moment. I wish it had come sooner, but it takes away none of the excitement, elation and gratitude that it is actually coming now. This is a good day and a good moment for very many people.
Some representative organisations and campaigning groups have been in touch with a request to amend the clause. They have concerns that still, within the letter of the law, it would be possible for a perpetrator, or alleged perpetrator, to nominate somebody close to them—a friend or a family member—to do the cross-examination on their behalf who might well act in their interests in terms of carrying on the abuse. I do not believe, from reading the Bill, that that is in the spirit of the proposed law or is something I believe a court would countenance. However, I seek reassurance from the Minister that they are aware of that, and that should it ever happen in court they will not wait six months, a year or four years before fixing it, but do everything in their power, including bringing something to the Floor of the House, to deal with it if that is what it takes.
Liz Saville Roberts
I too very much welcome the drive behind the clause. The hon. Member for Hove expressed so well the sense that victims have been grist to the mill in the past and this measure will re-set the balance to a degree. I very much agree with the spirit of the amendment to the clause, but there are a couple of points I would like to raise to bring to the attention of the Minister potential loopholes that may need attention in future.
Peter Kyle
Main Page: Peter Kyle (Labour - Hove and Portslade)Department Debates - View all Peter Kyle's debates with the Home Office
Domestic Abuse Bill (Ninth sitting)
Peter Kyle ExcerptsTuesday 16th June 2020
(4 years, 4 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 16 June 2020 - (16 Jun 2020)
The Chair
I will not go through all the information that I gave at the beginning of last week’s sittings, but I will just remind everyone to switch their mobiles to silent mode. Also, can you ensure that your speaking notes are sent to hansardnotes@parliament.uk, for the assistance of the Hansard writers? We begin this morning’s sitting with clause 66 and Government amendment 40.
Peter Kyle (Hove) (Lab)
On a point of order, Ms Buck. I know that it is unusual to do this, but I think it is quite important, so I am very grateful. Last week, the head of policy and advocacy for the Children’s Commissioner’s Office wrote to me to explain that she had been wrongly quoted during the previous debates. I do not seek at all to reopen any of the debates of the past, but I do think that this is an important message. If I may, I will read out the three relevant paragraphs. The message states:
“Dear Mr Kyle
I am writing to you and the clerks of the Domestic Abuse Bill Committee to correct the account of a comment I made to the Pre-Legislative Scrutiny Committee for the Domestic Abuse Bill.
When I gave evidence to the Committee I commented that the Children’s Commissioner does not have to send draft copies of our reports or annual reports to the Secretary of State for Education for review. I was making the argument that I felt the same independence should be given to the new Domestic Abuse Commissioner.
Unfortunately my comment was recorded as saying that the Children’s Commissioner did have…‘to send draft reports to the Secretary of State for Education before publication, and that the Secretary of State had to approve its annual strategic plan’, and I did not spot this mistake in the transcript at the time. I am writing to clarify this point although the argument you were making during the debate still stands—that this independence is something to be welcomed.
I don’t know if it is possible for the clerks to amend the report of the pre-legislative scrutiny committee to reflect this error but I wanted to alert you both…as soon as I was made aware of this.
Yours sincerely
Emily Frith
Head of Policy and Advocacy
Children’s Commissioner’s Office”.
I just wanted to set the record straight, not to reopen the previous debate.
The Chair
Thank you, Mr Kyle. That has now been placed on the record, and I hope that it will satisfy everyone.
Clause 66
Power of Secretary of State to issue guidance about domestic abuse, etc
Jess Phillips
I absolutely share the hon. Lady’s frustrations. The truth of the matter is that we are talking about specific cases where this defence could easily be leaned on, and we are trying to shut those loopholes. There are only really three defences in a rape case. One is mistaken identity: it was not the accused, but someone completely different. Another is that it just did not happen, full stop—luckily, science has moved quicker than social science. The final one is that she or he consented. That is usually the one that is leaned on, because, unfortunately, it is much more difficult to prove than it is to rape.
Pre-existing case law, R v. Brown, makes it clear that a person cannot consent to injury or death during sex. However, in 45% of cases where a man kills a woman during sex and claims she consented to it, this defence works. We cannot let that continue.
If a man can convince police, prosecutors, coroners, a judge or even a jury that the woman was injured during a consensual act, he may see the following outcomes: he is believed; police do not investigate it as a crime or no charges are sought by prosecutors; prosecutors opt to pursue a manslaughter charge, ensuring a far shorter sentence than for a murder charge; mitigation in sentencing due to no intention to kill. Extreme sexual and sadistic violence is not treated as an aggravating factor in sentencing because it is accepted on his say so that she consented to it. All those outcomes are entirely acceptable today.
Peter Kyle
There are many aspects of the cases that my hon. Friend is outlining that are extraordinarily disturbing and painful to understand. There is another one: the impact on the victim’s family. For them to sit there, coping with the death of their loved one, and then to hear that their loved one consented to these kinds of brutalising factors must cause pain beyond comprehension. Should we not remember the victims in all of this?
Jess Phillips
Absolutely. Even just from a personal perspective, the idea of my parents having to listen to conversations about me having sex at all is a harrowing thought, but we are talking about people who have lost their loved one having to listen to such things. The point about anonymity is made in rape cases, but there is no similar level of anonymity in this instance for a bereaved mother, father, brothers and sisters having to hear about vicious abuse, while somebody takes to the stand to say that the victim wanted it and loved it.
I have seen cases that would make most people’s toes curl, but I have to say that I have been deeply affected by this case. I have become a bit of an old hand at some things, but the Connolly case is so harrowing that I cannot imagine how her family have coped with it.
The law should be clear to all: a person cannot consent to serious injury or death. But the case law is not up to the task. When a woman is dead, she cannot speak for herself. Any man charged with killing a woman, or a current or former partner, should simply say, “She wanted it.” This is why we must change the law and urge the Government to accept these amendments.
Peter Kyle
I rise to say a few words about new clause 14. It seeks to grant anonymity in the press to survivors of domestic abuse, should they request it. In recent days, the front page of one of our national newspapers covered an instance of domestic abuse in really quite grim terms. It failed to point out the consequences of it, and did not report any remorse whatsoever. That kind of most insensitive reporting still makes its way on to the front page of papers.
We know the counter-case, too. In the wake of the Leveson inquiry, we know that these issues are sensitive. We must be fully aware of the need for the press to do their job in as unencumbered a way as possible. The Independent Press Standards Organisation, the largest independent regulator of the newspaper and magazine industry in the UK, has no guidance whatever for journalists on how to report domestic abuse cases. There is only a short blog, which suggests that journalists heed to how domestic abuse charities would like cases reported locally. The industry has acknowledged the issues relating to the reporting of domestic abuse, but no action whatever has been taken.
It is clear that the Government and Parliament need to speak, and we need to guide the industry through legislation. The issue has become so pronounced because stories are published in which victims and survivors of domestic abuse are named, as well as family members and children. When these stories make their way on to websites, which is where the majority of people read news these days, victims have no anonymity. Underneath the story, there is a plethora of people discussing and naming people, saying, “I heard this”, or “I heard that she was that”; the irony is that they are all anonymous. They are benefiting from an anonymity that the victims do not have. These issues are cast in a new light in the modern era, whereas regulations are distinctly old-fashioned.
Journalists are struggling on how to deal with the issue. I recognise that, and have spoken to many of them. It is not wholly the responsibility of the press, because when it comes to other crimes and their survivors, it is set out in law how journalists are to respond. The keystone piece of legislation providing anonymity is the Sexual Offences (Amendment) Act 1992, which gives survivors of sexual assault the right to press anonymity, and lays out the circumstances in which that right can be waived.
The Government have already shown support for the spirit of the new clause in legislation for survivors of other crimes such as the Serious Crimes Act 2015, which grants anonymity to and protection for alleged victims of female genital mutilation. In section 2 of the Modern Slavery Act 2015, victims of any human trafficking offence are granted anonymity. The Government are willing to grant anonymity to certain types of people, and it is striking that a person has the right to anonymity if they are the victim of sexual violence, but not if that sexual violence occurs within a relationship and in a home. These proceedings cast that anonymity in a new light. The new clause would provide similar restrictions on how the press could report on survivors of domestic abuse, so that it would not be left to individual publications to make that decision. In today’s hyper-competitive media world, where there are shrinking readerships and a move to online news, the issue is more important than ever.
The domestic abuse charity RISE in my constituency has been vocal about the need for this change. It reports that if the survivors they care for are named in the press, they are less likely to report domestic abuse in the first place. One service user provided testimony about the impact on their life of being named in the press:
“My daughter had to be informed by the school after the article named me as all the parents at school were aware, as well as the children because it was all over social media. It made me feel that I was still being controlled, I felt vulnerable and exposed. I feel so much hurt for my little girl, she didn’t need to know, the impact on her is huge, she is hypervigilant and gets very scared on the bus if someone is on their phone as she believes they are filming her. I never want another child to go through what my child went through.”
Another said:
“None of my family knew, neither did my employer. I felt a lot of shame and then seeing my name in the article and the awful comments made below the article were dreadful, there was racial abuse online. I felt sad, ashamed, embarrassed and violated. Something that took a lot of courage for me to report and everyone got to know about it. Even now I find myself googling my name for fear of it popping up again. There is an added layer of shame when I already had enough to process with regard to being abused.”
The Government have shown, through the development and scrutiny of the Bill, that they want it to stand the test of time. I believe that, as we move forward, the press becomes more competitive; there are more online opportunities to name and discuss people, and to tread over the line—particularly when someone in the public eye is subject to domestic abuse and the opportunity for media to make money from using that name becomes overwhelming. Some journalists might feel some shame about it, but for some it might be a choice between making money or income, and protecting a victim. I do not think that individual journalists should be put in that position.
We have an opportunity now to equalise the law and extend the protection of the anonymity given in cases of violent sexual crimes that occur outside the home, so that it is also given when crimes occur inside the home.
