Vol. 809 Wednesday No. 184 3 February 2021

PARLIAMENTARYDEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDEROFBUSINESS

Captain Sir Tom Moore ...... 2155 Questions Music Sector: Working in Europe ...... 2155 Hospitality Sector Minister ...... 2158 National Risk Register ...... 2162 Electricity Supply ...... 2165 Hotel Quarantine for Travellers Private Notice Question ...... 2169 Domestic Abuse Bill Committee (4th Day) ...... 2174

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House of Lords agreement potentially better access to the EU than ourselves, the EU’s next-door neighbour? What steps Wednesday 3 February 2021 are the Government taking to proactively engage with the EU to find a solution to touring arrangements in The House met in a hybrid proceeding. Europe? Having to deal individually with 27 EU countries and even, as in Belgium and Germany, regions within Noon countries does not cut it. It is the last thing that the music sector wants. Prayers—read by the Lord Bishop of Salisbury. Baroness Barran (Con): The noble Earl is right to highlight some of the challenges that now face our Captain Sir Tom Moore brilliant musicians and creative artists. As he knows, 12.07 pm in the UK-EU trade negotiations the EU tabled a proposal for a permanent waiver for short stays covering The Lord Speaker (Lord Fowler): My Lords, before UK and EU citizens that drew on agreements such we begin Oral Questions, I would like to lead the as those with Colombia and the UAE. However, this House in a moment of silence in memory of Captain offer would not have met the needs of touring musicians Sir Tom Moore, who died yesterday. His quiet resolve in the round, nor was it compatible with our manifesto and selfless spirit of public service will never be forgotten. commitment to take back control of our borders. As we pause to remember him and his enduring legacy, Therefore, our starting point is to listen to and work we also remember all those who have died since the start with those in the sector to make sure that they have the of the pandemic. I ask Members to rise for a minute’s information that they need, in a clear and accessible silence. way, so that they can continue their valuable work once Covid restrictions are lifted. The House observed a minute’s silence. Baroness Bakewell (Lab) [V]: My Lords, the countries Arrangement of Business cited by my friend the noble Earl have unilateral Announcement agreements with the EU, which makes these relationships possible. Will the Government now seek their own 12.09 pm new bilateral agreements with the EU and EU member states, separate from the trade agreement, so that they The Lord Speaker (Lord Fowler): The Hybrid Sitting can exempt touring performers and creative people from of the House will now begin. Some Members are here the visa and work permit regulations? in the Chamber, others are participating remotely, but all Members will be treated equally. Oral Questions will Baroness Barran (Con): As the noble Baroness has now commence. Please can those asking supplementary heard me say at the Dispatch Box on several occasions, questions keep them short and confined to two points? we are exploring individual options to try to ease the I ask that Ministers’ replies and answers are also brief. process for our musicians and creative artists, but there are no current plans such as the one that she suggests. Music Sector: Working in Europe Question Baroness Bonham-Carter of Yarnbury (LD) [V]: My Lords, I welcome the dialogue between the Minister’s 12.10 pm department and the industry. Not just musicians but Asked by The Earl of Clancarty professionals from other creative industries rely on touring and now face this extra bureaucracy when moving To ask Her Majesty’s Government what steps between the EU and the UK. Can the Minister say they plan to take to support the music sector with whethermovingequipment—whethermusicalinstruments, (1) touring, and (2) other work, in Europe. scenery, merchandise or artefacts—by truck or cargo will require carnets between Great Britain and Northern TheParliamentaryUnder-Secretaryof State,Department Ireland? The Northern Ireland protocol makes no for Digital, Culture, Media and Sport (Baroness Barran) mention of temporary import/export. (Con):MyLords,theGovernmentrecognisetheimportance of international touring for the whole range of UK Baroness Barran (Con): Given the sensitivities around cultural and creative practitioners. The Secretary of arrangements with Northern Ireland at the moment, if State has committed to creating a DCMS-led working I may, I will double-check and confirm to the noble group to work closely with the sector’s representative Baroness. My understanding is that artists and organisations and other key government departments organisations based in Northern Ireland will not be to assist businesses and individuals as far as possible required to obtain ATA carnets or musical instrument to work confidently in the EU. That group met for the certificates when touring in the EU, because the protocol first time on 20 January. means that Northern Ireland is part of that regulatory environment. The Earl of Clancarty (CB): My Lords, does the Minister find it acceptable that artists from countries Lord Vaizey of Didcot (Con): My Lords, half our across the globe, such as Colombia and the United musicians earn half their income in the European Arab Emirates, have through the standard visa waiver Union. Echoing the noble Earl, Lord Clancarty, I add 2157 Music Sector: Working in Europe[LORDS] Hospitality Sector Minister 2158

[LORD VAIZEY OF DIDCOT] Lord Strasburger (LD) [V]: A year ago, the Creative that Tonga and St Lucia also have visa waiver agreements Industries Minister told the Commons that music with the European Union. Is the Government’s position tours are that Tonga and St Lucia do not have control over their “the lifeblood of the industry”. borders and therefore should now turn their backs on He said: their visa waiver schemes, or will the Government see “It is essential that free movement is protected for artists post sense and pursue a bilateral agreement for a visa 2020.”—[Official Report, Commons, 21/1/20; cols. 56-57WH.] waiver scheme for our musicians? Those are fine words, but what is the reality? The creative arts were completely ignored in the EU trade deal. Baroness Barran (Con): This Government are not One of our stellar export industries has been butchered responsible for any of the visa arrangements for the by this botched negotiation. Why have the Government countries to which my noble friend referred. Werecognise not gone back to Brussels to fix this mess? that additional requirements will need to be met for our cultural professionals to tour and work in the EU. Some member states allow touring without a permit Baroness Barran (Con): I cannot accept the noble and others require a pre-approved visa and/or work Lord’s assertion that these industries were ignored. permit. We are undertaking an extensive programme Our negotiators worked extremely hard to try to put of engagement with our sectors to find the best way forward a proposal that would have benefited both the through. EU and the UK creative sectors and we are disappointed that it was not accepted. Baroness Bull (CB): My Lords, the deal presents challenges across all art forms.The 10-person dance-circus Lord Bowness (Non-Afl) [V]: This issue is much wider company Motionhouse exemplifies this. It is currently than just musicians,although that is clearly extraordinarily negotiating a 56-show tour at 20 venues in 11 EU important. I am amazed we were only having discussions countries. The additional costs of carnets, permits and with the industry on 20 January, because this issue has visas rise to £37,000, on top of new administrative been around for a long time. On 20 December, the costs and in-country taxes. Is the Minister aware that noble Lord, Lord True, told me that the more ambitious the company will also need to monitor any holidays agreement on movement was rejected by the EU. that its dancers take in the Schengen area? If it pushes However, in March last year the Home Office told me: any one of them over the 90 days allowed, it could be “These arrangements are not dependent on whether or not the forced to cancel or refuse bookings. What advice can Government concludes a Comprehensive Free Trade Agreement she offer this company and many like it, so that it can with the EU.” continue to promote UK creativity to the world, as it On 5 May, I was told that it depended on both. My has done for 33 years? question, which I raised in the debate on 8 January was: does this have to be negotiated with the EU or the Baroness Barran (Con): I congratulate the company individual states? If it is the latter, how many of the 27 on what it has achieved over the last 33 years. We in have we approached and how many are we engaged this House are all proud of the work of our creative with in negotiations? colleagues. I advise them to work through their industry bodies to make sure that the department hears of Baroness Barran (Con): To clarify for my noble the issues that they face and can feed them into the friend, our work with the industry did not start on solutions that we are trying to find. 20 January, and I am sorry if I was not clear on that point. The Secretary of State established a new round-table Baroness McIntosh of Hudnall (Lab) [V]: My Lords, group which has met for the first time, but all our work listening to the noble Baroness’s answers today, I have in this area has been informed by feedback from the the uncomfortable feeling that we have gone backwards sector. In relation to my noble friend’s wider points, from where we were a couple of weeks ago, when she I will respond in writing if I may. last answered a Question on this subject in the House. Is she saying that the Government now have no intention The Lord Speaker (Lord Fowler): My Lords, I am sorry, of further engagement with the EU or EU member but the time allowed for this Question has elapsed. states to try to get a better outcome for the many performers and performing arts organisations that are faced with these new restrictions? If so, is that not a Hospitality Sector Minister counsel of despair? Question

Baroness Barran (Con): I hope that it is not a counsel 12.21 pm of despair. As I have said before in the House, there is Asked by Lord Caine scope to return to this issue in the future, should the EU change its mind. We were clear on what we tried to To ask Her Majesty’s Government what plans achieve. That ambitious request was based on advice they have to appoint a dedicated minister for the that we received from musicians and the creative industries hospitality sector. more broadly. We cannot go back from what they have told us that they need. The Government are looking at TheParliamentaryUnder-Secretaryof State,Department whether we can work with our partners in EU member forBusiness,EnergyandIndustrialStrategy(LordCallanan) states to find ways to make life easier for them in the (Con) [V]: Responsibility for hospitality is currently meantime. split between BEIS and DCMS. Both departments are 2159 Hospitality Sector Minister [3 FEBRUARY 2021] Hospitality Sector Minister 2160 working closely together to ensure that the sector’s Lord Callanan (Con) [V]: An unprecedented package interests are strongly represented in government. The of support has been given to the industry; unfortunately power to create a new ministerial post rests with the it is impossible for us to say at this stage when hospitality Prime Minister; however, whatever is decided, we will and entertainment businesses will be able to open safely work to ensure that the sector is in the best possible and therefore it is impossible to have a road map. We place to bounce back from Covid-19 so that it plays a are hoping to set out more details as we go through leading role in the UK’s economic and social recovery. this month and the data becomes clearer.

Lord Caine (Con): My noble friend is well aware of Baroness Blower (Lab) [V]: My Lords, as I am sure the crucial importance of the hospitality sector to our most noble Lords know, the hospitality industry is economy, to employment and to our general quality of worth £150 billion a year to the UK economy. This is life. While I completely acknowledge the unprecedented not counting the wider supply chain. It provides entry-level levels of support provided by this Government, the jobs as well as livelihoods for older workers. With the sector still faces massive uncertainty and challenges prospect of foreign holidays receding, this sector could when we finally emerge from this terrible pandemic. play a major role in the start of a recovery. Therefore, Rather than responsibility being split between different will the Government consider establishing a forum departments, is there not now an overwhelming with employers and unions to help secure the future case for it to be brought under one dedicated senior of the sector and a bargaining council composed of Minister whose sole focus is to work with the entire Unite the Union and industry representatives to find sector on recovery? The sector is asking for this through sector-wide solutions? its online petition, which has now attracted 209,000 signatures. Lord Callanan (Con) [V]: [Inaudible.]—in new solutions, but I very much suspect that only a small minority of Lord Callanan (Con) [V]: I well understand the workers in the industry is actually represented by point my noble friend is making but, as I have said, Unite in particular. We have regular meetings with the BEIS and DCMS work closely together. The split in sector, many of which are small businesses, and I responsibilities reflects the fact that most hospitality totally agree with the noble Baroness’s point that they businesses are SMEs, and BEIS is very experienced in will have an important role to play in the recovery. supporting them. However, hospitality accommodation is more closely aligned with the responsibility DCMS Baroness Thornhill (LD) [V]: VAT and business has for tourism. We are co-ordinating our activities rates have already been mentioned, which are two closely. important issues to be clarified as soon as possible. There have also been several extensions to the Coronavirus Baroness Sanderson of Welton (Con): My Lords, Job Retention Scheme. Is it not time to state clearly throughout the pandemic the Government have recognised that it will be extended until the end of the year, the importance of the hospitality sector and provided particularly for businesses that continue to be restricted funding accordingly. I would be interested to know by either social distancing rules or travel restrictions? why they have so far resisted the idea of a dedicated Given the advice of the WHO, that a 1 metre distance is Minister, as we have for sports and the arts. Will the as effective as 2 metres, are there any plans to consider Government at least consider an interim position, as that as part of the opening-up strategy? suggested in the other place, of an industry recovery Minister, which could then be made permanent if it Lord Callanan (Con): We are keeping matters closely were found to be working well? under review and if there are any extensions, the Government will want to announce them as quickly as Lord Callanan (Con) [V]: As I said in my previous possible. We are dealing with a fast-moving situation, Answer, the responsibility for creating new ministerial but we recognise that the past few months have been positions rests with the Prime Minister. I think he has very challenging for businesses in a wide variety of responded in writing to some of these questions from sectors and hospitality businesses in particular. We have the Liaison Committee on that matter. provided an unprecedented package of support for businesses during this time of crisis. Lord Bilimoria (CB) [V]: My Lords, the hospitality industry has suffered more than just about any other Lord Bassam of Brighton (Lab) [V]: My Lords, I sector over the last ten and a half months, being think the Minister might acknowledge it has been closed for more than half that period. Does the Minister rather more than challenging, because UKHospitality agree that the Government should provide a road map, found that sales in the sector fell by 54% in 2020 and as the CBI—of which I am president—has recommended? now 650,000 businesses fear collapse over the next This would guide businesses on the opening up of the three months. Will the Government bring forward a economy, including whether a tier system is going to comprehensive national plan for the hospitality sector return and the use of rapid mass tests. Does he also as a matter of urgency, so that the recovery is not agree that business support needs to be extended for choked off? Are the Government actively considering the hospitality industry in particular,including extending an extension of the VAT cut to 5% for a further month? the furlough scheme until the end of June and the If a recovery plan is generated by the Government, business rates holiday, so that there is no March cliff can they please consult extensively across all sectors edge? and ensure that nations and regions are considered? 2161 Hospitality Sector Minister [LORDS] National Risk Register 2162