Alex Davies-Jones
Diolch, Ms Buck. I will be brief. I do not want to repeat the powerful words of my hon. Friend the Member for Birmingham, Yardley, but it is important to make the point that previous sexual behaviour is not, and should never be, taken as evidence of consent to a particular encounter. Neither should experience of or interest in any particular act be used to suggest that it is possible for someone to consent to their own murder, as has been the case in the past.
My hon. Friend the Member for Hove said that the media are complicit in sexualising and sensationalising horrific acts of violence and causing huge further trauma to the families of victims. Those victims—mainly women—and their families need anonymity.
A BBC study in 2019 found that more than a third of UK women under the age of 40 had experienced unwanted slapping, choking or gagging during consensual sex. Of the women who experienced those acts, 20% said they had been left upset or frightened. It is vital that women’s voices should no longer be silenced.
Peter Kyle
The Minister is making a good point. As he knows, the opportunity to amend legislation does not come up often, and we often do not get the chance to amend the perfect piece of legislation. Using all his wit, experience and erudition, he is able to find the failings in the new clause, but a principle is at stake. If he is saying that this is not the ideal piece of legislation or method to achieve those aims, will he spend a bit of time telling us what is, whether he will back it and whether he will make it happen swiftly?
Alex Chalk
I invite the hon. Gentleman to listen carefully to what I say in due course, and I hope that he will not be unhappy—
Alex Chalk
Disappointed—thank you. Do you want to make the speech?
The concern with the new clauses, among other things, is that they do not necessarily replicate the dictum in Brown. To those who are not familiar with this, a case more than 20 years ago, Crown v. Brown, laid down some case law—a point adverted to by the hon. Member for Birmingham, Yardley—that we recognise needs to be clarified. The point that I will develop in due course, which I think will find favour with the hon. Member for Hove, is that that is precisely what we intend to do. The concern is that these new clauses, for the reasons I have indicated—I will not go into any detail on new clause 5, because it is a similar point that I would seek to make—limit the application of the principles in Brown to offences that occur in a domestic abuse situation. I heard the hon. Member for Birmingham, Yardley say sotto voce, “Isn’t a Tinder date an intimate personal relationship?”. The reality is—I speak as someone who has defended as well as prosecuted—that the job of a defence advocate is to find whatever wiggle room there is in the law. Our job here is to close that down.
As I have indicated, the prosecution would have to show also that this activity was either not consensual, or was consensual and also amounted to domestic abuse. Again, defence counsel will be seeking to ask, “Is this really domestic abuse in circumstances where it is consensual?”. You can immediately see the arguments that would be made in court. The key is for us to close that down and give practitioners—but, more importantly, people—absolute clarity about what is and what is not acceptable. As I said at the outset, we need to ensure that any change made is clear, and does not inadvertently create loopholes or uncertainties in the law.
I invite the hon. Member for Hove to accept that despite the difficulties, we have been anxiously and actively considering for some considerable time how we can best ensure greater clarity in the law. We aim to set out the Government’s approach in time for Report.
Peter Kyle
On behalf of the Opposition Front Bench, I thank the Minister for his comments and the considered way he made them. We particularly thank him for the timeframe he outlined. Making a statement before Report is incredibly important; we need to move swiftly. The Minister knows better than anyone that if the same thing happened to one other person in the coming weeks, it would be an absolute travesty, so we need to make sure that these loopholes are dealt with quickly.
Alex Chalk
I hear what the hon. Gentleman has said, and I leave it where it stands. I understand and I agree. I turn to new clauses 6 and 7. Those who have argued passionately in respect of the so-called rough sex defence will acknowledge that perhaps this point is contingent on that. There are also real practical difficulties with new clauses 6 and 7. Let me develop them briefly.
New clause 6 requires the personal consent of the personal Director of Public Prosecutions where a charge or plea less than murder, for example manslaughter, is applied or accepted in cases of domestic homicide. That sounds unobjectionable. It would be perfectly sensible if the DPP was readily able or had the capacity to give that kind of personal consent. However, there are practical problems with it. Let me set out the context. A statutory requirement of this nature is, and should be, extremely rare. It should only be imposed where a prosecution touches on sensitive issues of public policy, not simply sensitive issues, which are legion in the criminal justice system. The only recent example of this consent function applies to offences under the Bribery Act 2010, and last year, a Select Committee undertaking post-legislative review of the 2010 Act recommended that the requirement for personal DPP consent be reconsidered.
We have to acknowledge that the Crown Prosecution Service handles a high volume of serious and complex casework nationwide, and it is important that prosecutors have the confidence to take their own legal decisions. Introducing requirements for personal DPP consent could serve to undermine or frustrate this approach. It would also, I am bound to say, potentially sit uneasily alongside other very difficult decisions that prosecutors have to make. Suppose, for example, in the context of a terrorist prosecution, that because of the way the evidence emerged, or because of new lines of enquiry, a decision was made to take the defendant off the indictment in respect of a bomb plot, but the prosecution said, “We are going to continue to prosecute him in respect of possession of materials that might be of assistance to a person planning an act of terrorism.” These are immensely difficult and sensitive decisions. However, there is neither the capacity nor the wherewithal for the DPP to make those personal decisions all the time.
It is sad to note that there is a high volume of cases involving domestic homicide, as the hon. Member for Birmingham, Yardley well understands. It means that charging decisions need to be made urgently, and sometimes at a speed, where no personal DPP involvement is possible.
These considerations apply equally to cases in which a lesser plea may be accepted. If pleas are offered in court, prosecutors are required to make a decision in an incredibly short period of time after speaking with the victim’s family, and the DPP could not be involved in that level of decision making. I invite the Committee to consider the circumstances, supposing it is in court: because of the way that the evidence has come out, there is the consideration of whether a lesser plea should be accepted. The hon. Lady pointed out that this does not always happen, but if the family have been properly consulted, it is no kindness to that family to say, ‘Do you know what? We’re not going to make a decision on this, which would let you begin to heal and put this behind you. We’re going to put this off for two or three weeks while the DPP has to consider it.’ Court proceedings will be suspended awkwardly, and the poor family will be left hanging.
Forgive me for stating the obvious, but it bears emphasising that the real remedy is for good prosecutors––the overwhelming majority are good and do their duty with diligence, conspicuous ability and conscientiousness– –to liaise with the family in a compassionate and inclusive way. I understand the desire for additional scrutiny in such significant and sensitive cases, but I assure the Committee that the Crown Prosecution Service already has systems in place to check and challenge decision making in these circumstances. Internal CPS policies require that chief crown prosecutors are notified of any and all homicide cases. It is likely as well that domestic homicides would be subject to a case management panel with a lead lawyer and either the deputy chief crown prosecutor or the chief crown prosecutor, so there is senior oversight.
The point that I really want to underscore is that because cases of domestic homicide inevitably have a lasting and dreadful impact on victims’ families, people deserve support and compassion, particularly as criminal proceedings can be upsetting and difficult to follow. Procedures are in place to ensure that is given. Where there is an allegation of murder, the police very often appoint a family liaison officer as a matter of course to assist with the process. I speak as someone who has prosecuted several murder cases. The role that liaison officers play is absolutely fantastic. Otherwise, the poor family turn up in court with no idea what an indictment is, wondering “What on earth is this examination-in-chief stuff? What is this plea and trial preparation hearing?”. The liaison officer role is invaluable, and needs to be supported by prosecutors speaking to family members, as they increasingly do.
Peter Kyle
I have never heard a journalist wanting the rule that prevents reporting from naming victims of sexual violence overturned. Has the Minister?
Alex Chalk
What I can say, from my experience in court, is that it is not unusual for the press to seek to overturn reporting restrictions where they are imposed at the discretion of the court, so although the hon. Gentleman may be right that in fact there is not a particular drumbeat in respect of sexual offences, I hope that the Committee will not be gulled into thinking that the press do not very often seek to overturn reporting restrictions that are imposed. The arguments that are made are, “Why should we be having secret justice?”, and so on. Those arguments are very often dispatched by the court; they are considered not to be valid, and then they are sometimes taken on appeal and so on. The only point that I am seeking to make is that we must be careful in this area and strike a balance, so that we do not find ourselves bringing the law into disrepute.
Domestic Abuse Bill (Eleventh sitting) Debate
Full Debate: Read Full DebateDepartment: Ministry of Justice
Peter Kyle
Main Page: Peter Kyle (Labour - Hove and Portslade)Department Debates - View all Peter Kyle's debates with the Ministry of Justice
Domestic Abuse Bill (Eleventh sitting)
Peter Kyle ExcerptsWednesday 17th June 2020
(4 years, 4 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 17 June 2020 - (17 Jun 2020)
The Chair
I remind everyone about social distancing, which is very important. If anyone is unhappy with the social distancing in the room, please let me know and we will try to do something about it. It would help Hansard enormously if we could email copies of notes or speeches to hansardnotes@parliament.uk.
New Clause 25
Repeal of provisions about defence for controlling or coercive behaviour offence
“In section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship), omit subsections (8) to (10) (which make provision for a defence in proceedings for an offence under that section).”.—(Peter Kyle.)
This new clause seeks to repeal the ‘carers’ defence’ for the offence of controlling or coercive behaviour in intimate or family relationships.
Brought up, and read the First time.
Peter Kyle (Hove) (Lab)
I beg to move, That the clause be read a Second time.
It is great to serve under your chairmanship again, Mr Bone—welcome back to the Committee. I rise to speak to new clause 25, on the repeal of provisions about defence for controlling or coercive behaviour offence.
Domestic abuse against disabled people is simply not discussed enough. They are hidden victims. When abuse against disabled people is raised, it is usually in the context of adult safeguarding processes, which labels disabled people as vulnerable adults and which disabled survivors and specialists in the field tell us is failing them.
The new clause reflects 10 years’ worth of casework by Stay Safe East, one of only two organisations in England and Wales led by disabled women supporting disabled survivors, and its partner organisations, in an advisory group on domestic abuse and disability. That is two specialist disability and deaf services for a disabled population of 10 million people.
The data on abuse against disabled people is grim. Disabled adults are at least 1.5 times more likely to be a victim or survivor of violence than non-disabled adults. Disabled women are at least three times more likely to experience domestic abuse from family members, be that their partner, parents, siblings, adult children or other family members. Some of the abusers will also be the person’s carer. It is highly likely that those figures are an underestimate, as the only example—the crime survey—is not in an accessible format for deaf and disabled people to participate in, and many survivors cannot access external help.
The rate of domestic abuse against disabled men is also higher than against non-disabled men, but disabled women are more likely to experience repeated, sustained and more violent abuse than disabled men. Disabled children, and particularly disabled girl children, are more likely to experience sexual violence and physical abuse than non-disabled children. What is more, disabled people may have other people in their lives who have a level of control, whether that is unpaid carers or paid carers from an agency, or a personal assistant.
This is the case for disabled women across all communities, of all ages and all backgrounds. Disabled women face specific forms of abuse at the hands of partners, family members and paid or unpaid carers: control of communication; control of medication; restricting access to disability support; using a person’s impairment to control them—for example, playing on their mental health or taking advantage of the fact that they have learning disabilities—forced marriage on the grounds that the partner “will look after you when I am gone”; and constantly abusing women because of their impairment. That, in itself, is a form of hate crime.
Abusers hold the very real threat that, “They will take your kids away from you” over a disabled woman. In the experience of both Stay Safe East and SignHealth, a deaf-led service for deaf survivors of domestic abuse, deaf or disabled mothers are at much higher risk of losing their children through the courts or other domestic abuse. In some cases, the courts opt to place children in the care of an abusive father rather than letting them live with a disabled mother, who is considered a poor parent for reasons simply of her disability, and providing support to keep the children with her.
Unfortunately, disabled victims who are able to speak out against this face multiple barriers to gaining safety and justice. Poor access to refuges or emergency accommodation; voice phone-only contact with many services, which excludes deaf women and those without speech; services not set up to deal with victims who need long-term support; a lack of quality, accessible information or British Sign Language interpreters; no access to counselling—the list is very, very long.
Worst of all is not being believed by police, social workers or health workers because they are disabled women, which is something that is frequently reported by deaf and disabled women who approach the two specialist organisations. A little-known clause, now subsections 76(8) and (9) of the Serious Crime Act 2015, introduced what has been dubbed “the carers’ defence” by disabled survivor groups. It introduced a worrying caveat into what was a piece of legislation to protect victims of abuse, by allowing an abuser who is facing charges of coercive control to claim that they were acting in the best interests of the victim.
That provision was originally brought to the attention of legislators through the efforts of Sisters of Frida, a disabled women’s collective, and Stay Safe East, but it became part of the 2015 Act. Although the clause may have been introduced with the best of intentions, to avoid unnecessary prosecution of carers who were, for example, preventing somebody with dementia from going out alone because they were at risk, there is a real risk that it could be used by abusers to claim that they are acting in the best interests of somebody they are controlling with malicious intent.
That is especially true of people who might be seen to have capacity issues, such as deaf people, people without speech, people with cognitive issues as a result of a stroke, people with learning difficulties and people with mental health challenges. That, of course, is a substantial number of potential victims among those who face the greatest barriers to safety and getting justice.
For example, the parents of a young woman with mild learning disabilities stopped her going out alone, only letting her go to college with a chaperone, on the grounds that she was at risk from strange men. The parents had failed to teach their daughter about safe relationships, had removed her from personal, social, health and economic education lessons in school, and had controlled her friendships with her peer group. The family claimed that they were protecting her. The young woman initially believed that her parents were doing their best for her, but as she grew up she came to realise that she could make her own decisions. It subsequently emerged that, on top of all the coercive control, the family were taking the young woman’s benefits, and there was also physical abuse.
The section gives a clear message to disabled survivors and victims generally: “Your decisions are not your own, and abusers can claim to be acting in your best interests.” “For her own good” is an expression we often hear abusers using, even if they are abusing that very interest, and the courts will let them get away with exercising abuse of power over their victims.
In a context where disabled survivors are the least likely to speak out, and where, if a case does go to court, the chance of a successful outcome for the victim is very low, especially for disabled victims, that is not the message that we want legislation on domestic abuse to give to survivors or, for that matter, the police, the Crown Prosecution Service or abusers. The Care Act 2014 and the Mental Capacity Act 2005 both provide sufficient protection for genuine carers who face malicious allegations. A law to protect victims is not the place for a clause that protects potential abusers.
All too often, concerns about disabled victims are ignored. The Government now have a real opportunity to listen, and we urge the Minister to take full advantage of that opportunity. We are talking about a group with many intersectional and very complex challenges, which provide additional areas for abusers to exert control and abuse.
The Parliamentary Under-Secretary of State for Justice (Alex Chalk)
This is the first of two debates on different aspects of the controlling or coercive behaviour offence in section 76 of the Serious Crime Act 2015. As the hon. Member for Hove has indicated, new clause 25 seeks to repeal the defence in section 76(8), which has been labelled by some as the “carers’ defence”.
Currently, the coercive or controlling behaviour offence allows for such a limited defence if the accused believes that they were acting in the best interests of the victim. It is important to note that the accused would also need to demonstrate to the court that in all the circumstances of the case their behaviour, while apparently controlling, was reasonable. This defence is intended to cover cases, for instance, in which the accused was the carer for a disabled spouse, and for medical reasons had to compel their partner to take medication or to stay at home for their own protection.
It is worth taking a moment to consider the sorts of circumstances in which that defence might apply. Imagine a situation in which neighbours walk past a home and see someone who wants to get out of the front garden and on to the road, and is in some distress at not being able to do so. That neighbour calls the police, and the police then investigate. It emerges that the person trying to get on to the road is, very sadly, suffering from dementia, and their partner is a person of unimpeachable integrity and good character—a decent, loving partner of many years’ standing who has shown nothing but care and compassion for that individual, but who is concerned that if they get out on to the road, they will be a danger to themselves and others. Is it seriously to be suggested that that person should be at risk of conviction, punishment and disgrace?
Alex Chalk
Of course it might be the case, but the important thing is that this defence allows a proper opportunity for a tribunal of fact to consider that, and I think it is absolutely right that it should do so. It is worth noting that under section 76 the burden is on the individual to advance that defence, and for a tribunal of fact to then consider whether it has been disproved. In other words, if that individual advances something that is utterly implausible, a jury—or indeed a bench of magistrates—would have little difficulty in exposing it as such.
Peter Kyle
It is important to note that we are leaping straight from a hypothetical, in which a woman with dementia is trying to climb over a fence, to court. However, between those two stages we have the first responders. Having experienced the training, care, compassion and expertise of the frontline responders in the prevention team of Sussex police, I would find it extraordinary if a frontline responder could not tell the difference between these scenarios, or certainly determine whether there is enough evidence to pursue the kind of prosecution that the Minister is describing.
Alex Chalk
We have to be very clear about this. If an individual does not have that defence, considering the elements of section 76, we would be left with a person who is apparently being caused some distress—as would be evident to the first responder, or indeed to a police officer, who might have to effect an arrest—and the distress would appear to have been caused by that person’s liberty having been restricted. In those circumstances, unless the individual has the defence that they were exercising proper control in the interests of the other person, they are at risk of being arrested and prosecuted. That would be a serious concern, would it not?
I should also add—I do not think this point is controversial—that there is an exemption within section 76 concerning under-16s. In other words, where people are in a position of responsibility for somebody who is under the age of 16 and may have to inhibit that person’s liberty, that is considered perfectly understandable and justified. The argument would therefore be this: why is it that in circumstances where, sadly, an individual is at risk and vulnerable, it should not be open to that carer—who everyone accepts is loving, decent and caring—to say that this was in the interests of the individual?
I accept the hon. Gentleman’s premise that it is possible that some people would seek to advance an unmeritorious defence. That is absolutely right, but I respectfully say to him that when he says, “The courts let them get away with it,” he is unfairly labelling the courts. In my opinion, the courts have shown themselves well able to see through a spurious defence. The carer who seeks to try it on and to abuse this proper defence will be given short shrift by a bench of magistrates, or indeed by a jury. We should trust juries and courts to do justice in each case.
Alex Chalk
No, it is not the same at all. If the hon. Lady will listen for a moment, the point is that there is, on the face of a statute, a defence that the jury can consider. They get to consider it only if a judge is satisfied that there is a prima facie defence—in other words, if what the defendant is advancing is patently and transparently unmeritorious, it may well not even go to a jury. A judge might say, “This is such a load of old nonsense that it doesn’t even cross the threshold for a jury to decide.” It is simply where there is a prima facie case. We should trust juries to say, “Is there something in that, or is there not?” It is not for us to adjudicate in every single case. Trust juries; trust the people. It is different from the point that the hon. Lady was making about rough sex, because there was a lacuna in the law. Our job is to fill the lacuna and then leave it to juries, who have shown for many centuries that they are well placed to do justice in a specific case.
I will make a final point on this issue, because I do not want to dwell too long on it. If the policy were not in place, there is a danger that the same people that the hon. Member for Hove quite properly wants to stand up for, and who we want to stand up for—namely, people with disabilities—could be disadvantaged if people take the view of, “Hold on a moment. By doing what I think is genuinely and objectively in the best interests of an individual, I am at risk of conviction, punishment and disgrace. Do you know what? Why on earth should I be doing that? Why should I be putting myself at risk in that way.” We have to ensure that we do not inadvertently, and despite the best intentions, find ourselves making life more difficult for the people we want to support.