Lord Callanan (Con) [V]: Wekeep all of these recovery Baroness Warsi (Con) [V]: My Lords, I welcome the measures under constant review and if we need to additional support made available by the Government extend them further, we will of course do so. With for the hospitality sector in the form of the closed regard to the recovery plan, it is impossible to say at business lockdown payment and the additional restrictions the moment when we will be able to reopen the sector, grant, but both of these do not appear to support many but we should be able to be clearer on this towards the of those working in the wedding hospitality sector. middle of this month. While I hear what my noble friend has said about planning, could he tell the House what engagement Baroness Pidding (Con) [V]:My Lords, hospitality the Government have had with the wedding sector in matters for so many reasons. It provides jobs and particular? What plans, if any, do they have for allowing opportunities for business and it offers social interaction, weddings beyond the current arrangements, which allow enjoyment and stimulation for our well-being. Does them only in the most exceptional circumstances? my noble friend the Minister agree with me and other noble Lords that we need a clear road map for the Lord Callanan (Con) [V]: My noble friend makes a hospitality industry—a route showing how we can very powerful point. My ministerial colleague, Minister ensure that hundreds and thousands of businesses can Scully, is closely working with the sector to hear its survive through these challenging times and emerge concerns. He has had a number of meetings with the through to the other side? sector—if that is not right I will correct that for my noble friend—to listen to concerns, hear about plans for reopening and do whatever we can to work with it Lord Callanan (Con) [V]: My noble friend is totally in this extremely difficult and challenging time. correct in terms of the importance of the hospitality sector. I can assure her that we will not keep restrictions The Lord Speaker (Lord Fowler): My Lords, all for a day longer than is absolutely necessary, but we supplementary questions have been asked, and we now cannot have a road map at this stage because we do come to the third Oral Question. not have enough data as yet to know exactly how soon it would be safe to reopen. The picture should, I hope, be clearer by mid-February. National Risk Register Question

Lord Dodds of Duncairn (DUP) [V]: My Lords, I 12.32 pm heartily endorse the call of the noble Lord, Lord Caine, Asked by Lord Harris of Haringey for a hospitality Minister, who could co-ordinate the national response right across the United Kingdom. To ask Her Majesty’s Government what plans In the meantime,can I urge the Minister with responsibility they have to introduce annual reporting to Parliament to take on board the need to extend the VAT cut, on the state of national preparedness for top-tier which has applied from July through to 31 March? risks in the National Risk Register. Most hospitality businesses have been closed for a large proportion of that time, and it would not make Lord Harris of Haringey (Lab) [V]: My Lords, any sense that, as they reopen, that cut would not be I draw attention to my interests in the register and beg available to help them through the very grave difficulties leave to ask the Question standing in my name. that they will face. The Minister of State, Cabinet Office (Lord True) Lord Callanan (Con) [V]: The noble Lord made his (Con): My Lords, a range of documents has been point very powerfully,and I will ensure that his comments published that provide an overview of preparedness are passed on to the Chancellor. for major risks, including the national risk register, which provides information on those that have the potential to cause significant disruption. The Government Lord Foulkes of Cumnock (Lab Co-op) [V]: My do not currently have plans to publicly share further Lords, I have had a look at the websites of the two reports on this matter due to the confidential nature of departments that are supposedly responsible for the the information. hospitality industry—BEIS and DCMS—and there is a total of 13 Ministers, including three in the House of Lord Harris of Haringey (Lab) [V]: My Lords, of Lords. Whereas the noble Baroness, Lady Barran, has course there are some preparations that it would not responsibility for ceremonials and the noble Lord be right to reveal publicly,but that is what the Intelligence replying has responsibility for the Ordnance Survey, and Security Committee is for. Covid has already cost not one of the 13 is listed as having responsibility for us more than half a trillion pounds, but at the start of hospitality. Is this not embarrassing for the Minister the pandemic, of the emergency stockpile of 26 million and his department, and what will he do about it? NHS respirators, 21 million were past their use-by dates. Neither the lessons from Exercise Cygnus, nor Lord Callanan (Con) [V]: There are two Ministers— the recommendations from the New and Emerging Minister Huddleston in DCMS and Minister Scully in Respiratory Virus Threats Advisory Group, have been my department—who look after the interests of businesses acted on. To govern is to choose, and the choice was to and others in the sector, so the noble Lord need have leave us underprepared. Is it not in the public interest no fears: the concerns of the hospitality sector are well for Parliament to know how ready we are for the other heard in two government departments. serious risks on the national risk register? 2163 National Risk Register [3 FEBRUARY 2021] National Risk Register 2164

Lord True (Con): My Lords, I have said repeatedly not-for-profit organisations to work together to tackle at this Dispatch Box that lessons from Covid planning, this global health risk, which is a threat to both lives and other planning, will be learned and are being and economies. What action have the Government learned, and will be communicated. I pay tribute to taken and what are their plans, following the recent the work of the noble Lord on the Joint Committee on update of the noble Lord, Lord O’Neill, on his 2016 the National Security Strategy. He will know that the review on this issue? Government regularly respond to requests from that committee on risk assessment to inform its work, and they are currently responding to the recommendations Lord True (Con): My Lords, I do not have a detailed in its report Biosecurity and National Security. response to the O’Neill report, but I can make sure that the noble Baroness gets one. However, I assure her and the House that my right honourable friend the Lord Kirkhope of Harrogate (Con) [V]: I congratulate Prime Minister has personally made clear his commitment the Government on their approach to maintaining the to this Government being in the lead internationally in national risk register, but, following the recent severe the fight against all manner of disease threats. flooding in Yorkshire and elsewhere, is my noble friend satisfied that there is adequate co-ordination between the national risk register and community risk registers Lord Dobbs (Con) [V]: My Lords, the national risk in identifying and meeting such risks? register tries to identify both malicious and non-malicious threats, including misinformation. No one would ever Lord True (Con): My noble friend touches on a very suggest that President Macron’s recent rubbishing of important point. In all candour, I think that one is the vaccination science was malicious, but it most never satisfied with anything; one always wishes to learn certainly counts as misinformation that, unfortunately, from what happens to do things better the next time. plays into the hands and maliciousness of the anti-vaxxers. However, I assure him that, to support their planning As such, might my noble friend, as an ardent European for emergencies, local resilience forums are provided himself, be tempted later today to send Monsieur with full support to develop local resilience plans. They Macron this country’s very best wishes, gently remind have direct contact with the Cabinet Office, should him that the glorious state of France has nothing to specific questions on risk assessment be raised—I assure fear from British success and suggest to him that the the noble Lord that this ongoing dialogue is strong greatest danger facing all of us in this chaotic world is and will be strengthened. ignorance, to which the President has, sadly, unwittingly contributed? Lord Bird (CB): Should the national risk register be about risks that are longer than two years and those Lord True (Con): With his normal ingenuity, my over the next 10, 20 or 30 years? Also, the committee noble friend encourages me to make about five diplomatic that was supposed to look into pandemics was closed gaffes in five seconds. I am certainly not going to fall down six months before the pandemic started: is that into that trap. Those who advise best on disease and not a sign that perhaps we are a bit closed and not on the safety of vaccines are the professionals. The looking out in a real way to the great risks that face us British Government have total confidence in the advice now? Of course, the greatest risk is that of poverty. that they have received on vaccines. Lord True (Con): My Lords, the noble Lord makes a strong point with which I agree, having chaired one Baroness Hayter of Kentish Town (Lab) [V]: My of your Lordships’ Select Committees that looked into Lords,how do we know whether the £5 billion programme longer-term planning. His point is important. The for flood relief is sufficient and proportionate to the NSRA certainly takes into account the impact of risks flood risk? Should not Parliament be able to debate on the most vulnerable in society in its methodology. this and have input into it? The more minds involved, the better our preparedness will be. Lord Clark of Windermere (Lab) [V]: My Lords, emergency planners readily accept that the wider the Lord True (Con): My Lords, the lead government input there is to a national risk register, the better it is, department concerned with flooding is the major one by its very definition. What plans have HMG to extend that should respond on that. Any debate on flood risk that input? in your Lordships’ House would benefit not only the Government but the nation. Lord True (Con): My Lords, as I say, the Government are in contact with a range of people. We have just discussed the issues of flooding and vulnerable groups, Lord Truscott (Ind Lab) [V]: My Lords, the 2020 and, as I said in answer to the first supplementary question, national risk register refers to planning to tackle Covid-19. the Government are obviously in contact with the Joint It says that Committee on the National Security Strategy. We cast “the UK Influenza Pandemic Preparedness Strategy covers strategic our interests and our ears—if you can cast your ears— planning, response and scientific evidence for many emerging widely. infectious diseases.” Is not one of the lessons of the pandemic that the level Baroness Walmsley (LD) [V]: My Lords, Professor of planning—for flu only—was totally inadequate? Is Dame Sally Davies, the UK envoy on anti-microbial it not the case that there was simply no government resistance, is calling on academics, Governments and planning for a coronavirus pandemic? 2165 National Risk Register [LORDS] Electricity Supply 2166

Lord True (Con): The noble Lord may understand we will procure more alternative capacity in the meantime. that Covid was a novel virus that emerged. He under- Taxpayers and consumers will not be affected by the estimates the importance of the pandemic planning changes that EDF recently announced. The investors work. The NSRA was a vital starting point for the are entirely responsible for the project cost and schedule. Covid-19 response. We have discussed that in a number of ways, but there is no doubt that the fast preparation Lord West of Spithead (Lab): My Lords, I thank the of the Coronavirus Act was the result of effective Minister for her Answer. Considering the pressures of planning for a pandemic. Covid, EDF is to be congratulated on what has been achieved on site. If you go to see what has been done, Lord Lucas (Con) [V]: My Lords, one of the great you will know that it is quite amazing. successes of the vaccine programme has been bringing Nuclear will have to provide about 30 gigawatts of our level of manufacturing capability back onshore. electrical power by 2050 if we are to meet net zero. Do the Government have similar plans for generic Large reactors are required for electrical generation medicines, microelectronics and power generation but, of course,AMRs must be developed for co-generating equipment? All these sectors are vulnerable should, heat and hydrogen production. Building Sizewell C is say, China choose to go to war with Taiwan. now a matter of urgency. The Government’s energy White Paper and national infrastructure strategy rightly Lord True (Con): My noble friend raises an important put nuclear at the heart of our net-zero future. point. Again, I am not going to write an industrial strategy The National Security and Investment Bill which is from this Dispatch Box any more than I am a diplomatic going through the House is likely to scupper Bradwell B. policy. We have seen the value of the co-ordinated There is grave concern about the withdrawal of Horizon response to Covid. The creation of a national capacity Nuclear Power’s development consent order application has been greatly to our benefit. I am sure that his for the construction of Wylfa Newydd. Are the comments will be widely noted. Government concerned? This new nuclear reactor is needed now more than ever. There are less than two Lord Scriven (LD) [V]: Having a good risk register months in which to find a solution. is not the same as having a good system of risk management. Despite pandemic being mentioned as a Baroness Bloomfield of Hinton Waldrist (Con): My significant risk in the national risk register, why did Lords, in a nutshell, Wylfa Newydd is probably the best the Government’s response to Covid not follow the nuclear site currently available globally.The Government department of health’s approved contingency plans are very keen to find a developer for it. While we are for dealing with a SARS-type outbreak? naturally disappointed that Horizon is not going ahead, any other developer will need to make a fresh development Lord True (Con): My Lords, as I said before, in my consent order relevant to its own technology. We are judgment—and in that of the Government—it is too keen to discuss new-build projects with the investors early to draw all the lessons from the Covid emergency. of any other companies willing to develop these sites. Some tend to underestimate its novelty and gravity. This Government and all Governments in the world Lord Berkeley (Lab) [V]: EDF blames the massive have sought to respond in the best interests of their cost increases and delays on ground conditions. It has peoples. Wehave drawn on the lessons from the pandemic owned the site for more than 10 years and, if it has not review, as will be seen when any examination or inquiry been able to work out what is under the ground, heaven takes place. help us. More seriously, these cost increases follow similar stories to EDF’s two other projects in Cap de The Lord Speaker (Lord Fowler): My Lords, the time la Hague and Finland. I question whether they will allowed for this Question has elapsed. ever open. Who will fund the cost escalations resulting from these delays and changes—the taxpayer, EDF or the consumer? Somebody will have to. Electricity Supply Question Baroness Bloomfield of Hinton Waldrist (Con): The cost escalation will be entirely borne by the developer. 12.44 pm It is one of the reasons why we will pay £92.5 per Asked by Lord West of Spithead megawatt hour for the electricity produced from this site. Delays have increased costs, but it had already To ask Her Majesty’s Government, further to been announced in 2019 that there was likely to be a the announcement by EDF of a delay in electricity delay and that the increased cost would be £500 million. generation from Unit 1 at Hinkley Point C, what Covid has had a significant effect. In trying to have assessment they have made of the impact of any such workers on a socially distanced site, numbers have delay on energy supply in the United Kingdom. dropped from 3,800 to 2,000. Post-Covid, the figure is expected to get up to 7,000 employees. Baroness Bloomfield of Hinton Waldrist (Con): My Lords, the capacity market is the market mechanism The Lord Bishop of Salisbury [V]: My Lords, the we use to ensure that the volume of power generation price of electricity from Hinkley is remaining unchanged we have available is always sufficient to meet national at £92.50 per megawatt hour, and EDF is expecting demand. If Hinkley Point C looks likely to be delayed, the same profit of more than 7.1% on its investment. 2167 Electricity Supply [3 FEBRUARY 2021] Electricity Supply 2168