Peter Kyle
The Minister is a very effective advocate, but the bottom line is that all the agencies representing frontline victims and survivors are speaking with unanimity. They want the law changed and the new clause struck off, because they say it is affecting their service users. There is no organisation out there working with service users that is defending the clause; it is only him.
Alex Chalk
With respect, that is not a fair characterisation. Parliament had the opportunity to consider the Bill in 2015. It went through Committee stage in this House, and it went through the House of Lords. It was Parliament’s will that it should exist. What is now being suggested, less than five years later, is that we should sweep away something that was there in the past. In my respectful submission, the case for that has not been made.
Of course, all matters are considered with care, particularly matters of this kind of sensitivity, but we have to be alive to the fact that sometimes, if we remove such a defence, we risk making the position far worse for the people we want to protect. We see that time and again when people are concerned that if they are not given the opportunity to advance their defence and simply to say, “Listen, you decide whether I have got this wrong.” If they do not have the option at least to put forward their defence so that 12 people who have no prior knowledge can make a fair decision, it would be unfair on them and would risk unfairness to people with disabilities.
The final point that I want to make is that the equivalent domestic abuse offence in Scotland contains a similar defence, under section 6 of the Domestic Abuse (Scotland) Act 2018, as does the proposed new domestic abuse offence in Northern Ireland, which is clause 12 of the Domestic Abuse and Family Proceedings Bill, currently before the Northern Ireland Assembly. This is not an outlier provision, I respectfully submit.
Notwithstanding the very proper concerns expressed by the hon. Gentleman, I invite him to consider that, set in a wider context, seeking to exclude the provision is not necessary. In the light of my explanation, I invite him to withdraw the new clause.
Peter Kyle
With your permission, Mr Bone, may I speak without a jacket on in this stuffy weather? I do not want to offend your sensibilities.
Peter Kyle
Thank you, Mr Bone.
We need to make progress today, and we have a lot to get through. I will withdraw the new clause, in the clear hope that, as the Bill progresses through Parliament and goes to the House of Lords, they may have more time to spend on such matters. They might be able to have more consideration and ventilation of the debate, which we were too speedy on today. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 28
Controlling or coercive behaviour offence
“(1) In Part 5 (protection of children and others) of the Serious Crime Act 2015, section 76 (controlling or coercive behaviour in an intimate or family relationship) is amended as follows.
(2) For subsection (2) substitute—
‘(2) “Personally connected” has the meaning set out in section 2 of the Domestic Abuse Act 2020.’
(3) Omit subsections (6) and (7).”—(Jess Phillips.)
This new clause would ensure that those who were previously personally connected are protected from coercive and controlling behaviour (including economic abuse) that occurs post-separation.
Brought up, and read the First time.
Jess Phillips
I beg to move, That the clause be read a Second time.
I also do not have a jacket on, but I am not compelled to wear one—I think the only uptick of being a woman in this place is that we can wear whatever we want; it is one of the benefits. I also have trainers on.
Alex Chalk
I am sure that hon. Gentleman does look at it.
The 1997 Act was amended to include section 2A, which deals with the “Offence of stalking”. Section 2A says:
“A person is guilty of an offence if… the person pursues a course of conduct… and… the course of conduct amounts to stalking.”
Then, however—this is what I think is brilliant—the 2012 Act goes on to look at the sorts of behaviour that might constitute stalking. Subsection (3) says:
“The following are examples of acts or omissions which, in particular circumstances, are ones associated with stalking… following a person… contacting, or attempting to contact, a person by any means… publishing any statement”
relating to that person. It continues:
“monitoring the use… of the internet… loitering in any place… interfering with any property in the possession of a person… watching or spying on a person.”
The reason why that is important is that it sets out the sorts of behaviour that could be stalking, but it is not exhaustive.
The reason why I say of all that is that if someone at the end of a relationship, when the two people are no longer living together, engages in a course of conduct that, to the man or woman on the Clapham omnibus, is a bit like stalking—whether or not that means trying to exert economic control—there is the potential for offences there, and I will come on to them while I am still sympathetic to the point made by the hon. Member for Birmingham, Yardley.
I am particularly mindful of that because in my own county of Gloucestershire—the Under-Secretary of State for the Home Department, my hon. Friend the Member for Louth and Horncastle has already mentioned this—Hollie Gazzard was brutally murdered. Those who have been victims of stalking say that it is like murder in slow motion, because of so much of what precedes it in terms of stalking behaviour. My point is that that can include economic abuse as well.
However, Surviving Economic Abuse argues further that stalking and harassment offences, although relevant, are not designed specifically to prosecute the sort of behaviour we are discussing. I accept that, but it is also fair to point out that, because of the way that stalking offences are drafted, it is not beyond the wit of man or woman to conceive of how they could be included, based on the facts of a specific case.
In addition, the new statutory definition of domestic abuse includes ex-partners among those defined as “personally connected” and does not have a “living together” requirement. Therefore, an amendment to the controlling or coercive behaviour offence could be seen as conforming within the definition in clause 1.
However, the case is not clearcut, given that the offence is still relatively new, and there is currently limited data available in support of a change. Because the case is not clearcut, the Government committed, in response to our 2018 consultation on domestic abuse, to conduct a review of the offence, as the hon. Lady is aware.
Peter Kyle
We are using the term “migrant woman” to describe all the people here. Should we not place on record that they are not migrants first and foremost? They are mothers, neighbours and the people we pass in the street and talk to when we are on public transport. They are colleagues in workplaces, universities and places of education. They are fully formed human beings integrated into our world here and they are also people who come from other countries.
Jess Phillips
Absolutely, I have absolutely no doubt that today in this building there is somebody serving us coffee or doing something of service who has no recourse to public funds and is affected by the problem I am talking about. My hon. Friend is exactly right. They are our careworkers and NHS workers. They are the students who keep our universities in money. They are the people who serve us every day. They are our family members. They are people who deserve help when they are harmed. They are taxpayers. They are people who give in both effort and resource. They deserve exactly the same as everyone else. If I walked into a police station today, nobody would ask me for my immigration status. Nobody would care. It would not be the thing that they thought they had to care about. They would ask me if I was all right and would treat me as a victim. If I was from Bolivia, they would ask me about my immigration status.
As the hon. Member for Edinburgh West said, we are at the precipice. It is not okay that some people matter and some people do not. It is one thing to try to undo things from the past—to topple statues and try to deal with complex cases from the past—but we are making this law today, and we are not making it for everyone. That is fundamentally wrong.
There are women like Myra—the final case study—who attempted to leave her abusive husband a number of times, having reported her rape to the police. They took no further action and did not refer her to local domestic abuse services. After three years, she made the decision to find safety and leave. She had no recourse to public funds, and contacted 10 refuges, which were unable to offer assistance due to the NRPF condition. During that time, she was forced to remain at home with her husband and faced further abuse, which took its toll on her mental health. She said:
“many times, I thought of giving up, many times.”
Those case studies all come from the Women’s Aid “Nowhere to Turn” report.
I can already anticipate that the Government’s response to what I said will be to point out the ongoing Home Office internal review into NRPF. I am sure the Minister will mention how the Government have recently announced £1.5 million for a pilot fund to cover the cost of support migrant women with NRPF in refuge in order to better assess the level of need for that group of victims to inform the spending review decisions on a longer-term basis. Both those proposals fail to appreciate the urgency and seriousness of the risk of abuse and destitution that abused migrant women on non-spousal visas face.
Peter Kyle
Main Page: Peter Kyle (Labour - Hove and Portslade)Department Debates - View all Peter Kyle's debates with the Home Office
Domestic Abuse Bill (Twelfth sitting)
Peter Kyle ExcerptsWednesday 17th June 2020
(4 years, 4 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 17 June 2020 - (17 Jun 2020)
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
Before we adjourned for lunch, I was speaking about county lines gangs, to demonstrate how vulnerable people can continue to be manipulated and exploited for the aims and advantages of those who are doing the manipulation. When we talk about county lines gangs, most people think of boys and young men being recruited, but we are now getting stories about girls being recruited—not necessarily to do the drug running, although they can be used by the perpetrators to conceal weapons and drugs, but to launder the proceeds of crime.
The perpetrators, the gang leaders, are very deliberately recruiting young women because they want to use their bank accounts, and they do so on the basis that because someone is a girl or young woman, the authorities will not trace her, track her or be on the lookout for her as much as they would be—they say—for young men. They also tell the girls, as part of their manipulation, that even if they do get caught, the consequences, because they are girls, will not be so bad for them.
I say that because in the context of the argument about manipulation and how perpetrators can use and skew systems to their advantage, I am highly cynical when it comes to the ability of perpetrators to do that. That is one reason why, when we talk about how careful we have to be about how the system is constructed, so that it cannot be misused, I do so very much with those cynical perpetrators in mind.
I will return to the fundamental principle of providing support, on which we all agree. It is why, as part of our journey to discovering the scale and extent of the problem but also the most effective ways of helping migrant women or people with no recourse to public funds, we have allocated £1.5 million to a pilot project to support migrant victims to find safe accommodation and services. In addition to offering emergency support, the pilot will be designed to assess the gaps in existing provision and gather robust data that will help to inform future funding decisions. The review that we have been carrying out and are due to publish, or aim to publish, by Report stage, has highlighted that there are significant gaps in the evidence base for migrant victims who are not eligible for the destitution domestic violence concession.
Since 2017, we have provided more than £1 million from the tampon tax fund to support migrant victims with no recourse to public funds. That has helped to deliver much-needed support for a number of individuals, but regrettably the funding has not provided the necessary evidence base to enable us to take long-term decisions. The evidence is at best patchy as to the kinds of circumstance in which support is most needed, how long victims need support, what kind of support works best and how individuals can leave support to regain their independence. That demonstrates a need for further work to ensure that we have a strong evidence base from which we can make sound decisions, and that is what the pilot fund is for.
Peter Kyle (Hove) (Lab)
May I ask the Minister to clarify her comments? Some people could interpret them to mean that the evidence not being there is a reason not to provide any service for some people, whereas some service might be provided for some people by the pilot. Can the Minister clarify that the Government will look at how they can give as much provision for as many people as possible until we are able to get the evidence to better target it going forward?
Victoria Atkins
I very much appreciate the way in which the hon. Gentleman raised that. We have systems in place at the moment. I hope that, particularly on the topic of legal aid, I have been able to provide examples of women who were not eligible for DDVC getting access to legal aid support. We accept that there is more to do. We are coming at the matter with an open mind and an open heart. We want to get the evidence, so that in due course we can put in place the systems that will provide the best support. That, as well as helping people in their immediate circumstances, is the intention behind the pilot project.
I turn now to the matter of immigration control. We believe that lifting immigration controls for all migrant victims of domestic abuse is the wrong response. Successive Governments have taken the view that access to publicly funded benefits and services should normally reflect the strength of a migrant’s connections to the UK and, in the main, become available to migrants only when they have settled here. Those restrictions are an important plank of immigration policy, operated, as I have said, by successive Governments and applicable to all migrants until they qualify for indefinite leave to remain. The policy is designed to assure the public that controlled immigration brings real benefits to the UK and does not lead to excessive demands on the UK’s finite resources, and that public funds are protected for permanent residents of the UK.
Exceptions to those restrictions are already in place for some groups of migrants, such as refugees or those here on the basis of their human rights, where they would otherwise be destitute. Those on human rights routes can also apply to have their no recourse to public funds condition lifted if their financial circumstances change. Equally, migrant victims on partner visas can already apply for the destitution domestic violence concession, to be granted limited leave with recourse to public funds.
However, lifting restrictions for all migrant victims would enable any migrant, including those here illegally, to secure leave to remain if they claim to be a victim of domestic abuse. For the reasons I have set out, we believe that the provisions in new clause 35 would be open to abuse and undermine the legitimate claims of other migrant victims and the public support on which our immigration system relies.
Peter Kyle
Am I right in thinking that the argument my hon. Friend is trying to make is that this is the point in the Bill where evidence rubs up against raw politics. That is the problem. People who have submitted evidence, including verbal evidence, to this Committee and frontline practitioners have said one thing. The evidence is there. The Government say that they like to view and take into account evidence, but the politics is the barrier here.
Jess Phillips
I think it is. I do not get any uptick in sticking up for this group of people because migrant communities are not allowed to vote. People have seen a problem and they are trying to fix it. It is as simple as that. On the issue of leave to remain, I hear what—
Jess Phillips
Okay. That is absolutely fine. I was about to say to the Minister that I hear what she says about the concern that we might let a few too many in the country. I will take the issue up on Third Reading and speak about it every day until we get to Report and I will ensure that people speak about it in the Lords.
The Minister has probably never taken a call in a refuge and had to tell someone that they could not come because they had no recourse. She can say that I speak with my heart and not my head, but I have had to use my head to turn women away. I have had to have women’s children removed from them.
I do not act as an emotional being; I am emotional about the right thing to do. We are here to protect victims of domestic violence. We do not expect to ask them which countries they have travelled from when they present. I will take away what the Minister says about possible confusion. The amendments that will be laid before the House will be clear that, just as for those on spousal visas, there is no guarantee whatever of indefinite leave to remain, as the Minister well knows, in the scheme.
In fact, not everybody gets indefinite leave to remain. The data collected centrally is widely available. All we ask is that for a period everybody will be able to access support and be given a fair chance to make an immigration application. It is as simple as that. I do not want to stand here and let it pass. The point still stands whether we want to call them illegal or whether we want to talk about which particular visa they might have. If anyone does not have asylum accommodation in their constituency, they are free to come to mine to see whether they would like to put victims of domestic violence in it. It’s really cracking.
There will be people exactly as I have outlined. It does not matter what sort of visa they are on. As I have said, there will be people who we come across every day to whom we are currently saying, “This Bill isn’t for you. This Bill doesn’t help you; I am sorry you got beaten up, but you are on your own.” That is the reality of this law, until it is changed. I will do everything I can to change it and I have a better chance of doing that in front of the whole House—either this one or the other place. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 30
Use of bail in domestic abuse cases
“(1) Section 34 of the Police and Criminal Evidence Act 1984 (limitations on police detention) is amended as follows.
(2) In subsection (5)(a) for the word “applies” substitute “or subsection (5AB) applies”.
(3) In subsection (5)(b) for the word “applies” substitute “or subsection (5AB) applies”.
(4) In subsection (5A) insert after the words “applies if”, “subsection (5AB) does not apply and”.
(5) After subsection (5A) insert—
“(a) This subsection applies if—
(i) it appears to the custody officer that there is need for further investigation of any matter in connection with which the person was detained at any time during the period of the person‘s detention; and
(ii) the offence under investigation is an offence that amounts to domestic abuse as defined in section 1 of the Domestic Abuse Act 2020;
(b) save that the person shall be released without bail if the custody officer is satisfied that releasing the person on bail is not necessary and proportionate in all the circumstances (having regard, in particular, to any conditions of bail which would be imposed and to the importance of protecting the complainant);
(c) before making a determination to release without bail or a determination as to any conditions of bail to impose, the custody officer shall conduct an assessment of the risks posed by not releasing the person on bail (including, in particular, to the complainant);
(d) before making a determination of a kind referred to in paragraph (c) the custody officer must inform—
(i) the person or the person’s legal representative and consider any representations made by the person or the person‘s legal representative; and
(ii) the complainant or the complainant’s representative and consider any representations made by the complainant or the complainant’s representative; and
(e) an officer of the rank of inspector or above must authorise the release on bail (having considered any representations made by the person or the person’s legal representative and by the complainant or the complainant’s representative).””.—(Peter Kyle.)
This new clause reverses the presumption against use of bail in the 2017 Act for these categories of offences, and introduces a risk assessment with prior consultation with the parties.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss new clause 31—Initial bail period for domestic abuse cases—
“(1) Section 47ZB of the Police and Criminal Evidence Act 1984 is amended as follows.
(2) After subsection (1)(a) insert—
“(ab) in a DA case, the period of 3 months beginning with the person‘s bail start date, or”
(3) After subsection (4)(c) insert—
“(2) A “DA case” is a case in which—
(a) the relevant offence in relation to the person falls within the definition of “domestic abuse” in section 1 of the Domestic Abuse Act 2020, and
(b) a senior officer confirms that sub-paragraph (i) applies.””
This new clause provides for an extension that would maintain bail for the duration of the pre-charge period, and remove the need for extensions, in most cases. This will also reduce the demand on police forces caused by processing bail extensions.
Peter Kyle
Good afternoon, Mr Bone. These two new clauses concern how bail is used in domestic abuse cases as a result of the changes to the bail regime as enacted in the Policing and Crime Act 2017.
As reported in the Joint Committee on the Draft Domestic Abuse Bill, the Policing and Crime Act 2017 restricted the length of pre-charge bail to 28 days in most circumstances and mandated that extensions could be authorised by police officers, but only if the officer authorising the extension had reasonable grounds for believing the investigation was being made “diligently and expeditiously.” That was a legislative response to cases such as that of broadcaster Paul Gambaccini who was repeatedly released on bail for more than a year while being investigated, but then subsequently cleared of all charges and not charged with anything at all.
We can contrast the scrutiny that that Bill received with that on this Bill, as it was reported to the Joint Committee that
“the consultation prior to the 2017 bail reforms did not hear from any women’s organisations, or victims’ groups, and that only policing bodies, organisations representing suspects and defence lawyers participated.”
Though well-meaning and made in response to a legitimate cause where pre-charge bail had been misused, the changes have had a devastating impact on victims of domestic abuse, as the police have drastically reduced the use of bail for perpetrators accused of rape and domestic violence, which has put survivors at an increased risk, as the alleged offender is being released without any conditions. That point was reinforced in the Joint Committee by Deputy Chief Constable Louisa Rolfe of the National Police Chiefs’ Council, who agreed that,
“the reduction in pre-charge bail in domestic abuse cases had been significant”
and, more worryingly, told the Committee,
“that it could be difficult to convince a judge of the need for bail when a case progressed to court or if he or she had not been on police bail.”
A 28-day initial grant of bail is simply not enough time for an already stretched police force to gather the plethora of evidence needed in most domestic abuse cases. In evidence to the Joint Committee, Deb Smith of the Police Superintendents Association said:
“To get a charge on a domestic abuse case, there clearly has to be a significant amount of evidence gathered. That is almost always going to be nigh-on impossible in the first 28 days, even if somebody is released on bail. Then obviously we go to the superintendent’s extension for the three months, and even that is a challenging timeframe in which to get all the evidence required to satisfy a charge—third-party material, mobile phone records and so on.”
Once again, I find myself quoting the safeguarding Minister, because she herself admitted that, in the case of pre-charge bail:
“It is almost as though the pendulum has swung the other way, and we need to get it back in the middle by ensuring that for cases where it is appropriate to go beyond 28 days, people are being released on pre-charge bail with conditions as necessary and proportionate.”
It is encouraging that the Government have admitted faults with the current regime and I acknowledge that change has been promised, with a preliminary consultation on proposals for reviewing pre-charge bail legislation having just closed on 29 May. However, considering the opportunity offered by the Domestic Abuse Bill—it is right here before us and we know what the problem is—I do not think survivors and people at risk should have to wait for a possible police protection and powers Bill for the changes to appear.
I hear the Government’s argument that there are risks associated with making piecemeal changes to the Police and Criminal Evidence Act 1984 through the Domestic Abuse Bill. However, the way in which the changes in the 2017 Act have affected domestic abuse victims must be restated. The Government’s own figures show that in the first three months of the new law, use of bail conditions in domestic abuse cases dropped by a staggering 65%.