Given that, can the Minister explain the points that £21 billion. Will my noble friend consider that the she has just made about how the additional 30% of British Rolls-Royce consortium, which is making small construction costs on the initial £18 billion budget is modular reactors, could offer to produce eight SMRs being absorbed at no cost to consumers? As the price at a cost of only £16 billion, on the same timescale as of electricity from renewables has dropped—with wind EDF was scheduled to produce Sizewell but which it now at £40 per megawatt hour—might not research will no longer be able to? and development into renewals have been a better investment? Hinkley already looks like transitional Baroness Bloomfield of Hinton Waldrist (Con): My technology. noble friend will be aware that EDF is estimating a 20% reduction in cost for using the same technology Baroness Bloomfield of Hinton Waldrist (Con): The that it has been using at Hinkley Point C, which is why truth is that we need a blend of all these technologies we are proceeding with Sizewell C. We need a mix of to produce the low-carbon power we will need by all these technologies. He is right to point out the 2050. We negotiated the contract with EDF and CGN potential of advanced nuclear technologies: that is so that they would bear the full costs of any escalation why we are investing in them. The Rolls-Royce SMR is in construction. The £92.5 price cannot directly be likely to be operational by 2032. Investment in AMR compared with the price for more intermittent forms technology, which has the potential to help us in our of generation. I hope that satisfies the right reverend hydrogen ambitions, will follow shortly thereafter. Prelate. Lord Ravensdale (CB) [V]: My Lords, I declare my Lord Robathan (Con) [V]: My Lords, I agree with interests, as shown in the register. We are losing a large my noble friend that we need a blend of energy. I amount of low-carbon firm power capacity by the end welcome the progress on renewable energy since 2010. of this decade. Much of the debate on future generation I hope that perhaps there will be further progress on has been based on comparison of levelised costs of nuclear fusion and hydrogen technologies. Can she electricity metrics between technologies.Does the Minister confirm that the power station at Hinkley Point is part agree that this does not recognise the system costs of of our critical national infrastructure? Are we entirely intermittent generators, and that an alternative model confident that there are no companies involved that should be developed which accounts for this and might owe allegiance elsewhere, should there be a positively incentivises renewable generators, such as crisis? She will of course know that I am talking about equivalent firm power auctions? Chinese companies. Baroness Bloomfield of Hinton Waldrist (Con): The Baroness Bloomfield of Hinton Waldrist (Con): My noble Lord makes an interesting point. He is right that noble friend will be reassured to know that the fusion we should take all costs of the energy system into projects are proceeding at a fast pace, and a competition account when making choices about our generation has just been launched to host the first STEP project mix. The latest departmental modelling does this. It is in the UK. As he will know, the White Paper promised not as simple as calculating firm power equivalence. A £385 million to invest in new nuclear technologies. On system’s cost depends on what is available across the his last point, all investment involving critical infrastructure sector, rather than focusing on each type of generation is subject to thorough scrutiny and needs to satisfy separately. robust legal, regulatory and national security requirements. These will only be enhanced by the National Security Lord Grantchester (Lab): The energy White Paper and Investment Bill, which arrives in this House tomorrow. stated that, at Hinkley Point C, EDF “expects that 64% of the construction contracts, by value, will go Lord Oates (LD): What justification can the Minister to UK-based companies.” provide for licensing new nuclear plants when, 60 years Can the Minister confirm that this will continue to be after the UK’s civil nuclear programme began, the the case, despite the delay and increased costs of that Government still have no solution for the safe, permanent project? Can she translate this into the number of storage of existing high-level nuclear waste, which jobs? How widespread or,alternatively,how concentrated, remains deadly for longer than any civilisation has ever are their location? What is the multiplier effect on survived? local jobs? Will this be reflected in a similar fashion at Sizewell C, at the reduced cost now agreed? Baroness Bloomfield of Hinton Waldrist (Con): It is a priority of the Government to look after the waste Baroness Bloomfield of Hinton Waldrist (Con): Our securely.We have been looking for a permanent solution aim is certainly to replicate the mix of local construction for the geological disposal facility. All developers are costs into the UK economy. Hinkley Point has indeed responsible for the cost of storage and transportation invested £12 billion into the UK economy, which of nuclear waste, which has been safely disposed of since represents 64% by value. I cannot comment on the we pioneered nuclear power stations in the 1960s. multiplier effect, but Hinkley Point C has generated 10,300 jobs to date and has had knock-on effects, such Lord Marlesford (Con) [V]: My Lords, I declare my as the co-operative group of farmers who now produce Suffolk interests, as in the register. We will have to food for the entire Hinkley Point estate. I understand leave Hinkley to sort itself out from the muddle that that a couple have gone on to supply other local EDF is now making, but Sizewell C is expected to cost businesses too. 2169 Electricity Supply [LORDS] Hotel Quarantine for Travellers 2170

The Lord Speaker (Lord Fowler): My Lords, the and we have implemented Project Eagle, the tracing time allowed for this Question has elapsed, which brings project to track down those who have tested positive in Question Time to an end. genomic sequencing for variants of concern.

12.55 pm Baroness Jolly (LD) [V]: My Lords, the Minister Sitting suspended. will be aware that Australia is imposing a two-week quarantine for all travellers flying in from abroad, with no exceptions. My son, who has dual nationality, Arrangement of business is flying out in March to take up a job. He must have a Announcement negative Covid test result before flying and stay in a hotel for two weeks at his own expense. Australia has 1 pm shown the way; when does the Minister expect the UK The Deputy Speaker (Lord Duncan of Springbank) to follow? (Con): My Lords, the Hybrid Sitting of the House will now resume. I ask Members to respect social distancing. Lord Bethell (Con): The noble Baroness is completely right to cite Australia, and we take our hat off to its remarkable achievement in using its island status to Hotel Quarantine for Travellers protect itself against the virus. We are responding to Private Notice Question the challenge of new variants by upgrading our measures, and announcements on this will be made shortly. The 1 pm CMO’s view on the variants of concern so far is that Asked by Lord Hunt of Kings Heath we should have a proportionate system, which means an upgrading and not necessarily an Australia-style system. To ask Her Majesty’s Government what plans But we are putting in place the kinds of measures that they have to implement a mandatory hotel quarantine could be upgraded to an Australia-style system were for all travellers arriving in the United Kingdom. there to be a threat of significant magnitude.

TheParliamentaryUnder-Secretaryof State,Department Lord Lancaster of Kimbolton (Con): My Lords, of Health and Social Care (Lord Bethell) (Con): My yesterday, the UK recorded 16,840 new Covid cases. Lords, these new measures at the border are a necessary Australia and New Zealand recorded six and one step to protect the public and our world-class vaccination respectively. Of course, we should not be encouraging programme. Every layer of protection we have put in people to travel to the UK, but some people have no place will help reduce the risk of transmission of the choice—for family reasons, for example. I encourage virus and prevent any potential new strain entering the my noble friend, before we adopt a blanket approach UK. All measures will be kept under review and, if to hotel quarantine, which may be appropriate for required, further action will be taken to add another high-risk countries, to think about the cost. Can he layer of protection against transmission. reassure me that the Government are more than capable of adopting a dynamic, risk-based approach to hotel Lord Hunt of Kings Heath (Lab) [V]: My Lords, quarantine? given the good news on vaccines, should we not be ever more vigilant on our borders? The 22 December Lord Bethell (Con): My noble friend is right that we meeting of SAGE identified the rapid spread of a have to be proportionate and balance risk. I flag that variant in South Africa, and the NERVTAG meeting we are aware of the extreme measures some passengers of 13 January warned of the rapid growth of variant go to in order to avoid boundary controls. Some B1351 in South Africa and called for enhanced border people go to extraordinary lengths to undertake journeys measures. Since then, how many people have entered that, frankly, are dangerous and irresponsible. I would the UK from South Africa? Why, as Yvette Cooper normally consider travel a right of enormous value said yesterday, is it still possible for people to return which I would fight for individuals to have. But in a home to the UK from South Africa and go straight pandemic, it is different. In a pandemic, travelling is into the community with no tests on arrival, no quarantine dangerous. You may be taking a variant of significant hotels and no quarantine taxis? Scotland has announced danger to the country of your destination, and it cannot extensive new quarantine rules today. When will the be regarded as something done easily and lightly, as in Government get a grip and bring in the much tougher normal times. quarantine measures they should have introduced weeks ago? The Deputy Speaker (Lord Duncan of Springbank) Lord Bethell (Con): My Lords, I entirely agree with (Con): The next speaker is the noble Baroness, Lady the noble Lord. He is right that additional vigilance is Masham of Ilton. Is the noble Baroness with us? We required. The advent of new variants that could have will come back to the noble Baroness. Let us go to the higher transmissibility or escape the vaccine is a complete noble Lord, Lord Clark of Windermere. game-changer, and that is why we have changed our approach to border management. We have upgraded Lord Clark of Windermere (Lab) [V]: My Lords, the our border control measures, and there will be further Minister said that he believed there was a basic right government announcements on that. Wehave introduced to travel. I put it to him that there is an even greater red lists of countries where there are variants of concern, right to live, yet we have the highest death rate per 2171 Hotel Quarantine for Travellers[3 FEBRUARY 2021] Hotel Quarantine for Travellers 2172 head of the population of any country in the world. Baroness Masham of Ilton (CB) [V]: My Lords, I Should we not put the right to live at the top of our hope you can hear me—I was frozen. After quarantining agenda? in a hotel for five days or more and having had a test which proved negative, would a person be released? If Lord Bethell (Con): I could not agree with the noble a person had to return to the UK because they needed Lord more: the right to live trumps all other rights. It urgent medical treatment, would they be admitted is a sad fact that, while we would normally do everything directly to a safe hospital? we could in a liberal democracy to protect rights such as the freedom to travel, under current circumstances Lord Bethell (Con): My Lords, the details of the these are trumped by the right to live, and that is why I isolationprotocolshavenotbeenannouncedyet.However, call on all people to limit their travel wherever they I suggest that the amount of time needed to flush out humanly can. There is simply no excuse for going to those who have got an infection from travel may need Dubai, taking Instagram photographs of yourself and to be longer than the five days the noble Baroness claiming that that is business travel. You are putting indicated.Forthosewhohaveurgentneedof hospitalisation, your friends and loved ones at risk, and this Government of course the NHS is there for them; we have the PHE will not tolerate it. and infection control protocols in place to protect them. Lord Taylor of Goss Moor (LD) [V]: My Lords, given the significant community transmission of the Lord Green of Deddington (CB) [V]: My Lords, can South African variant, how confident is the Minister the Minister assure the House that any system introduced that we have in place today sufficient measures to stop will be resilient enough to cope with a significant inflow the equivalent happening again? It does appear the from Hong Kong, if that were to occur? As he will know, Government are again running behind events. the Government have just granted the right of entry—and, later, settlement—to up to 5.4 million from Hong Kong, Lord Bethell (Con): My Lords, matters are evenly roughly the entire population of Scotland. balanced. There are 143 confirmed and probable cases of the variant first identified in South Africa. Most of Lord Bethell (Con): My Lords, I share the noble those have been connected with travel to South Africa, Lord’s pride in that measure and concern that we and those involved have been isolated. There are around extend a warm hand of friendship to those from Hong a dozen in respect of which the chain of transmission Kong. He raises the point extremely well. I would like is not fully understood. Wehave put in place a substantial to think that any system we put in place would be team of dedicated tracing professionals to track down resilient to surge demand of the kind he indicates, but those variants of concern, along with teams in the I will take his point back to the department and check relevant postcodes, so we are doing both a fire blanket that everything is being done accordingly. of testing within the community and forensic detective analysis to track down the chain of transmission. It is Baroness Wheeler (Lab) [V]: My Lords, UK borders my belief that that will be enough to keep the spread have knowingly been left open and potentially exposed of the virus under control in this country, but we are people to new strains of the virus, rather than the watchful and concerned. implementation of the prompt, concerted action advised by SAGE and a comprehensive hotel quarantine system The Deputy Speaker (Lord Duncan of Springbank) brought in for all UK arrivals. Does the Minister accept (Con):WewillreturntothenobleBaroness,LadyMasham, that the current 10-day self-isolation system has failed? after the next speaker,who is the noble Lord, Lord Vaizey If so, why is the policy still being pursued for the of Didcot. majority of travellers? We have been promised that hotel quarantine will be implemented for some countries Lord Vaizey of Didcot (Con) [V]: My Lords, it may as soon as possible, with some reports suggesting that seem paradoxical to impose tough restrictions just this will not be enforced until the week of 15 February. when a version of the winning post is in sight, thanks Can the Minister confirm whether this is the target to the Minister and his colleagues’ excellent vaccine date? Will additional measures be in place for travellers rollout. It may give us some comfort if he could update from the red list of countries in the interim? Finally, us on how effective his experts think the vaccines will does he accept that a partial quarantine is doomed to be against the new variants. fail, given that global travellers may move across many countries during their journey, passing through multiple Lord Bethell (Con): My Lords, the good news to travel hubs and departure lounges while encountering date has been that the vaccines have proved extremely and spending time close to many other travellers along robust. Certainly, the readout on the Kent domestic the way? variant and its mutations are extremely positive. A huge amount of work is going on to understand the Lord Bethell (Con): My Lords, I acknowledge the Brazil and South Africa variants; it seems that the detailed and perfectly reasonable questions raised by latter does something to escape the vaccine, but not the noble Baroness, but I am unable to answer them all enough for the vaccine not to be extremely useful. The in detail. A Statement will be forthcoming from the news to date is encouraging but we are extremely Government on exactly those questions. I remind her watchful. If a variant or mutation emerges that can that travel has come down by 90% in a comparative escape the vaccine, we will do everything we can to period. She is entirely right that travel patterns are complex; protect that essential national project. any measures we put in place will recognise that many 2173 Hotel Quarantine for Travellers [LORDS] Domestic Abuse Bill 2174