New clause 30 would reverse the general presumption against bail and require a risk assessment by officers in cases where there are allegations of domestic abuse on the impact of imposing or not imposing bail. It strongly mirrors the Home Office’s proposals on pre-charge bail and would therefore not conflict with the eventual legislative outcome of the wider Home Office review.
New clause 31 is a simple amendment that would extend the initial bail period in domestic abuse cases from 28 days to three months. We know from the police’s testimony to the Joint Committee that the 28-day limit is particularly problematic in domestic abuse cases. Increasing it to three months would reduce the burden of bureaucracy created by bail extensions in domestic abuse cases and make bail a more workable tool for the police. It would avoid the situation that currently arises, where bail is lifted after 28 days and victims find it difficult to obtain a non-molestation order without a recent incident, leaving them without any protection at all. Three months on bail is very different from the indefinite bail that existed before the 2017 Act, so the new clause would address the legitimate concerns that led to that legislation being enacted.
I urge Ministers to consider both new clauses in the context of the immediate relief they could offer domestic abuse survivors. It is reassuring that the Minister committed to the inclusion of victims of domestic abuse in the statutory guidance, but I urge Members to take advantage of the opportunity we have before us. We know that we are heading into a period when both Houses of Parliament will be gridlocked with legislation. Despite the potential extension of the parliamentary terms and revocation of recesses, we are heading into a period when the House will be jam-packed with legislation. As we head towards 31 December and our leaving the European single market and customs union, it is certain that next year will be an even heavier legislative period than this one. We have a Bill in front of us, we know what the problem is and there is a simple solution—please, Minister, do not make us wait.
Victoria Atkins
I say at the outset that I have sympathy with the hon. Gentleman’s position. We are conscious of the unintended consequence of the well-intentioned reforms to pre-charge bail in 2017. We are committed to ensuring that the police have the powers they need to protect the public, and that our criminal justice system has at its heart the welfare and best interests of victims.
Over the past few years, crime has become more complex, and the police are dealing with more digital evidence and new challenges. The Policing and Crime Act 2017 introduced a number of reforms to pre-charge bail to address legitimate concerns that suspects were spending too long under restrictive conditions, with no oversight. Indeed, the hon. Gentleman gave an example of that. The 2017 reforms allowed individuals to be released under investigation and introduced a presumption in favour of release without bail, unless its use was considered necessary and proportionate. They limited the initial imposition of pre-charge bail to 28 days. I must emphasise that the police can still use pre-charge bail when it is necessary and proportionate to do so, and they have our full support in that.
The National Police Chiefs’ Council has issued guidance highlighting that police should use pre-charge bail when there are risks to victims and witnesses, and the need to regularly review cases where such suspects are released under investigation.
Victoria Atkins
Obviously, I am concerned to hear that. I take the point about risk assessment and will raise it with the NPCC lead. The hon. Member for Hove referred to the forthcoming police powers and protections Bill, but in the interim I very much want that to be considered.
We have worked closely with policing partners and other partners across the criminal justice system to track its implementation and monitor its impact, and we know that the use of pre-charge bail has fallen significantly. We have listened carefully to these concerns, and in November, as the hon. Gentleman said, we announced a review of pre-charge bail to address concerns raised about the impact of current rules on the police, victims, those under investigation and the broader criminal justice system. We launched a public consultation in February, which closed on 29 May. We received more than 1,000 responses, which we are analysing before deciding how best to proceed.
However, I very much take the point about the needs before the police powers and protections Bill is introduced, but our concern is that we cannot deal with this in a piecemeal, offence-specific manner; we have to take a holistic approach to changing the pre-charge bail system. This Bill is not the correct vehicle for that but, as the hon. Gentleman said, the police powers and protections Bill announced in the Queen’s Speech may well be.
Peter Kyle
I need to put something on the record. It is always ideal to look at these matters in the round, in the holistic way that the Minister mentions. However, when we see an attack in public, outside, suddenly the Government find the ability to review things, such as early release programmes, and to introduce very specific pieces of piecemeal legislation, if I may describe them in those terms. The Bill is before us. We cannot wait any longer. We believe that every life matters, and we think the fact that victims out there feel threatened by this should be power enough to force a specific change here until we get that holistic report and legislation that she seeks.
Peter Kyle
I am grateful to the hon. Lady for that contribution. She should never apologise for sharing the experience that she has gained outside this place and brings in here; it is an asset to our deliberations, not a hindrance.
I agree completely. In fact, I was quoting the Minister when I mentioned the now infamous pendulum. I think we all agree that the pendulum has swung the other way. We must always have consideration for the basic right of liberty, including for alleged perpetrators and defendants, which is why getting bail and bail conditions right is essential. What we are talking about here are conditions, not liberty—the conditions on which people are granted liberty.
The Minister’s main concern, if I interpret it correctly, is that new clause 31 could have unintended consequences on other parts of the bail system. Subsection (2) states:
“After subsection (1)(a) insert—
‘(ab) in a DA case, the period of 3 months beginning with the person’s bail start date, or’”.
Subsection (3) continues:
“After subsection (4)(c) insert—
‘(2) A “DA case” is a case in which—
(a) the relevant offence in relation to the person falls within the definition of “domestic abuse” in section 1 of the Domestic Abuse Act 2020’”.
I fail to see how that could have an impact on other crimes. It is very specific. As I say, I understand why Government Ministers want to deal with the challenge that was caused by the Policing and Crime Act 2017 holistically, but we have a specific fix for a specific challenge in front of us now. I believe this would lead to a better piece of holistic legislation, because it would provide a workable template for it to be enacted down the line.
I will not push the new clause to a Division now but will keep this question open. The Minister intimated several times that she would welcome further scrutiny of the clause. I hope that this gives her the opportunity to reflect on this challenge and come up with her own fix for it, perhaps on Report or Third Reading. I do not believe that victims of domestic abuse should continue to suffer any longer from the uncertainty that would be created by this pernicious eventuality. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 32
Serving a court order on a person who has been subject to domestic abuse and is residing at a refuge
“(1) If a court order is to be served on a person [P] who has been subject to domestic abuse as defined in section 1 of this Act and who is residing at a refuge, the court order—
(a) must not be served on P at the residential address of the refuge, except if a court has ordered that it can be in the circumstances set out in subsection (3); but
(b) can be served on P at the refuge’s office address or by an alternative method or at an alternative place, in accordance with part 6 of the Family Procedure Rules 2010.
(2) The address of the refuge in subsection (1) shall not be given to any individual or third party without the express permission of the court.
(3) Where attempts to serve the court order by the alternative means referred to in subsection (1)(b) have been unsuccessful, an application may be made to the court to serve the court order on P at the refuge’s residential address.
(4) An application under subsection (3) must state—
(a) the reason why an order can only be served at the refuge’s residential address;
(b) what alternative methods have been proposed and the consequences; and
(c) why the applicant believes that the order is likely to reach P if the order is served at the refuge’s residential address.”—(Jess Phillips.)
This amendment seeks to ensure that, where a victim of domestic abuse is residing in a refuge, the address of that refuge cannot be revealed as part of a service order or location order without express permission of the court.
Brought up, and read the First time.
Jess Phillips
I beg to move, That the clause be read a Second time.
This new clause arose out of cases that occurred a number of weeks ago, which highlighted something frightening. Specialist domestic violence refuges have supported hundreds of thousands of people over many years. They are life-saving, provide sanctuary, and are established specifically to meet the needs of women and children who need refuge. In most cases, the confidentiality of a refuge is crucial for the safety and wellbeing of those who stay there, and I cannot express to Members how seriously refuges take their confidentiality. Every single person who lives in a refuge signs a licence agreement that says that if they tell somebody, they have to leave, and enforcing that rule when it is broken is heartbreaking.
The Bill offers a golden opportunity to ensure that there is legal clarity about the nature of refuge provision, including the key elements that are necessary to preserve their integrity. At present, it is not explicitly clear that refuge residential addresses and the identity of those who work for a refuge must remain confidential, so that must change. Service of family court orders on families in refuges, particularly location orders, is often applied for by fathers when mothers and children have fled the family home to refuges following allegations of domestic abuse. The family courts use tipstaffs and the police to locate the mother and children in refuges, even though the address of those refuges is not publicly available.
Once they are located, the refuge is usually ordered to provide its address directly to the court to facilitate the service of court orders on mothers. Often the court order explicitly names the refuge and its manager, which is intimidating and could result in them becoming identified. Family courts usually order the police to attend the refuge’s residential address to serve the order on the mother. This causes upset, anxiety and distress to the mother who is served with a court order, and to the other women and children living in the refuge, who have reported feeling retraumatised by the process. Women who experience a number of intersectional inequalities, such as race, language barriers and insecure immigration status, have reported receiving a heavy-handed response from the police, being unable to understand what the police are saying, and feeling that they are being treated as criminals.
In at least one case that I have heard of in the past few weeks, a mother and child were located and stalked as a result of their refuge’s residential address being disclosed to the court. They had to move to two different refuge addresses, and then the father abducted the child and took them abroad. In another case, the police served a family court order on a vulnerable mother who does not speak English and sought safety with her two children. The mother found the experience degrading and humiliating. Concerns arose in that case that the father had discovered the family’s location, and as such the mother and children had to be moved on to another location.
It is acceptable that family court orders must be served on mothers, but the current family judicial practice is not acceptable, as it breaches women and children’s rights to a safe family life and a private life under article 8 of the European convention on human rights. The approach adopted by family courts is haphazard and inconsistent, with much depending on the judge’s approach to the case before them. Many judges have had no training on domestic abuse.
The situation I have outlined could easily be avoided by ensuring that refuge addresses are always confidential and that family court orders are served by alternative means, as per the family procedure rules 2010. A simple amendment to those rules would ensure that a consistent approach is adopted by all family judges. If such an amendment is not made, the same poor practice will continue.