[LORD BETHELL] This is day four of Committee on the Domestic travellers leapfrog from one country to another,brushing Abuse Bill. I will call Members to speak in the order against others, and that the spread of the virus cannot listed in the annexe to today’s list. Members are not be narrowly contained to travel corridors in the way permitted to intervene spontaneously; the Chair calls one would sometimes like to hope. each speaker. Interventions during speeches or “before the noble Lord sits down” are not permitted. During Lord Sarfraz (Con) [V]: My Lords, can my noble the debate on each group, I invite Members, including friend say whether we will try to monitor the physical Members in the Chamber, to email the clerk if they and mental health and well-being of those in hotel wish to speak after the Minister. I will call Members to quarantine, including vulnerable travellers, travellers speak in order of request. I will call the Minister to with disabilities and those with small children? reply each time. The groupings are binding, and it is not possible to degroup an amendment for separate Lord Bethell (Con): The noble Lord is entirely right debate. A participant who might wish to press an to be concerned about those who travel for essential amendment other than the lead amendment in the reasons but who may face some hardship through group to a Division must give notice, either in the their journey.Weare putting in place special arrangements debate or by emailing the clerk. Leave should be given to ensure they are looked after in the best way possible. to withdraw amendments. When putting the question, However, I remind him and the House that the purpose I will collect voices in the Chamber only. If a Member of these measures is to reduce dramatically the amount taking part remotely wants their voice accounted for if of travel. Travel is no longer a right; it is a danger, and the question is put, they must make this clear when as a result everyone needs to think very seriously before speaking on the group. We will now begin. they commit to a journey. Lord Loomba (CB) [V]: My Lords, we need to control Domestic Abuse Bill the new variant strains entering the UK by controlling Committee (4th Day) the travel corridors at airports and seaports if we want to avoid a third wave of Covid-19. Can the Minister 1.46 pm tell us whether the Government deem the mandatory hotel quarantine an important step to ensure the safety Relevant documents: 21st and 28th Reports from of the nation from further devastating deaths from the Delegated Powers Committee Covid-19 and overwhelming pressure on our NHS, consideringthehugeimpactthiswouldhaveonimmigration, police, medical staff and the parties waiting in hotels at Clause 62: Special measures in civil proceedings: airports and seaports around the country? victims of specified offences

Lord Bethell (Con): The thrust of the noble Lord’s Amendment 109 question is entirely right. We are now living in different circumstances; the variants of concern could emerge Moved by Lord Marks of Henley-on-Thames as a real threat to the vaccine. This Government will 109: Clause 62, page 39, line 18, leave out from “person” to end do whatever we can to protect the vaccine deployment of line 19 and insert “(“P”) is, or is at risk of being, a victim of and the reassurance it has given to millions of people, domestic abuse carried out by a person listed in subsection (1A). and to protect our hospitals, our NHS and life. We will (1A) A person referred to in this subsection is— therefore do whatever it takes. He is right that travel (a) a party to the proceedings; arrangements for people must be subject to mandatory (b) a relative of a party to the proceedings (other than control; it is not possible to hope that people will go P); or home and isolate in cases such as this. Hotels may play (c) a witness in the proceedings.” an important part in ensuring that that mandate is truly effective. Our plans are being processed at the moment; Member’s explanatory statement our monitoring of the variants of concern has been This amendment and the other amendments to Clause 62 in the name of Lord Marks of Henley-on-Thames would apply the upgraded massively,with huge investment in international same special measures to parties or witnesses who are victims or surveillance. We will update the House accordingly. at risk of being victims of domestic abuse in civil proceedings as apply in family proceedings. The Deputy Speaker (Lord Duncan of Springbank) (Con): My Lords, I am afraid the time allowed for this Lord Marks of Henley-on-Thames (LD) [V]: My Lords, Question has now elapsed. my four amendments in this group—Amendments 109, 1.17 pm 111, 112 and 113—to which the noble Baroness, Lady Bennett of Manor Castle, has kindly added her name, Sitting suspended. are intended simply to apply the Bill’s provisions relating to special measures in family proceedings to civil Arrangement of Business proceedings as well. Announcement Under the Bill as it stands, special measures are to be available to parties or witnesses in family proceedings 1.45 pm who are victims of domestic abuse or at risk of being The Deputy Speaker (Lord Duncan of Springbank) such victims. Although the provision of special measures (Con): My Lords, the Hybrid Sitting of the House will in courts is relatively recent, the courts recognise how now resume.I ask all Members to respect social distancing. important it is to help vulnerable parties and witnesses 2175 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2176 reduce the trauma— the ordeal, even—of involvement be taken. There is scope for an opt-out under Clause 61(4), in court proceedings. Special measures are arrangements whereby a party or witness in family proceedings can to help a vulnerable party or witness give evidence or signify that they do participate in court proceedings in a way that mitigates “not wish to be deemed to be eligible” that trauma. Even in the driest and least emotional of for special measures. cases, the experience of being involved in litigation, The reason that I have spent some time setting out especially of giving oral evidence, is often extremely the background and the arrangements proposed for stressful. For vulnerable parties and witnesses, most family proceedings is that they are thoroughly sensible with a history of deep and often emotionally searing and helpful and likely to be effective without unforeseen personal involvement in the events that led to the and unjust gaps. My amendments are directed at proceedings, the experience of reliving them is fraught ensuring that the same arrangements apply in civil with anxiety, fear and even terror. Therefore, the need proceedings by bringing Clause 62 into line with Clause for special measures arises. 61. They would implement the recommendations made Such special measures enable witnesses or parties to by the Civil Justice Council and supported by Refuge, give evidence from behind a screen, usually in abuse Women’s Aid and the Equalities and Human Rights cases, to protect them from having to face their abuser Commission, among others. or abuser’s family across a courtroom. Alternatively, Clause 62, as drafted, does not do the same for civil provision can be made for witnesses to give evidence proceedings as Clause 61 does for family proceedings. via a live link or with the assistance of an intermediary. For a reason I do not understand, the clause sets a Special measures cannot remove the fear but can help higher bar for civil proceedings. There is an additional to reduce it. We take them as a matter of compassion threshold test, which a party or witness would have to for those involved, but also out of concern that victims surmount to secure eligibility for such measures. The and vulnerable parties should not be too frightened of clause requires that to qualify as a victim or alleged victim, bringing proceedings to come forward and therefore the person must be the victim of “a specified offence”, continue to suffer abuse in silence, sometimes with that is one specified in regulations by the Lord Chancellor. horrifying consequences. We also take special measures That condition is defined in Clause 62(3). For it to be to help ensure that proceedings are fair, that the quality met, there must have been a conviction or a caution of the evidence before the court is as good as it can be for the offence, or someone must have been charged in difficult circumstances, and that the courts can, with the offence against the victim. Therefore, it would therefore, make fair decisions. not be enough for the vulnerable witness or party to For family proceedings, Clause 61 would require establish that they are frightened of being a victim or that where a party or witness is, or is at risk of being, a at risk of being a victim, nor even that they have, in victim of domestic abuse carried out by another party fact, been a victim. They have to establish that the or relative of another party, or by a witness in the criminal law has been invoked so that the offender proceedings, it is to be assumed that there is a risk of must have been cautioned or charged by the police for the quality of the victim’sevidence, or of her participation the specified offence or convicted of it by a criminal in the proceedings generally, being diminished. court. I suggest that there is no basis for this distinction That has the effect of bringing into play the provisions between family and civil proceedings. of Part 3A of the Family Procedure Rules 2010, which We know how often victims do not report abuse to are supported by a detailed practice direction. They the police, whether out of fear of their abusers or the provide that victims of domestic abuse and other relatives, fear of the trauma of criminal proceedings, parties or witnesses are eligible for special measures if concern for their private lives being exposed, or other the quality of their evidence or their ability to participate reasons. The Office for National Statistics estimates in the proceedings is likely to be diminished by their that around four in five—79%—of survivors do not vulnerability. The rules and the practice direction set report partner abuse to the police. Requiring that out a full code for the court to identify vulnerability victims go through the criminal process before being and consider ways to help vulnerable witnesses and treated as vulnerable, and excluding those at risk of parties. They do not just cover giving evidence. Directions being victims from being treated as vulnerable altogether, may include represents a failure to understand vulnerability.Invoking “matters such as the structure and the timing of the hearing, the criminal proceedings requires robustness. Experience formality of language to be used in the court and whether (if and common sense tell us that vulnerable witnesses facilities allow for it) the parties should be enabled to enter the and parties are those least likely to involve the police and court building through different routes and use different waiting areas.” the criminal courts. The existing provisions also go wider than domestic I have discussed this issue with the noble Lord, abuse and cover: Lord Wolfson, and I am grateful to him for talking to “sexual abuse … physical and emotional abuse; racial and/or me about these amendments and engaging with them. cultural abuse or discrimination … forced marriage or … “honour The noble Lord explained the Government’s position based violence” … female genital or other physical mutilation … by saying that there is an intimacy to family proceedings abuse or discrimination based on gender or sexual orientation … not present in ordinary civil proceedings. In many and … human trafficking.” cases that will be right, but I invite the noble Lord to Clause 61 requires the court to assume that, if the concede, from his own experience, that there are literally threshold I mentioned is met, special measures will thousands of cases involving partners, former partners automatically be available in domestic abuse cases for and others who are personally connected—as defined victims and those at risk of being victims. The court in the Bill—which involve disputes that have a domestic will then consider what, if any, special measures should or quasi-domestic context. 2177 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2178

[LORD MARKS OF HENLEY-ON-THAMES] many cases in which civil proceedings will be intimately I give a few examples only: disputes about ownership entangled with family issues and issues of domestic and occupation of property; ownership, loss or damage circumstances. I think particularly of farms and some to goods; landlord and tenant disputes, including disputes cases I have seen where the acrimonious break-up of family about who holds tenancies; employment disputes; and farm businesses will often be tangled in civil proceedings inheritance disputes. There are also disputes arising but have an intensely personal side as well. out of families running businesses together, which has These are important, sensible and helpful amendments. become increasingly common in recent decades. These I very much hope that the Government will take them sometimes involve partnership disputes, sometimes it on board in the interests of compassion and justice. is disputes over the ownership of shares or misuse of company funds. In these cases, the parties might be 2 pm companies, but the witnesses might have been involved Lord Rosser (Lab) [V]: My Lords, I can be very brief in an acrimonious and abusive personal relationship. in the light of what the two previous speakers have The list goes on and lawyers well know that cases with said on this amendment. personal connections give rise to the greatest animosity The purpose of this group of amendments, and a and the greatest tension. I can see no reason to apply a later group, is simply to provide consistency of protection different test for vulnerability in civil proceedings from for victims and survivors of abuse, across both the family that applicable to family proceedings. If the conditions and civil courts. These amendments would replicate in for family proceedings are met and the party or a witness the civil courts protections that the Government already is a victim or at risk of being a victim of domestic abuse, agree are needed in the family court. This seems an carried out by another party or a relative of such a exceptionally reasonable ask. We support the aim of party,oranotherwitnessintheproceedings,specialmeasures and reason for the amendments, as set out by the noble should generally follow. It will always be for the court Lord, Lord Marks of Henley-on-Thames. I will be to determine whether those conditions are met, as it is interested to hear from the Government why they have in family proceedings. It would also be for the court to chosen to draft the Bill with this distinction between determine whether special measures are appropriate and the courts. what they should be. If the threshold is met, however, it is unjustified, illogical and unfair to insist that an The Parliamentary Under-Secretary of State, Ministry offence must already have been committed and that of Justice (Lord Wolfson of Tredegar) (Con): My Lords, the criminal law must have been invoked before eligibility as the noble Lord, Lord Marks of Henley-on-Thames, for special measures is established. I beg to move. explained, these amendments seek to bring the procedure relating to special measures in civil courts in line with Baroness Bennett of Manor Castle (GP) [V]: My the provisions in family courts. We agree with the Lords, it is a pleasure to follow the clear, comprehensive fundamental aim set out by the noble Lord: to ensure and powerful outline of these amendments by the noble fair proceedings, meaning proceedings that are fair not Lord, Lord Marks of Henley-on-Thames, in whose only to the parties but to witnesses. name they are tabled. It was a pleasure to attach my In that context, the Government’s starting point name to Amendments 109 and 111. when considering the experience of vulnerable witnesses The case has been set out very clearly so I do not in the civil courts stems from the independent inquiry need to detain the Committee for long. I will just say into child sexual abuse, which published its interim why I attached my name to these amendments when I report and recommendations in April 2018. The inquiry saw that no other noble Lords had done so. It was recommended because of my experiences as a young journalist many “that the Ministry of Justice provides in primary legislation that victims and survivors of child sexual abuse in civil court cases, years ago in Australia, when I covered mostly criminal where they are claiming compensation in relation to the abuse courts. This was in the days long before there was they suffered, are afforded the same protections as vulnerable thought of protecting witnesses who were the victims witnesses in criminal court cases.” of what we now call domestic abuse. As the inquiry put it, this was to ensure that victims I saw the sometimes harrowing ordeals that people and survivors of child sex abuse can provide the best had to go through. I think the noble Lord, Lord Marks evidence in civil court cases. used the word “ordeal”. Members of your Lordships’ While the Government had some sympathy with the House are used to testifying, speaking and being in recommendation, we also agreed that the issues raised these spaces, but we are talking about people who are by this recommendation needed further consideration, victims of domestic abuse and have suffered all the including whether it was right in principle to extend the personal damage that entails. They are also not used protections to other vulnerable witnesses.The Government to being in these environments very often. As the noble therefore sought expert help from the Civil Justice Lord, Lord Marks,said, this is an issue of compassion—of Council, which was asked to consider the vulnerability protecting people and ensuring that we are not making of parties and witnesses in civil actions, not just in victims of domestic abuse suffer again. It is also an relation to claims arising from sexual assault or abuse issue of justice because if they are to be able to clearly but more widely. The Committee will be aware that, set out the case—to explain the circumstances and after extensive consultation and expert input, the Civil to bear witness—they need to be in conditions that Justice Council published its report in February last reasonably allow them to do that. year. It conceded that there was no single or coherent As the noble Lord, Lord Marks, said, to set a set of rules in the Civil Procedure Rules dealing with higher bar for civil proceedings than for family proceedings vulnerability in the same way as there was in the Family simply does not make sense. As he said, there are Procedure Rules. 2179 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2180

In this context, we must remember an important will need them in the civil courts. We will consider this point, to which the noble Lord, Lord Marks, alluded. issue carefully ahead of Report and continue to listen Civil cases, by their nature, have the potential to cover to arguments. Of course, I remain open to discussion a much broader range of circumstances where there is with both the noble Lord, Lord Marks, and others. no prior close connection between the parties; for In the light of that confirmation and undertaking, example, where a victim is suing an alleged perpetrator I hope that the noble Lord will be content to withdraw of sexual abuse or in an action against the police or an his amendment. employer where abuse is alleged. Of course, I take on board the noble Lord’s examples of cases where the Lord Marks of Henley-on-Thames (LD) [V]: My parties may be corporate but, none the less, there are Lords, first, let me say how grateful I am to the noble individual witnesses who are victims. Lords who spoke. Having considered the matter, and in relation to It was interesting to hear my rather dry opening special measures, the Civil Justice Council report did supplemented by the personal experience of the work not go as far as recommending that it should be enshrined of the noble Baroness, Lady Bennett of Manor Castle, in primary legislation. Rather, it was felt that it was in courts in Australia. She made the valuable point best left to the flexibility of court rules since—this is that, generally speaking, litigants and witnesses are an important point—judges in civil proceedings already not used to being in court—it is a new experience for have inherent powers to order the provision of special them and this adds to their concern, which is of course measures under the Civil Procedure Rules when it is amplified in the case of vulnerable witnesses and considered necessary. However, the Government took parties. She also gave the interesting and important a slightly different view, taking the recommendations example of family farms giving rise to very personal that came from the independent inquiry into child disputes, where there is often a background of abuse. I sexual abuse, which I have already mentioned. am bound to say that, in my years of practice on the As the Civil Justice Council report highlighted, Western Circuit before doing more of what I do now, vulnerability in the civil courts is not limited only to disputes about family farms were endless. They are to victims of domestic abuse. Some people may have be taken into account. I am grateful to the noble Lord, mental or physical conditions that render them vulnerable Lord Rosser, for his support as well. and hamper their access to justice. Others, as with The Minister has given a considered response and victims or survivors of abuse, may be vulnerable solely ultimately made an undertaking to me and others. I by reason of the subject matter of the proceedings before am grateful for the way he has dealt with the amendments. the court. This, as the report suggested, may affect However, I am bound to say that nothing I heard their ability to participate in proceedings or give their from him justifies the distinction to be drawn between best evidence. the protection afforded in family proceedings and We want to avoid—this is a risk—unnecessarily the protection available in civil proceedings. I got the prolonging cases because of satellite litigation which impression that he understands the reasons why we revolves around the granting of special measures where have disputed that distinction. the case is not contingent on vulnerability. At the same I do not accept that a system based on the Civil time, as I said, we need to ensure that the justice system Procedure Rules for protection in civil proceedings is is fair—that is, fair for all. Therefore, we must be careful anything like as good as a system based on statute, as to focus this provision on only the circumstances in the arrangements in family proceedings will be following which it is needed. this Bill. If a statutory arrangement is good enough Even though the approach is different in civil courts, for family proceedings and is applicable as appropriate judges in civil proceedings already have inherent powers for those, I would suggest that it is appropriate for civil to order the provision of some special measures under proceedings as well. Nor do I accept that there is a the Civil Procedure Rules when it is considered necessary. realistic prospect of satellite litigation arising regarding I hope that this goes some way towards addressing the the availability or withholding of special measures. concern of the noble Lord, Lord Marks, which was That seems most unrealistic and, in any event, even if shared by the other two speakers in this short debate; I it were realistic, it would be no more realistic in a set of acknowledge their contributions, of course, but I think measures based on legislation than it would be presently it is fair to say that they largely agreed with the approach in a set of measures based on the uncertain application taken by the noble Lord. In that context, the Civil of the rules of court. I welcome the Minister’scommitment Procedures Rule Committee continues to examine the to further engagement. I regard this as a very important issues faced by vulnerable witnesses in civil courts. issue, and I will of course speak to him, as no doubt While we want to ensure parity between each will others, between now and Report in the hope of jurisdiction, we also need to build in allowances for the achieving agreement. I beg leave to withdraw the differences—and there are differences—between them. amendment. This is why the provisions in respect of cross-examination and special measures in civil cases differ from those in Amendment 109 withdrawn. family proceedings. Amendments 110 to 113 not moved. In the light of my discussions with the noble Lord, Lord Marks, and others, and in the light of all the Clause 62 agreed. contributions in this short debate, let me say—in clear terms, I hope—that we very much appreciate the The Deputy Chairman of Committees (Lord Faulkner arguments raised in relation to fairness and the concerns of Worcester) (Lab): Wenow come to the group beginning around availability of special measures for those who with Amendment 114. I remind noble Lords that 2181 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2182

[LORD FAULKNER OF WORCESTER] conviction or caution has been spent. It seeks to build anyone wishing to speak after the Minister should on the excellent proposals championed by the Government email the clerk during the debate. Anyone wishing to to protect the survivors of domestic abuse from being press this or anything else in this group to a Division cross-examined by their perpetrators in the family court. must make that clear in the debate. As the former Victims’ Commissioner, I sadly heard directly from abuse survivors who had endured the pain,humiliationandre-traumatisationof beingquestioned Clause 63: Prohibition of cross-examination in person on the stand by their abuser, and I am glad that we are in family proceedings putting an end to this blatantly abusive practice. None the less, I am concerned that the current Amendment 114 provisions overlook a scenario that we are likely to see Moved by Lord Rosser in the family courts. Clause 63 does not currently apply to a conviction or caution that is spent. This is for the 114: Clause 63, page 40, leave out lines 31 to 35 purposes of the Rehabilitation of Offenders Act 1974. Member’s explanatory statement I understand the motivations behind not further punishing This is to probe that in the family court, where a perpetrator’s an offender past the time when they are considered conviction is spent, other protections will be in place to protect a rehabilitated, yet we know that domestic abuse involves victim of abuse from being cross-examined by the perpetrator. patterns of behaviour that will not necessarily be interrupted or indeed stopped by a conviction. Thanks Lord Rosser (Lab) (V): My Lords, I am speaking in to data from SafeLives, we know that a quarter of place of my noble friend Lord Ponsonby of Shulbrede high-harm perpetrators are repeat offenders, with some on this and a small number of groups to follow. My having at least six different victims. In other parts of noble friend sends his apologies to the Committee; he the Bill, we will debate the need for an effective perpetrator is unable to be here because he is sitting in court today strategy that will undoubtedly seek to improve our as a magistrate. interventions post conviction. Amendment 114 is probing in nature. Proposed Proceedings in the family courts can go on for years new Section 31R in Clause 63 provides for protections and may well continue past the time when a conviction against cross-examination in person where one of the or caution has been spent, especially if other convictions parties has a caution or conviction for a specified or cautions occurred. However, unless some sort of domestic abuse-related offence against the other. intervention has been made with the perpetrator, the Subsection (3) provides that the protection does not risk could well remain. I raise this scenario to suggest apply where the conviction or caution has been spent. not that we should further punish, but that such risks This amendment would remove subsection (3). It is have not been fully considered. If there was one key intended to clarify that where a domestic abuse conviction takeaway from the Ministry of Justice Expert Panel on or caution has been spent, other protections against cross- Harm report, it was that there are systemic issues with examination in person will apply to prevent a victim how risk is identified and managed in the family courts suddenly being open to cross-examination in person in relation to domestic abuse. by a perpetrator with a history of abuse. We are all I therefore ask my noble friend the Minister whether aware of the traumatic and long-lasting impacts that he considers that the proposals in the Bill as drafted domestic abuse can have and the continuing risk of will ensure that such risk is properly managed in cases abuse that victims can face from a perpetrator. Where where convictions or cautions have been spent. I suggest a conviction becomes spent and the protections under that this provision needs to be reviewed and that extra this new section lapse, there should surely be a risk safeguards such as risk assessments should perhaps be assessment before cross-examination in person can be introduced in such cases. permitted. I hope that we are going to find out that the Bill will provide these extra protections where there is evidence of abuse or a risk of distress to the victim. It Baroness Redfern (Con) (V): My Lords, I am pleased would helpful if the Government could give clarity to follow my noble friend Lady Newlove and I warmly and assurances on this point in their response. congratulate the Government on introducing the Bill. In doing so, I am pleased to have the opportunity to The Victims’ Commissioner for London has also voice my support for its aims, in particular the proposals raised with us the issue of restraining orders, which to reform the family court and provide protection are often given for a fairly short period. It would be measures for victims suffering domestic abuse. Even helpful if the Minister could give assurances that the going to court is a harrowing and daunting process expiration of a restraining order would not impact on which can cause significant distress when a victim the ability of a victim to access necessary protections comes face to face with their perpetrator, even when from that perpetrator in a family proceeding. I look the engagement is indirect. Measures must be in place forward to the Minister’s reply and to his explanation to ensure the provision of separate entrances to the of the various government amendments in the group. court building, as we heard earlier, and separate waiting I beg to move. rooms. We know that domestic abuse comes in many traits. 2.15 pm It is based not only on physical violence but on emotional, Baroness Newlove (Con) (V): My Lords, I shall speak coercive, controlling or even economic abuse. Perpetrators to Amendment 114. As the noble Lord, Lord Rosser, of abuse should be inhibited from cross-examining has just said, it is purely a probing amendment concerning their victims in person. Perpetrators should be prevented the need for additional safeguards in cases where a from directly or indirectly engaging with a victim 2183 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2184 during family court proceedings, particularly as many have changed. I respectfully agree with the noble Lord, victims fear false accusations of parental alienation, Lord Paddick, that the Rehabilitation of Offenders which clearly has prevented many telling their personal Act is a very important provision. It enables a line to stories. Protective screens in a court setting help to be drawn and people to move on. shield victims from their alleged abuser and prevent It is in that context that, at the moment, the form of intimidation, as do live links, evidence-giving in private the Bill is that spent convictions and cautions should and greater emphasis on reassuring abuse victims, automatically trigger the prohibition only where evidence particularly children, who are always victims. These in relation to the conviction or caution is admissible in new measures will help to achieve the best result for relation to the current family proceedings. However, as those children. the noble Lord, Lord Rosser, reminded us, and as the Havingreceivedmanybriefingsandpersonaltestimonies, Government fully acknowledge, the damage caused by victims eagerly await new protective measures, so that domestic abuse may often last for decades, sometimes thereportingof victimsbeingre-victimisedandretraumatised a lifetime, and well beyond the point at which a within the family court setting is stopped. The Bill conviction or caution is spent. One must also consider mustdeliveraonce-in-a-lifetimeopportunitytotransform the point made by my noble friend Lady Redfern, that our national response for domestic abuse victims and, the court process is daunting, especially for victims of in achieving the right support for those victims, will go abuse. Therefore, the noble Lord, Lord Rosser, is right a long way to helping them rebuild their lives.Importantly, to test the adequacy of Clause 63 in guarding against they will be listened to. cross-examination which remains inappropriate despite convictions or cautions being spent. I am sure that all Lord Paddick (LD) [V]: My Lords, I agree with the Members of the Committee will have been moved by comments made by the noble Baroness, Lady Redfern, the personal testimony of my noble friend Lady Newlove, in a broader context. On the particular issue in this when she explained the effect that such cross-examination group, I have listened very carefully to the case made can have. by the noble Lord, Lord Rosser, reinforced by the noble However,theGovernmentbelievethatClause63provides Baroness, Lady Newlove. The noble Lord talked about adequate protection in such circumstances. We must a risk assessment before cross-examination if someone bear in mind that the automatic prohibition on cross- has a history of abuse. Presumably he is referring to examinationisalsotriggeredwhereaprotectiveinjunction somebody with a history of abuse but whose convictions is in place—that is the force of the new Section 31S—or are spent under the Rehabilitation of Offenders Act. where prescribed evidence of domestic abuse is provided The noble Baroness, Lady Newlove, talked about repeat to the court; that is the force of the new Section 31T. offenders. Repeat offending is very common when it Moreover, and of greater importance here, given the comes to domestic abuse, but I wonder whether a sometimes more historical nature of abuse, is what we perpetrator with a history of abuse, a repeat offender, intend should become Section 31U of the Matrimonial is less likely to have spent convictions or cautions. and Family Proceedings Act 1984. This is an important The Rehabilitation of Offenders Act is an important provision, which provides context against which the piece of legislation that allows offenders to move on noble Lord’s amendment should be considered. from their previous offending, but my understanding New Section 31U is in deliberately broad terms and is that if a court decides that justice cannot be done provides for a wide discretion to meet the particular without the conviction or caution being taken into facts and circumstances of the case before the court. It account, the court can take account of a spent conviction. enables the court, either in response to an application This potentially means that a court could prevent cross- or of its own motion, to prohibit cross-examination examination of a victim of domestic abuse if it decided where it would diminish the quality of evidence or that a spent conviction or caution was relevant. cause significant distress, so long as to do so is not I look forward to hearing the Minister’sunderstanding contrary to the interests of justice. Any such direction of the legislation as it is. We have no objection to the will remain in place until the witness is discharged, Government’s amendments in this group. unless it is revoked by the court in specified circumstances; for example, if circumstances have materially altered. Lord Wolfson of Tredegar (Con): My Lords, I will Therefore, to answer the point made by my noble begin with the amendments tabled by the noble Lord, friend Lady Newlove, we consider the Bill sufficient in Lord Ponsonby, to which the noble Lord, Lord Rooker, cases of spent convictions, because that provision so ably spoke, and will then turn to the government enables the court to impose the ban if it appears to the amendments, which deal with various technical and court that the two conditions in new subsection 1(b) drafting changes to the same clause. are met. That provision would therefore also deal with As has been explained to the Committee, Amendment the point made by the noble Lord, Lord Rosser, 114, in the name of the noble Lord, Lord Ponsonby, concerning cases of past injunctions or restraining would remove a qualification of the automatic prohibition orders. New Section 31U is a very broad provision on cross-examination in family proceedings by those that enables the court to respond to the facts of a case convicted of, cautioned for or charged with specified and ensure that a suitable order is made. I agree with offences, and their cross-examination by the victim or the noble Lord, Lord Paddick, that it is important that alleged victim. The removal of this qualification would the court has this ability, for the reasons that I have set mean that spent convictions and cautions under the out, under new Section 31U. I hope that this gives the Rehabilitation of Offenders Act 1974 would continue Committee, particularly the noble Lord, Lord Rosser, automatically to trigger the prohibition, irrespective what they sought, which, according to my note, was of how old they may be or how circumstances might clarity and assurance. I hope that I have provided both. 2185 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2186