It is imperative that this situation is addressed urgently, before irreparable harm is caused. I have therefore tabled this new clause, to prevent the service of family court orders at refuge residential addresses, and to ensure that refuge residential addresses and the identity of refuge workers remain confidential.
Jess Phillips
I will withdraw the new clause, and I am heartened by the fact that the hon. Member for Cheltenham, who is no longer in his place, has spoken to the divisional lead in the family court. This is one of those situations where there may very well be regulations in place to allow the outcomes we want, but something is still going wrong, and an assessment and a change in this area is needed.
I understand the deep concerns that the Under-Secretary of State for the Home Department, the hon. Member for Louth and Horncastle, has needing to think through the potential for harm to come to a child, although I would argue that, in refuge services, there would be somebody there in the vast majority of cases. There are quite strict and stringent safeguarding measures in place in refuges to ensure that children come to no harm. However, I am pleased to hear what she said and will speak to the other Minister about it another time, when he is not debating the Divorce, Dissolution and Separation Bill. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 33
Reasonable force in domestic abuse cases
‘(1) Section 76 of the Criminal Justice and Immigration Act 2008 is amended as follows.
(2) In subsection 76(5A) after “In a householder case” insert “or a domestic abuse case”.
(3) In subsection 76(6) after “In a case other than a householder case” insert “or a domestic abuse case”.
(4) After subsection 76(8F) insert—
“(8G) For the purposes of this section “a domestic abuse case” is a case where—
(a) the defence concerned is the common law defence of self-defence;
(b) D is, or has been, a victim of domestic abuse;
(c) the force concerned is force used by D against the person who has perpetrated the abusive behaviour referred to at subsection (8G)(b);
(d) subsection (8G)(b) will only be established if the behaviour concerned is, or is part of, conduct which constitutes domestic abuse as defined in sections 1 and 2 of the Domestic Abuse Act 2020, including but not limited to conduct which constitutes the offence of controlling or coercive behaviour in an intimate or family relationship as defined in section 76 of the Serious Crime Act 2015.”
(5) In subsection 76(9) after “This section, except so far as making different provision for householder cases” insert “and domestic abuse cases”.’ —(Peter Kyle.)
This new clause seeks to clarify the degree of force which is reasonable under the common law of self-defence where the defendant is a survivor of domestic abuse.
Brought up, and read the First time.
Peter Kyle
I beg to move, That the clause be read a Second time.
The new clause seeks to provide domestic abuse survivors the same legal protection that householders have in cases of self-defence. Householders have a legal protection when they act in self-defence against an intruder, but no such protection is available to survivors acting in self-defence against their abuser. At its base, just think what that means: we are able in law to defend ourselves, to a defined threshold, against people who enter our homes and cause us harm, but we are unable to have the same defence against people who already live in the home and seek to cause the same harm. The new clause seeks to rectify that imbalance.
Common-law defences are outdated and ill fitting in the context of domestic abuse, leaving survivors with no effective defence. The Bill presents an opportunity to modernise the law by ensuring that the available legal defences reflect the improved public understanding of domestic abuse. This issue gained prominence with the case of Sally Challen last year, who had her murder charge for the hammer attack she inflicted on her husband downgraded to manslaughter in recognition of the effect of decades of coercive control that she had endured. That judgment reflects our new understanding of how domestic abuse can effect survivors and lead to offending behaviour, so it is only right that the Domestic Abuse Bill recognises this.
Evidence from the Prison Reform Trust shows that the common-law defence of self-defence is difficult to establish in cases of violent resistance by a survivor of domestic abuse against their abusive partner or former partner, as a jury may well conclude that the response was disproportionate without taking into account the long history of abuse. The self-defence proposal would make it easier for victims and survivors to establish that they were acting in self-defence, providing them with an equivalent protection to those using force against an intruder into their home. This is a really important distinction: all we are asking for is the same threshold to be allowed against people perpetrating violence from within the home as that allowed against people perpetrating violence who enter the home.
The definition is also now successfully established in statute. Section 76 of the Criminal Justice and Immigration Act 2008 is the basis for the new clause. Subsection (5A) allows householders to use disproportionate force when defending themselves against intruders into the home. It provides that, where the case involves a householder,
“the degree of force used by”
the householder
“is not to be regarded as having been reasonable in the circumstances as”
the householder
“believed them to be if it was grossly disproportionate”.
[Interruption.] I believe I am being heckled by Siri—I think I might have either turned someone’s lights on or off or ordered their shopping. A householder will therefore be able to use force that is disproportionate, but not grossly disproportionate. A CPS guideline states:
“The provision does not give householders free rein to use disproportionate force in every case they are confronted by an intruder. The new provision must be read in conjunction with the other elements of section 76 of the 2008 Act. The level of force used must still be reasonable in the circumstances as the householder believed them to be (section 76(3)).”
In deciding whether the force might be regarded as disproportionate or grossly disproportionate, the guideline states that the court
“will need to consider the individual facts of each case, including the personal circumstances of the householder and the threat (real or perceived) posed by the offender.”
The new clause would add the same provision and that same test of proportionality of force to cases of domestic abuse.
The Government have gone to great lengths to consider the different forms that domestic abuse can take, but there is not the same recognition of the criminal acts that can result from that abuse. We will go on to discuss the need for statutory defence further, but the new clause would go some way to addressing a difficulty survivors can have in court currently in self-defence cases.
The current Secretary of State was instrumental in providing the increased protection for householders when she was a Back Bencher. The coalition Government put forward their self-defence amendment for householders with the following comments by Lord McNally:
“All we are saying is that if householders act in fear for their safety or the safety of others and in the heat of the moment use force which is reasonable in the circumstances but seems disproportionate when viewed in the cold light of day, they should not be treated as criminals. Force which was completely over the top—grossly disproportionate, in other words— will still not be permitted.”—[Official Report, House of Lords, 10 December 2012; Vol. 741, c. 881.]
The new clause would see the Government apply the same sympathy and understanding to domestic abuse survivors that that Act provides in those situations.
Victoria Atkins
I am very pleased to reply in this debate. I understand that the new clause has been put forward by the Prison Reform Trust, and the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham, had the opportunity to speak in detail about this clause and other matters with representatives from the Prison Reform Trust, the designate domestic abuse commissioner, the Victims Commissioner and others a couple of weeks ago, so this has had his personal attention, as well as mine now.
The new clause aims to give a victim of domestic abuse the same level of protection as those acting in response to an intruder in their home. It has been suggested that that would address a current gap in the law and improve recognition of the links between victimisation and offending. It would, in effect, extend the provisions of section three of the Criminal Law Act 1967 so that a victim could be judged on the facts as he or she believed them to be.
We do, of course, recognise the harm suffered by victims of domestic abuse, and indeed there are several defences potentially available in law to those who commit offences in circumstances connected with their involvement in an abusive relationship. That includes the full defence of self-defence. In addition, the definition of domestic abuse in the Bill should assist with clarifying the wide-ranging and pernicious nature of domestic abuse and alerting all those involved in the criminal justice system to it. It does not seem to us that there is a gap in the law, nor does it seem to us that the situation of a householder reacting, perhaps instinctively, to an intruder in their home is directly comparable to the situation of a person who has been the victim of a pattern of violent and abusive behaviour, including behaviour that would constitute an offence under section 76 of the Serious Crime Act 2015.
The section 76 provisions in the 2008 Act largely cover a very specific circumstance where an intruder, who will in most cases be unknown to the defendant, puts the householder in a position where they are reacting on instinct or in circumstances that subject them to intense stress. By comparison, in domestic abuse cases the response may well not be sudden and instinctive, but one that follows years of physical and/or emotional and mental abuse, where the current law on self-defence and loss of control will allow that to be taken into account. Accordingly, it remains appropriate that the law on self-defence or loss of control be applied, rather than extend this provision to a wider set of circumstances.
Peter Kyle
This may well be probing the bounds of my knowledge of legal expertise, but am I right in saying that, should the protection be defined in law, the Crown Prosecution Service, prosecutors and law enforcement agencies would take that into account before getting to court? Putting this on the face of the Bill could well save survivors of abuse from the process of going to court in the first place.
Victoria Atkins
It is in law. It is good, settled law. The law of self-defence is very much in law. We, in this place, understandably concentrate on statute law, but case law and common law have power in influencing the criminal courts, alongside statutes.
As for the CPS taking account of it, it is obliged to apply the code for Crown prosecutors when considering whether to charge. It is a two-stage process. First, there is an evidential test of whether there is a reasonable likelihood of conviction and, secondly, there is a public interest test. Any prosecutor looking at that test properly who has been alerted to the defence of self-defence, either by way of interview, from conversations with defence solicitors or from police officers at the scene of the crime, should be aware of that. They are obliged to take those factors into consideration when making the decision about whether the evidential and the public interest tests are met. I hope that answers the hon. Gentleman’s concern.
We understand that it is said 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. We understand the rationale of the new clause as being that a jury may well conclude that the response was disproportionate, without taking account of the long history of abuse. The joy of the jury system, as we have already discussed, is that each case is tried on the facts by 12 members of the public, who sit on a jury. I would be loth to try to replace their decision-making process and their responsibilities in statute.
We understand the concerns, but we believe that the existing defence is well settled in law and can help victims in the situations that the hon. Gentleman has described, so I invite him to withdraw this clause.
Peter Kyle
I will withdraw the motion because I believe that other people will want to interrogate this matter in greater detail at other stages of the Bill. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New clause 34
Proceedings under the Children Act 1989
“Proceedings under the Children Act 1989
‘(1) Part I of the Children Act 1989 is amended as follows.
(2) In section 1 (the welfare of the child) after subsection (2B) insert—
“(2C) Subsection (2A) shall not apply in relation to a parent where there has been domestic abuse which has affected the child or other parent.
(2D) Evidence of domestic abuse may be provided in one or more of the forms set out in regulation 33(2) of the Civil Legal Aid (Procedure) Regulations 2012.”