2.30 pm Member’s explanatory statement I am not going to say very much about the government This amendment provides that “conviction”, in relation to service disciplinary proceedings, includes a finding of guilt and a amendments because there are short explanations printed finding in summary proceedings before an officer that a charge in the Marshalled List, but I shall run through them has been proved. briefly. Amendment 115 amends the definition of 117: Clause 63, page 41, line 32, leave out from “offence” to conviction to a conviction “by or” before a court. This “(except” in line 33 is to provide consistency with provisions around Member’s explanatory statement convictions elsewhere in the Bill. Amendments 116 to This amendment and the Minister’s amendment at page 41, 119 make some changes to the references to convictions line 41 expand the definition of “service disciplinary proceedings” in service disciplinary proceedings. Some proceedings to include proceedings in respect of offences under previous under service law lead not to a conviction but to a armed forces legislation. finding of guilt or a finding that a charge has been 118: Clause 63, page 41, line 34, leave out “that Act” and insert proved. In addition, a person will sometimes be convicted “the Armed Forces Act 2006” of an offence under the Service Disciplinary Act, Member’s explanatory statement known as SDA, under a transitional order made as a This amendment is consequential on the Minister’s amendment result of the repeal of earlier Armed Forces legislation. at page 41, line 32. These amendments simply bring the references in the 119: Clause 63, page 41, line 41, at end insert— Bill to these types of convictions in line with the most ““service offence” means— recent precedent set by Section 65 of the Sentencing (a) a service offence within the meaning of the Armed Act 2020. Finally,Amendment 120 corrects the reference Forces Act 2006, or to Section 80 of the Sentencing Code in the current (b) an SDA offence within the meaning of the Armed text of the Bill, which is incorrect, for which I apologise. Forces Act 2006 (Transitional Provisions etc) Order This amendment corrects the reference to Section 82. 2009 (S.I. 2009/1059);” I return to the principal amendment before the Member’s explanatory statement See the explanatory statement for the Minister’s amendment Committee, Amendment 114 in the name of the noble at page 41, line 32. Lord, Lord Ponsonby. For the reasons I have set out, I 120: Clause 63, page 42, line 1, leave out “80” and insert “82” hope that the noble Lord, Lord Rosser, on his behalf, Member’s explanatory statement will find himself able to withdraw it. This amendment corrects an incorrect cross-reference.

Lord Rosser (Lab) [V]: I thank the Minister for his Amendments 115 to 120 agreed. considered response, which I appreciate. I also thank other noble Lords who spoke in this debate for their The Deputy Chairman of Committees (Lord Faulkner contributions, particularly the noble Baroness, Lady of Worcester) (Lab): Wenow come to the group consisting Newlove, for adding her name to Amendment 114. of Amendment 121. I remind noble Lords that anyone I said at the beginning that this is a probing amendment wishing to speak after the Minister should email the intended to gain clarity and assurances that where a clerk during the debate. Anyone wishing to press this domestic abuse conviction or caution has been spent, amendment to a Division must make that clear in the other protections against cross-examination in person debate. would apply to prevent a victim suddenly being open to cross-examination in person by a perpetrator with a Amendment 121 history of abuse. In his considered response, the Minister sought to give that clarity and those assurances. I shall Moved by Lord Rosser reflect further on what he said in response to this 121: Clause 63, page 44, line 29, at end insert— probing amendment. In the meantime, I beg leave to “31VA Direction to prohibit direct or indirect engagement: withdraw the amendment. evidence of domestic abuse (1) In family proceedings, where specified evidence is Amendment 114 withdrawn. adduced that a person who is a party to the proceedings has been the victim of domestic abuse carried out by another party,the court may give a direction prohibiting the latter party from directly or indirectly engaging Amendments 115 to 120 with the victim during proceedings, if the court deems Moved by Lord Wolfson of Tredegar any such engagement is causing significant distress to the victim. 115: Clause 63, page 41, line 20, after “conviction” insert “by (2) In this section— or” “domestic abuse” has the meaning given by section 1 of Member’s explanatory statement the Domestic Abuse Act 2021; This amendment makes a minor drafting change. “specified evidence” means evidence specified, or of a 116: Clause 63, page 41, line 24, at end insert “, including— description specified, in regulations made by the (i) in the case of proceedings in respect of a service Lord Chancellor. offence, anything that under section 376(1) and (2) (3) Regulations under subsection (2) may provide that of the Armed Forces Act 2006 (which relates to any evidence which satisfies the court that domestic summary hearings and the Summary Appeal Court) abuse, or domestic abuse of a specified description, is to be treated as a conviction for the purposes of has occurred is specified evidence for the purposes that Act, and of this section. (ii) in the case of any other service disciplinary proceedings, (4) A direction under this section may be made by the a finding of guilt in those proceedings;” court— 2187 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2188

(a) on an application made by a party to the proceedings, person. The court has the power to prohibit cross- or examination where there has been a conviction or (b) of its own motion. charge for a domestic abuse-related offence as well as (5) In determining whether the significant distress condition in cases where it would diminish the quality of the is met in the case of a party, the court must have evidence or cause significant distress to the person being regard to, among other things— cross-examined, an issue to which I think the Minister (a) any views expressed by the victim; referred in the discussion on the previous amendment. (b) any views expressed by the other party; These changes are, of course, very welcome. However, (c) any behaviour by the party in relation to the victim the structure of family proceedings differs significantly in respect of which the court is aware that a finding from that of criminal proceedings.In criminal proceedings of fact has been made in the proceedings or in any the parties will normally come together only once at other proceedings; trial. During the course of family proceedings, both (d)anybehaviourbythepartyatanystageof theproceedings, parties are more likely to be in attendance at court for both generally and in relation to the victim; a number of hearings before the cross-examination (e)anybehaviourbythevictimatanystageof theproceedings, process. The Bill as drafted would appear to leave both generally and in relation to the party; parties without support for potentially a number of (f) any relationship (of whatever nature) between the hearings and would only provide a legal representative victim and the party. for a relatively small proportion of the proceedings. (6) If the court decides that there are no alternative The Magistrates’ Association supports this amendment, measures to prevent engagement which causes distress, and we thank it for its work on these issues. the court must— As my noble friend Lord Ponsonby of Shulbrede (a) invite the party to the proceedings to arrange for a qualified legal representative to act for the party indicated at Second Reading, these factors raise two during the court proceedings, and principal issues: first, whether the advocate is able to (b) require the party to the proceedings to notify the their job effectively if they are involved in only a small court, by the end of a period specified by the court, part of the proceedings,and secondly—crucially—whether of whether a qualified legal representative is to act a litigant in person can navigate the rest of the court for the party for that purpose. process and what impact that has on cases involving (7) Subsection (8) applies if, by the end of the period domestic abuse and outcomes for children. specified under subsection (6)(b), either— Amendment 121 would provide that in family (a) the party has notified the court that no qualified proceedings where there is evidence of domestic abuse, legal representative is to act for the party during the the court may prevent a party directly or indirectly court proceedings, or engaging with the victim during proceedings, not only (b) no notification has been received by the court and it at cross-examination, if the court deems that any such appears to the court that no qualified legal representative engagement is causing significant distress to the victim. is to act for the party during the court proceedings. In those cases, the court must invite the party to (8) The court must consider whether it is necessary in arrange for a qualified legal representative or appoint the interests of justice for the party to be represented by a qualified legal representative appointed by the a qualified legal representative to represent them. It court to represent the interests of the party. also provides that if representation is appointed for (9) If the court decides that it is, the court must one party, which would usually be the perpetrator in appoint a qualified legal representative (chosen by this case, the court must consider the need to appoint the court) to represent the party. representation for the other party to ensure fair process. (10) If the court appoints a qualified legal representative This speaks to the wider issue of the lack of legal support to represent one party, and the other party to in private law proceedings. proceedings is not represented, the court must consider In cases which are by their nature incredibly sensitive whether it is necessary in the interests of justice for the other party also to be represented by a qualified and can cause significant distress where there is a history legal representative to ensure a fair process. of abuse, the court process is complex and difficult to (11) If the court decides that it is necessary to appoint understand for many. Litigants in person can find it representation under subsection (10), the court must difficult to follow the instructions of the court or to choose and appoint a qualified legal representative comply with all the elements of a court order. I know to represent the other party.” that it is the experience of my noble friend Lord Member’s explanatory statement Ponsonby of Shulbrede that without the right support These changes would give courts the discretion to prevent a in place, people will often be driven simply to give up, perpetrator directly or indirectly engaging with a victim during family lose heart and drop out of the legal process. We believe court proceedings, where such engagement is causing distress, and that appropriate legal assistance should be provided to appoint a legal representative to represent the perpetrator in throughout this process. Cross-examination is not, as court, if that is necessary to prevent distress to the victim. mynoblefriendputit,theonly“flashpoint”inproceedings. The amendment speaks to a problem that the Lord Rosser (Lab) [V]: My Lords, this amendment Government have already recognised and decided to would build on the provisions on cross-examination act upon: the need to prevent inappropriate engagement that the Government have introduced into the Bill. In between parties in court and to provide suitable legal particular, it seeks to extend the support available to representation where there is evidence of abuse. reflect the structure of the family court. Clause 63 Amendment 121 would simply structure those provisions provides the court with the power to appoint a publicly which the Government already support to reflect funded qualified legal representative to act for a party accurately the structure of the family proceedings to who is prohibited from cross-examining a witness in which they apply, to which I have already referred. 2189 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2190

[LORD ROSSER] and pay enough for them to do a complete job, not Finally, I shall not detain the Committee by repeating just coming in at the last minute but understanding some of the arguments I have just made on the next the whole background to the proceedings and taking group in the name of the noble Lord, Lord Marks, but full instructions? If the lawyer is appointed by the I welcome the aims of his amendments and look forward court, to whom is he responsible? Is the person he to that debate. On this amendment, I look forward, represents a client for all purposes? I absolutely take I hope, to a positive reply from the Minister. the point about the difficulty that litigants in person have, so finding ways to assist can only be to the good. I hope that these proposals can be taken forward. Lord Mackay of Clashfern (Con) [V]: My Lords, I congratulate the noble Lord, Lord Rosser, on the excellent way in which he has presented the amendment 2.45 pm in place of his noble friend Lord Ponsonby. He has Lord McConnell of Glenscorrodale (Lab) [V]: My been able to use the great experience of his noble friend Lords, I thank my noble friend Lord Rosser for so in family proceedings in illustration of the amendment. comprehensively outlining the purpose behind I strongly support the amendment because I feel Amendment 121 and the very strong case for it. I also certain that, while cross-examination is important, thank the noble and learned Lord, Lord Mackay, for contact between the parties in a family proceedings, his clear explanation. although much more spread out, is of critical importance. It is of course important from the legal perspective Things such as the arrangements for children to be with to look at the different situations in the family courts one parent or the other are often extremely difficult to and the way in which different stages in the proceedings work out. It requires personal and direct contact need to be accommodated. I also feel that the amendment between the parties, because it is next to impossible to is important because of the potential human impact accommodate the needs of the parties without it. It is of the absence of such a provision. Legal representation therefore extremely important that this is done with a is important, as is the ability of the court to make fair amount of detail to allow representation to be made. determinations where distress has been, or could be, That is, in principle, already part of the government caused to the victim. It is also important to anticipate Bill, but the Magistrates’Association—of which the noble the impact on victims who might choose to go down Lord, Lord Ponsonby, is a good example—has great this route if such a provision is not in place. experience of how it should work, and the amendment The fear and intimidation involved in advance of a seeks to work that out in some detail. I warmly support decision to begin proceedings in family courts, or to it because it is very well done. As I said on a previous continue with them after they have started, can be very occasion, the fact that the Magistrates’ Association daunting for any victim but perhaps in particular for a supports it is a powerful reason for us to support it too. victim of domestic abuse. Therefore, putting these provisions in place would help encourage those who Baroness Hamwee (LD) [V]: My Lords, my noble need to take a stand and make the move, trying to get friend Lord Marks will speak to most of the amendments out of their current circumstances and into a better regarding court proceedings, but I am glad to be able place for them and the children. It could encourage to say a word on this one. I acknowledge that the them rather than put them off continuing proceedings Government recognise the need for measures to support or beginning them in the first place. victims of domestic abuse in various proceedings. Like I want to ask a specific question about the impact the noble and learned Lord, Lord Mackay, I think the on children. Over the years, I have seen many cases very fact that Amendment 121 was tabled by a practitioner where intimidation at this stage has not necessarily who has already shared with the Committee a lot of been directed at the former partner or wife of the extremely useful experience, as he does on all occasions, abuser,but at the children in order to indirectly intimidate and from the Magistrates’ Association, whose briefings the former partner or wife. Although we have clearly I have always found very useful, pretty much makes indicated in Clause 3 that children should be properly the point. It is certainly very persuasive. recognised as victims of domestic abuse, I would like As I read it, the amendment would address what is the mover and supporters of the amendment to clarify meant by “engagement” in a particular context. As the that, either directly or indirectly, children affected by noble Lord, Lord Rosser, explained—his explanation such distress would be covered by the provisions at the was clear—in family cases the proceedings are generally start of the proposed new clause. not a single event but comprise a series of hearings. For example, would the definition of children as They are quite unlike proceedings in the criminal victims mean that any distress caused to children fell court or the civil court, where a discrete claim is dealt under this provision? If not, would intimidation of with. To use a bit of current jargon, I read this as children be deemed an indirect cause of distress? If the enabling the court to be agile in applying, as it goes Government are not content to include the amendment along, appropriate measures and making directions as or similar provisions in the final Bill, I would be it becomes clear that they are needed. particularly interested to hear from the Minister, on In an attempt not to oppose the amendment but to their behalf, how children who might be affected in develop it, I have been wondering how it would—or this way around the family courts, whether outside or maybe will—operate in practice. One assumes that even within the court setting if they have been asked to there will be a need to find a lawyer for whatever play some kind of role by either their parent or the reason, probably financial, and that the parties will court, will be protected if this provision is not in place. have already considered that. Who will pay the lawyer, I look forward to hearing the Minister’s response. 2191 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2192

Lord Marks of Henley-on-Thames (LD) [V]: My course of proceedings, while keeping the door open to Lords, we support this amendment for the reasons engagement between lawyers, which may smooth a path given by the noble Lord, Lord Rosser, as amplified by to resolution. the noble and learned Lord, Lord Mackay,my noble friend Baroness Hamwee and the noble Lord, Lord McConnell Lord Wolfson of Tredegar (Con): My Lords, as the of Glenscorrodale. noble Lord, Lord Rosser,has explained, this amendment This amendment recognises that in cases involving —to which my noble and learned friend Lord Mackay domestic abuse, just as in any litigation, engagement of Clashfern has added his, if I may respectfully say, between the parties is not limited to conducting the very weighty name—seeks to expand the scope of the case, giving evidence, cross-examining witnesses and prohibition of cross-examination provided for in Clause 63 making submissions to the judge. The noble and learned by prohibiting the perpetrator from engaging directly Lord, Lord Mackay, pointed out that the inadequacy or indirectly with the victim during proceedings where of arrangements that govern cross-examination alone that engagement would cause them significant distress. make such arrangements difficult to justify. It goes on ultimately to provide for the potential There is often a need for the parties to consider and appointment of a legal representative, chosen by the discuss the conduct and progress of the case, as the court, to represent both parties to ensure a fair process noble and learned Lord, Lord Mackay, pointed out. in the interests of justice in such cases. I can assure the That is usually done through their advocates. Yet Committee, in particular in response to the points when the parties are perpetrator and victim of domestic made by my noble and learned friend Lord Mackay of abuse, and are unrepresented, the need for engagement Clashfern and others, that because this amendment can become an occasion for intimidating behaviour has been supported by the Magistrates’ Association, or bullying of the victim by the perpetrator. That need we have given it very careful consideration. not even be deliberate, though it often is. Even if As the noble Baroness, Lady Hamwee, explained, I intimidation is not explicit in court, it may be effected am as every bit as concerned as her, and indeed the by implied threats of what might happen later, or even noble Lord who is proposing the amendment, to ensure by fear on the victim’s part—even if without justification that domestic abuse victims are adequately protected —of what might happen later. in the family courts. It is for that reason that the As discussed in earlier groups, the mere presence of Government are already taking decisive steps to act on the parties together in court can cause distress, the recommendations of the Expert Panel on Harm in intimidation, or trauma to victims. The outcome can the Family Courts, in response to which we published be that victims are deterred from bringing proceedings our implementation plan in June 2020. at all. The experience of the proceedings can be grossly The Bill contains various measures designed to traumatic, to the extent of causing lasting harm, and protect domestic abuse victims in family proceedings just outcomes can be made that much more difficult to and across the other jurisdictions. In that context, achieve. So, it is completely right that the court should I bear in mind the point made by the noble Lord, Lord be able to prohibit engagement by a party that unduly McConnell of Glenscorrodale: the human impact that distresses the victim in the way set out in this amendment, domestic abuse has, and that it can require some bravery whether that engagement be direct by the perpetrator to go to and appear in court in those circumstances, or indirect through others. Yet, if the parties have no a point also made by the noble Lord, Lord Marks. means to engage at all, there may be opportunities missed Therefore, within the court environment, our provisions for resolving conflict or, at least, for making the issues on special measures made it clear that the victims of clearer and enabling the court to achieve safer outcomes. domestic abuse and other parties or witnesses are In cases where the parties are not represented, it is eligible for special measures such as a screen during obviously sensible for there to be provision for proceedings, where the court is satisfied that the quality representation to be arranged. As the amendment of their evidence is likely to be diminished due to their proposes, that should involve, in appropriate cases, the vulnerability. In that context, on the point put to me instruction of a court-appointed lawyer—not just for by the noble Lord, Lord McConnell of Glenscorrodale, the perpetrator but for the victim as well. That is what regarding the position of children, Clause 3(2) provides the amendment proposes and I firmly believe it is that any reference in the Bill to a victim of domestic right to do so. For my part, I believe that justice would abuse be best done by ensuring that full legal aid is available “includes a reference to a child who … sees or hears, or experiences for both parties to domestic abuse proceedings throughout the effects of, the abuse, and … is related to A or B.” those proceedings, which often last through several Therefore, the Bill is structured very much with victims hearings, as the noble Lord, Lord Rosser, my noble of domestic abuse, who may include children, firmly friend Baroness Hamwee and the noble Lord, Lord in mind. McConnell, have said. The noble Lord, Lord McConnell, It is not entirely clear from the noble Lord’samendment also highlighted the real risk of deterring litigants whether the intention is that “direct or indirect from bringing or pursuing proceedings once they engagement” during proceedings be confined to the are under way, by the absence of arrangements for court setting, by which I mean what goes on in the representation. courtroom itself, or extend more widely for their duration, This amendment does not go as far as we would as set out in debate by my noble and learned friend like, but I know many noble Lords believe that full Lord Mackay of Clashfern and repeated by the noble legal aid for both parties should be the outcome. Lord, Lord Marks of Henley-on-Thames. There is Meanwhile, it would fill an important gap by preventing often a need for what my noble and learned friend intimidation of victims by perpetrators during the called personal and direct contact between parties in 2193 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2194

[LORD WOLFSON OF TREDEGAR] domestic abuse. We have made a public commitment such proceedings. In that regard, one must bear in to look at the capital thresholds for victims of domestic mind that under Part 3 of the Family Procedure Rules abuse where these apply. However, at the moment, the 2010, the court can make a participation direction. legal aid agency is able to apply for an eligibility That can include the use of special measures, which waiver for victims of domestic abuse who are applying are a series of provisions to help a party or witness to for an injunction or other order for protection. Therefore, participate or give evidence in court proceedings. That an applicant for such an order may be eligible for legal is a range of measures available both to parties and aid even if they have income or capital above the witnesses to enable them to participate in an appropriate thresholds in the means test, although they may have manner. to pay a financial contribution towards their legal Beyond that, the courts have a range of protective costs. That review is ongoing, and we would seek to orders, such as non-molestation orders and restraining implement any final recommendations as soon as orders, that can be made to protect victims when they practicable after a public consultation. are not within the confines of the court building. In Coming back to the main thrust of the amendment, addition, when introduced by the Bill, domestic abuse however, for the reasons that I have set out I do not protection orders can be used to protect victims of believe that a new prohibition on direct or indirect domestic abuse outside the courtroom during proceedings. engagement is necessary, given the current and new That is because the DAPO brings together the strongest protections in the Bill. However, we will monitor their elements of the existing protective orders into a single effectiveness and continue to assess whether any further comprehensive and very flexible order that we believe measures should be necessary. Therefore, irrespective will provide more effective and longer-term protection for these purposes of the points that I have mentioned than the existing protective orders for victims of domestic of a lack of clarity in the amendment as to how legal abuse and their children. I underline the point that representatives would be remunerated as well as the there may be circumstances in which children are also lack of a requirement to consider alternatives to legal victims. So, for example, if children are giving evidence representation, for the reasons that I have set out as inside court, special measures may well be applicable points of principle, I invite the noble Lord to withdraw and the prohibition on cross-examination may also apply. the amendment.

3 pm Lord Rosser (Lab) [V]: I again thank the Minister I turn to one of the central points made by the for his considered response, particularly his comments amendment. It deviates significantly from the underlying at the end, which clarified in my mind the basis of the principles underpinning Clause 63 in relation to cross- Government’s lack of enthusiasm for the amendment. examination. I shall make three short points, some of As the Minister has clarified, the Government do not which have been anticipated by the noble Baroness, believe that the terms of the amendment are needed Lady Hamwee. First—and I suspect I will be dealing because the issues raised are covered by other measures with this point in more detail in the next group of in the Bill or existing provisions. It is not a case of amendments—the clause is explicit that any legal certain parts of the amendment not being particularly representative appointed by the court to carry out well worded or the wording leaving certain issues cross-examination will not be responsible to the party unresolved. in whose place they ask questions. By contrast, in the I thank all noble Lords who have spoken in this amendment it is the clear intention that the advocate debate for their contributions. I particularly thank the will represent the parties where engagement is prohibited noble and learned Lord, Lord Mackay of Clashfern, and will owe them all the duties of a lawyer to his or for adding his name to the amendment. Clearly, we her client. will want to reflect further on what the Minister has The second deviation from the principles underlying said, particularly the reasons for not accepting the Clause 63 is that the steps that must be followed before amendment—namely, that the issues raised are covered the court appoints a legally qualified representative by other measures in the Bill and by existing provisions. are different. There is no requirement in the amendment We will want to reflect on that and then determine that the court must consider alternatives to legal whether to bring this matter back at a later stage. I beg representation before inviting the parties to do so. By leave to withdraw the amendment. contrast, the clause makes that an express requirement. Thirdly, and significantly, the amendment does not Amendment 121 withdrawn. make any provision as to how a legal representative appointed by the court where engagement is prohibited The Deputy Chairman of Committees (Baroness Morris will be paid. There is no indication as to whether they of Bolton) (Con): My Lords, we now come to the are to be paid by the parties or, as will be the case for group beginning with Amendment 122. I remind noble those appointed to conduct cross-examination where Lords that anyone wishing to speak after the Minister that is prohibited by the party, from the public purse. should email the clerk during the debate, and that In that context, the noble Lord, Lord Rosser, raised anyone wishing to press this or anything else in this the broader issue of funding. I probably should not go group to a Division must make that clear in debate. into this in too much detail, given the narrower confines of this amendment, but the noble Lord will know that Amendment 122 we are currently conducting a review of the means test with regard to legal aid, as part of which we are Moved by Lord Marks of Henley-on-Thames specifically considering the experiences of victims of 122: Clause 63, page 45, leave out lines 16 and 17 and insert— 2195 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2196

“(7) A qualified legal representative appointed by the they are specifically prohibited from disclosing to court under subsection (6) is responsible to the those persons the security-sensitive material that is party, but must cross-examine the witness having being disclosed to them—in other words, the special regard to such directions as the Court may give to protect the witness from significant distress or to advocates are effectively sworn to secrecy. In those prevent the quality of the witness’s evidence from national security cases the special advocates cannot being diminished.” take instructions upon the secret material disclosed to Member’s explanatory statement them, nor can they consider with those whom they This amendment is intended to maintain the responsibility of represent how to deal with or respond to such material. the legally qualified representative to the party in whose interests In those circumstances they have an independence that the cross-examination is conducted while ensuring it is conducted is treated as precluding a responsibility to the persons with proper regard for risk of distress to the witness and risk that whose interests they represent. the quality of the witness’s evidence might be diminished. The position is quite different here. No issues of national security are involved. Secrecy is not an issue. Lord Marks of Henley-on-Thames (LD) [V]: My No material is withheld from the party represented. Lords, this group of amendments addresses the role of There is no bar on full discussion between the advocate a legally qualified representative appointed by the and that party. Indeed, if justice is to be done, there is court to conduct cross-examination under Clause 63 an imperative for the advocate to take full instructions in family proceedings or Clause 64 in civil proceedings. and to consider, in the light of the evidence and the The amendments also address the need for the availability party’s account of the facts, what questions should be of legal aid for both parties in domestic abuse proceedings. asked. Dealing first with those amendments relating to the The starting point has to be that the advocate owes role of court-appointed legal representatives, in each a responsibility to the client and I see no reason to such case a party, who typically, but not always, will be depart from that. The advocate should, for example, the perpetrator, is prohibited under the Bill from cross- owe the client a duty of care, and a duty to take examining a witness directly. In any such case, the instructions accurately, read the papers carefully and court will have considered whether there is a satisfactory approach the case on the basis of the client’s instructions. alternative means of enabling the witness to be cross- The advocate should be answerable to the client if he examined or of obtaining the evidence that the witness or she performs negligently, does not do the work, or would have given without cross-examination. For the fails to understand or appreciate the import of the moment, I find difficulty in seeing exactly how that evidence. Of course there will be some questions that would work unless there were other witnesses who it would be improper for the advocate to ask. In that could give evidence to the same effect as the evidence event, it is for the advocate to advise the client and, if that the witness might have given. necessary, to seek the direction of the judge before If the court cannot find alternative ways of getting putting such questions. It should be for the judge to the witness to give evidence before the court, it will determine what questioning is permissible and appropriate. have invited the party who, but for the prohibition, ThatiswhymyAmendments122and127wouldprovide would have conducted the cross-examination to instruct for the cross-examination to be conducted subject to a lawyer within a specified time to conduct the cross- “such directions as the Court may give to protect the witness from examination instead. If the party does not instruct significant distress or to prevent the quality of the witness’s such a lawyer—usually,one supposes, because of financial evidence from being diminished.” constraints—the court will consider appointing a qualified Those are the considerations that the court has to have legal representative regard to in appointing the advocate. In most cases, I “to represent the interests of the party” do not believe that directions such as that are likely to to conduct the cross-examination be necessary. The intimidation of a victim in these cases usually arises from the presence of the perpetrator “in the interests of the party”. as cross-examiner and/or the style of his cross- The proposed provisions are complicated but examination. Once a sensitive advocate is conducting unobjectionable so far. However, I am concerned by the cross-examination, attuned to the vulnerability of the proposals, in both family and civil proceedings, the witness and the advocate’s duty to the court, the that such an advocate risk of intimidation is reduced. “is not responsible to the party”, However, if there are areas where the advocate a point mentioned by the noble Lord, Lord Wolfson, advises that particular questions or lines of questioning in the last group but which he politely deferred for cross the line, that is usually on the ground that consideration to this one. I regard this as a dangerous such questions are irrelevant or unhelpful. The party precedent that is inimical to a fundamental principle will usually accept the advocate’s advice, but if there of our court process, which is that the advocate owes a are lines of questioning where the party persists in duty to his client, although that duty is at all times wishing to pursue questions that the advocate regards subject to the duty that the advocate owes to the court. as inappropriate, it should be for the judge, not the The analogy that applies to what is proposed here is advocate, to decide whether the questions may be asked. with special advocates, who are appointed for cases There is no good reason for removing the advocate’s before the Special Immigration Appeals Commission responsibility to the client, fundamentally undermining or various other cases where issues of national security that responsibility. are involved. In such cases, the reason why those I have had the opportunity to discuss this issue with appointed as special advocates do not carry a responsibility the noble Lord, Lord Wolfson, and I am grateful to to the persons whose interests they represent is that him for the attention he has given to it. I understand 2197 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2198