(3) Part II of the Children Act 1989 is amended as follows.
(4) In section 9 (restrictions on making section 8 orders) after subsection (7) insert—
“(8) No court shall make a section 8 order for a child to spend unsupervised time with or have unsupervised contact with a parent who is—
(a) awaiting trial, or on bail for, a domestic abuse offence, or
(b) involved in ongoing criminal proceedings for a domestic abuse offence.
(9) In subsection (8)—
“unsupervised” means where a court approved third party is not present at all times during contact with the parent to ensure the physical safety and emotional wellbeing of a child;
“domestic abuse offence” means an offence which the Crown Prosecution Service alleges to have involved domestic abuse.’”—(Peter Kyle.)
This new clause seeks to change the presumption that parental involvement furthers the child’s welfare when there has been domestic abuse. It also prohibits unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences, or where there are ongoing criminal proceedings for domestic abuse.
Brought up, and read the First time.
Peter Kyle
I beg to move, That the clause be read a Second time.
One of the people we have not mentioned in Committee so far is Sir James Munby. In his time as president of the family division of the High Court, he was a robust defender of it and a vocal proponent of reform. In engagement with and in the processes of Parliament, Sir James was fulsome in his advice and in answering questions. When I was campaigning for reform of cross-examination in the family courts, I had a meeting with Sir James in the High Court. I have said already in Committee that I have no legal training, and that is something I have never apologised for—in fact, at times like this and at that meeting, I found it a benefit. It gave me the opportunity to ask some pretty basic questions of one of the most pre-eminent lawyers in the land.
One thing that I wanted to ask back then was simple. Coming fresh, as I was at the time, to the challenges and the need for reform in the family courts, one thing that struck me, and that I could never ever understand, was the fact that someone who had committed the most horrendous crimes against their partner—battery, rape, serial abuse or coercion, stretching back sometimes years—had parental rights, to the point where they can be exercised time after time, sometimes even from prison, where they have been jailed for inflicting the abuse on the very family over whom they are exerting their rights. I simply could not understand that, and I had the privilege of putting it to Sir James.
We now come to the point in the Bill where we can talk about one particular aspect of that, because this new clause relates directly to the presumption that parental involvement furthers a child’s welfare when there has been domestic abuse. It would also prohibit the unsupervised contact for a parent awaiting trial, on bail for abuses offences, or involved in ongoing criminal proceedings for domestic abuse.
The use of force that is disproportionate but not—forgive me, my notes seem to be out of order.
Jess Phillips
Perhaps the Chair could help me with this inquiry. My hon. Friend is moving the new clause, but I have a specific case that I might want to share with the Committee. Is that permitted, for both of us on the Front Bench to speak? I will not do it now, while he is in the middle of his speech, but I thought I could give him a minute.
The Chair
Interestingly—this is for new Members—in Committee, one advantage is that you can come back again. You are not restricted to one speech. It would be possible for the shadow Minister, Mr Kyle, to speak and to speak again. We can go on all night like this. That is fine.
Peter Kyle
Perhaps the way forward, Mr Bone, is for me to resume my speech. I have now learned the lesson of putting page numbers on my speeches in future.
I draw the Committee’s attention to section 1(2A) of the Children Act 1989, which provides that the presumption that involvement from both parents is in the best interests of the child. That is the nub of the challenge we face.
We have come a long way in our understanding of the relationships within families and in abusive situations since that time. Section 1 of the Children Act states that the court must consider the welfare of the child, and practice direction 12J of the family procedure rules state that the court must consider domestic violence. However, an inconsistent understanding of practice direction 12J and the pro-contract approach taken by the family justice system have seemingly overtaken the need for any contact orders to put the child’s best interests first.
The Victims Commissioner has been persistent and outspoken on this issue. In her written submission to the Committee, she said that one of her major concerns was that the Bill does not
“Create a presumption of no contact or parental responsibility where there has been a conviction, restraining order, findings by the Family Court. This could be rebutted & overturned in exceptional circumstances, but a risk assessment must be conducted first”.
She felt so strongly about this that she wrote to the Home Secretary in October, saying in the strongest possible terms that she saw the need to prohibit unsupervised contact between a parent who is on bail for domestic abuse-related offences for which criminal proceedings are ongoing. In our evidence session just a few weeks ago, she told us that she was
“very troubled by the presumption of shared parenting that seems to trump practically everything else in the family court.”––[Official Report, Domestic Abuse Public Bill Committee, 4 June 2020; c. 63, Q154.]
We created the position of Victims Commissioner and we are in the process of creating the position of a domestic abuse commissioner. We must listen to them when they speak with such clarity and expertise, and when they are so singular in their advice. It would go profoundly against the position that we have given the commissioner to disregard such singular advice.
In one study conducted by Children and Family Court Advisory and Support Service, two-thirds of the 216 children contact cases in the sample involved allegations of domestic abuse, yet in 23% of the cases, unsupervised contact was ordered at the first hearing. I simply cannot see how we can find a way of contextualising that statistic in a way that makes it acceptable—I simply do not understand. The results of that can be tragic: analysis by the “Victoria Derbyshire” show and Women’s Aid showed that between 2006 and 2019, at least 21 children were killed during contact with fathers who were perpetrators of domestic abuse.
The introduction of the presumption of parental involvement has confused the position in cases involving domestic abuse. The new clause would introduce an explicit statutory framework to make it clear that, when there has been an allegation, admission or finding of domestic abuse towards the child or the other parents, the presumption that the involvement of a parent will further a child’s welfare does not apply.
A mandatory restriction for those on bail for domestic abuse offences is necessary, as research conducted by Women’s Aid and Queen Mary University of London found examples in which perpetrators of domestic abuse who were on bail for violent offences against non-abusive parents were allowed into the family courts to argue for contact with their children. In at least one case, unsupervised contact was awarded by the court to the perpetrator, who was on bail at that time.
We have discussed at length the impact that domestic abuse has on children, and the new clause can further that discussion. Child contact is an incredibly sensitive issue. I know that the Government have sought to address it in Committee by extending the flexibility of domestic abuse protection orders and the way in which they can be used by the courts. I ask the Government to reconsider the presumption that parental involvement is beneficial to the child’s welfare, especially in the light of the discussions that we have had on the effects of domestic abuse on children. With this new clause, we are explicitly not saying that no parent, in any circumstance, can have access to their children; all we are doing is removing the presumption that access is good. All we are saying—what we will achieve with the new clause—is that it has to be debated and assessed by the court in neutral terms. Is it good or detrimental to their welfare? That is a debate that should be had in neutral terms in every single circumstance.
As it stands, the presumption is pernicious. It leads to too many children being made vulnerable and too many survivors of domestic abuse being made to feel insecure and threatened. I deeply hope that the Minister can reassure us that change is on the way. I know that we debate and have this to and fro—some arguments have fuller merit than others at times like this—but I deeply hope that he has considered this issue and that he will show flexibility, either now or in the next stages of our consideration of the Bill.
Victoria Atkins
The hon. Members for Hove and for Birmingham, Yardley have set out fully the legal frameworks that exist, and I will not repeat them. I will bring to the Committee’s attention the fact that the current legislation places absolute primacy on the welfare of the child and does not seek to fetter judicial discretion regarding the factors they can take into account when making an order under the legislation.
I appreciate that this is a sensitive and complex issue. That is why the Ministry of Justice last year established an expert panel on how the family courts deal with allegations of risk of harm in private law children proceedings. The panel has considered the issue of parental contact, informed by the over 1,200 submissions of evidence it received. Its recommendations will be published in the coming weeks.
I have no doubt that the hon. Members for Hove and for Birmingham, Yardley, and other members of the Committee, will want to return to this matter once they have had the opportunity to consider the expert panel’s report. On that basis, I invite the hon. Member for Hove to withdraw the new clause.
Peter Kyle
As the Minister expects, I will withdraw the new clause, because we do want to assess that. We want to ensure that this issue gets as much debate between us as possible before the next stage, as well as at the next stage and beyond. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 37
Victims of domestic abuse: data-sharing for immigration purposes
“(1) The Secretary of State must make arrangements to ensure that personal data of a victim of a domestic abuse in the United Kingdom that is processed for the purpose of that person requesting or receiving support or assistance related to domestic abuse is not used for any immigration control purpose without the consent of that person.
(2) The Secretary of State must make arrangements to ensure that the personal data of a witness to domestic abuse in the United Kingdom that is processed for the purpose of that person giving information or evidence to assist the investigation or prosecution of that abuse, or to assist the victim of that abuse in any legal proceedings, is not used for any immigration control purpose without the consent of that person.
(3) Paragraph 4 of Schedule 2 to the Data Protection Act 2018 shall not apply to the personal data to which subsection (1) or (2) applies.
(4) For the purposes of this section, the Secretary of State must issue guidance to—
(a) persons from whom support or assistance may be requested or received by a victim of domestic abuse in the United Kingdom;
(b) persons exercising any function of the Secretary of State in relation to immigration, asylum or nationality; and
(c) persons exercising any function conferred by or by virtue of the Immigration Acts on an immigration officer.
(5) For the purposes of this section—
“consent” means a freely given, specific, informed and unambiguous indication of the victim or witness, by an express statement of that person signifying agreement to the processing of the personal data for the relevant purpose;
“immigration control purpose” means any purpose of the functions to which subsection (4)(ii) and (iii) refers; “support or assistance” includes the provision of accommodation, banking services, education, employment, financial or social assistance, healthcare and policing services; and any function of a court or prosecuting authority;
“victim” includes any dependent of a person, at whom the domestic abuse is directed, where that dependent is affected by that abuse.”—(Jess Phillips.)
This new clause would require the Secretary of State to make arrangements to ensure that the personal data of migrant survivors of domestic abuse that is given or used for the purpose of their seeking or receiving support and assistance is not used for immigration control purposes.
Brought up, and read the First time.