[LORD MARKS OF HENLEY-ON-THAMES] Lord Wolfson of Tredegar (Con): My Lords, I am the Government’s position to be that where lawyers are grateful to the noble Lord, Lord Marks, for setting out appointed to conduct cross-examination in circumstances the rationale for these amendments. As he said, I such as these, such lawyers should, in a way, be deferred my comments on the particular point of an independent, so that they may decline to ask questions advocate’s duty to this group because his amendments which the party whose interests they represent wishes directly raise that issue. I am grateful to him for the to have put to the witness. They should be able to say discussions we had about this matter, as indeed we to the client, “I’m not putting that”, without having to have had about several matters arising from the Bill. be answerable to the client for that decision. At first Amendments 122 and 127 would have the same blush I see the force of that, but on analysis it is quite effect in relation to a qualified legal representative unfair, because the party represented is in fact denied appointed by the court to conduct cross-examination true representation, and such an arrangement blurs in family and civil proceedings respectively. It is the the function of the judge and the advocate, to which I Government’s intention that such a court-appointed referred. In proceedings of all types, judges will frequently representative is not responsible to any party. They rule questions out of order. That is all part of the trial are, in effect, appointed by and responsible to the process and I see no basis for changing it here. court in relation to their conduct of the cross-examination, Amendments 123 and 128 raise questions of assistance having regard to guidance issued by the Lord Chancellor by court-appointed advocates and legal representation in connection with this role under what we intend in domestic abuse proceedings more generally. They should become Section 31Y(1) of the Matrimonial and make broadly two points. The first is that an appointment Family Proceedings Act 1984. of an advocate for the limited purpose of conducting As I think the noble Lord, Lord Marks, accepts, the a single cross-examination is unlikely significantly to amendmentswouldalterfundamentallytherepresentative’s enhance either the fairness of the proceedings or the role by making them responsible to the party who has chance of their leading to a just outcome—a point beenprohibitedfromcarryingoutsuchcross-examination. touched on in the last group. While the tabled amendments contain safeguards to The answer to this difficulty is that the court should counter the resulting tension between being responsible be able to ensure that the advocate will remain in place to the prohibited party on the one hand and needing to for as long as needed in the proceedings to assist both protect domestic abuse victims on the other by requiring the parties and the court to deal with the case justly, the representative to have regard to protective directions in line with the overriding objective, having regard, issued by the judge, this does not affect the Government’s in family cases, to dealing with it justly and to any view that, as a matter of principle, the representative welfare issues involved. One can imagine the frustration who has been appointed by the court should not be that judges would feel when, having had the assistance responsible to the party. That is particularly the case of an experienced court-appointed advocate for the when that party could have, but has not, appointed his cross-examination of the victim, the advocate’s role in own lawyer. Had he done so, a court-appointed lawyer the case is brought to an end and the judge is left with would not have been required and the lawyer appointed the parties in court in as conflictual a situation as they by him would have owed him a duty. were before the proceedings started and with no help Therefore, the Government do not want this to in resolving it. become a client-lawyer relationship. The advocate is 3.15 pm appointed for only one function: to ensure that the best evidence is obtained fairly from the witness in My second point is that the only real, lasting and cases where the party is prohibited from conducting just way to ensure that domestic abuse proceedings are the cross-examination by themselves. Altering this and genuinely fair is to ensure that legal aid is available to introducing such a relationship between the party and both parties. My amendments would allow the Lord the advocate would, in the Government’s view, be a Chancellor to ensure that, where the court appoints a mistake. lawyer for a party, regulations can provide for legal aid to be granted to either or both the parties for The rules pertaining to the advocate scheme will be the remainder of the proceedings, irrespective of the set out in statutory guidance and relevant procedural restrictions contained in the LASPO Act, which is now rules. Consistent with what I have been explaining to under review. the Committee, the focus will be on ensuring that the A more generous view of legal aid in domestic function of a cross-examination is carried out—that abuse proceedings, and of the evidential and financial the witness is questioned on the evidence that they thresholds to qualify for it, has long been called for by have provided. Before these provisions are commenced, the legal professions and almost everyone who knows we will work with relevant stakeholders to develop and this field. The review is of course helpful, but we fear it finalise statutory guidance, to be issued by the Lord may not go far enough. I hope it does and that the Chancellor, for the appointed legal representatives to Minister helps it on its way, but meanwhile I urge the assist them in discharging this role. We will work with Government to accept the amendments, or at least to the appropriate rule committees to develop suitable consider them at this stage, and to come back on Report court rules and practice directions to provide a clear with proposals that meet our concerns. I beg to move. structure and process for the operation of these provisions. For those reasons, we take issue with the proposal The Deputy Chairman of Committees (Baroness Morris in the amendment. Although I hear what the noble Lord, of Bolton) (Con): The noble Lord, Lord Naseby, who Lord Marks, said about SIAC and court-appointed was due to speak next, is still in the debate in Grand advocates there, those are completely different Committee, so I call the Minister. circumstances and there is no read-across from SIAC 2199 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2200 to these provisions. The way that the Bill is set out and careful response—is right about one thing, which reflects the Government’s deliberate intention and the is that he has not convinced me of the difference in clauses have been designed with this in mind. responsibility to the client between court-appointed The framework for the provision of publicly funded advocates and normal lawyers. I accept that the role of legal representation is set out in the LASPO Act. legal representative would be altered by my amendments, While I have listened carefully to the arguments made and that is all to the good. on this point, both today and in previous discussions, One point made by the Minister can be considered I do not agree that we should mix the different purposes in a way that he did not. It is a precondition to the of LASPO and these clauses as has been proposed. As appointment of a legal representative by the court that anticipated by the noble Lord, Lord Marks, I refer to the client or party who would have conducted the the review that I mentioned in the last debate. cross-examination, but for the prohibition, should have Amendments 123 and 128 relate to the provision of been given the opportunity to instruct his own lawyer. legal aid. Legal aid is available for family cases where That lawyer would have had full responsibility to the there is evidence of abuse, subject to domestic violence, client in the normal way—full duty of care, answerable or child abuse evidence requirements, and the relevant in negligence and everything else. Generally, Members means and merits tests. Wehave expanded the acceptable of the House will appreciate that the reason that that forms of evidence and removed all time limits on condition is not often met—in other words, the client providing that evidence. As I have said, we are also does not appoint a lawyer—is lack of funds, not that reviewing the means test. The Government are clear he or she, usually he, does not wish for the lawyer to that victims of domestic abuse must have access to the have a responsibility to the client. There is very little help that they need, including to legal aid. The review distinction to draw between the two cases, apart from of the means test is assessing the effectiveness with the fact that the rich client gets the lawyer and the poor which that test protects access to justice. As I said in client has a court-appointed lawyer. the last debate, we are specifically considering the The Minister referred to the safeguards that I built experience of victims of domestic abuse. I will not into the amendments in their directions to the judge— repeat the other points I made in that context in the “such directions as the Court may give to protect the witness from previous debate. significant distress or to prevent the quality of the witness’s However, legal aid may also be available through evidence from being diminished.” the exceptional case funding scheme, where a failure There may be further room for discussion about those to provide legal aid would breach or risk breaching the directions and the guidelines within which cross- ECHR or retained enforceable EU rights. As I have examination by a lawyer with a responsibility to the explained, the Bill includes provisions that give the client could take place. I will carefully read the guidance court a power, in specified circumstances, to appoint a that he mentions by which court-appointed lawyers publicly funded legal representative to conduct cross- will conduct their cross-examinations. examination. Where a prohibition on cross-examination I completely reject the Minister’s explanation that applies, the court would first consider whether there SIAC involves different issues, as a justification for are alternatives to cross-examination and invite the removing the responsibility.It is precisely because SIAC party to appoint a legal representative to conduct the special advocates and their appointment involve different cross-examination. In circumstances where the party issues that the responsibility is removed. I explained does not, the court considers whether it is in the that in opening. That point does not seem to have been interests of justice so to appoint. Therefore, publicly treated with full understanding. funded legal representation is intended to conduct the Of course I will withdraw this amendment to enable cross-examination, but not to go beyond it. That is the further review. The point about legal aid is one of sole reason why the advocate is appointed. accessibility. We know that there is a review under way In that context, we must appreciate the need to and I accept that we should not be reviewing this question protect against unnecessary expenditure of public funds in Committee, but the problem is one of evidential or alteration of the legal aid regime without a wholesale and financial accessibility. Until both parties can be and proper examination of the ramifications of doing represented in domestic abuse proceedings, it is difficult so. In circumstances where this provision for a publicly to see that proper representation will be achieved. funded advocate is put in the Bill for a limited and With those points,I beg leave to withdrawthe amendment. specific—if I can still use that phrase—purpose, it would be wrong in principle for us to conduct a review of Amendment 122 withdrawn. legal aid provisions in Committee. I fear that I may not have been able to persuade the Amendment 123 not moved. noble Lord, as I was not able to persuade him earlier, of the merits of the Government’s approach. I am sure Clause 63, as amended, agreed. he will tell me that I have not, but I hope that I have been able to explain the Government’s approach and thinking on this issue. In those circumstances, I invite The Deputy Chairman of Committees (Baroness Morris him to withdraw the amendment. of Bolton) (Con): My Lords, we now come to the group beginning with Amendment 124. I remind noble Lords that anyone wishing to speak after the Minister Lord Marks of Henley-on-Thames (LD) [V]: My should email the clerk during the debate and that Lords, unquestionably the Minister—to whom I am anyone wishing to press this or anything else in this very grateful, for both his engagement and his considered group to a Division must make that clear in debate. 2201 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2202

3.30 pm (b) any proceedings under the Army Act 1955, the Air Force Act 1955, or the Naval Discipline Act 1957 (whether before a court-martial or before any other Clause 64: Prohibition of cross-examination in person court or person authorised under any of those Acts in civil proceedings to award a punishment in respect of an offence); (c) any proceedings before a Standing Civilian Court Amendment 124 established under the Armed Forces Act 1976; Moved by Lord Marks of Henley-on-Thames “specified offence” means an offence which is specified, or of a description specified, in regulations made by 124: Clause 64, page 46, line 39, at end insert— the Lord Chancellor. 85EA Prohibition of cross-examination in person: victims (6) The following provisions (which deem a conviction of offences of a person discharged not to be a conviction) do (1) In civil proceedings, no party to the proceedings not apply for the purposes of this section to a who has been convicted of or given a caution for, or conviction of a person for an offence in respect of is charged with, a specified offence may cross- which an order has been made discharging the examine in person a witness who is the victim, or person absolutely or conditionally— alleged victim, of that offence. (a)section14of thePowersof CriminalCourts(Sentencing) (2) In civil proceedings, no party to the proceedings Act 2000; who is the victim, or alleged victim, of a specified (b) section 80 of the Sentencing Code; offence may cross-examine in person a witness who has been convicted of or given a caution for, or is (c) section 187 of the Armed Forces Act 2006 or any charged with, that offence. corresponding earlier enactment. (3) Subsections (1) and (2) do not apply to a conviction (7) For the purposes of this section “offence” includes or caution that is spent for the purposes of the an offence under a law that is no longer in force. Rehabilitation of Offenders Act 1974, unless evidence 85EB Prohibition of cross-examination in person: persons in relation to the conviction or caution is admissible protected by injunctions etc in, or may be required in, the proceedings by virtue (1) In civil proceedings, no party to the proceedings of section 7(2), (3) or (4) of that Act. against whom an on-notice protective injunction is (4) Cross-examination in breach of subsection (1) or in force may cross-examine in person a witness who (2) does not affect the validity of a decision of the is protected by the injunction. court in the proceedings if the court was not aware (2) In civil proceedings, no party to the proceedings of the conviction, caution or charge when the who is protected by an on-notice protective injunction cross-examination took place. may cross-examine in person a witness against whom (5) In this section— the injunction is in force. “caution” means— (3) Cross-examination in breach of subsection (1) or (2) (a) in the case of England and Wales— does not affect the validity of a decision of the court in the proceedings if the court was not aware of the (i) a conditional caution given under section 22 of the protective injunction when the cross-examination Criminal Justice Act 2003, took place. (ii) a youth conditional caution given under section (4) In this section “protective injunction” means an 66A of the Crime and Disorder Act 1998, or order,injunctionorinterdictspecified,orof adescription (iii) any other caution given to a person in England specified, in regulations made by the Lord Chancellor. and Wales in respect of an offence which, at the time the caution is given, the person has admitted; (5) For the purposes of this section, a protective injunction is an “on-notice” protective injunction if— (b) in the case of Scotland, anything corresponding to a caution falling within paragraph (a) (however (a) the court is satisfied that there has been a hearing at described) which is given to a person in respect of which the person against whom the protective an offence under the law of Scotland; injunction is in force asked, or could have asked, for the injunction to be set aside or varied; or (c) in the case of Northern Ireland— (b) the protective injunction was made at a hearing of (i) a conditional caution given under section 71 of the which the court is satisfied that both the person Justice Act (Northern Ireland) 2011, or who applied for it and the person against whom it is (ii) any other caution given to a person in Northern in force had notice. Ireland in respect of an offence which, at the time 85EC Prohibition of cross-examination in person: evidence the caution is given, the person has admitted; of domestic abuse “conviction” means— (1) In civil proceedings, where specified evidence is (a) a conviction before a court in England and Wales, adduced that a person who is a witness has been the Scotland or Northern Ireland; victim of domestic abuse carried out by a party to (b) a conviction in service disciplinary proceedings (in the proceedings, that party to the proceedings may England and Wales, Scotland, Northern Ireland, or not cross-examine the witness in person. elsewhere); (2) In civil proceedings, where specified evidence is (c) a finding in any criminal proceedings (including a adduced that a person who is a party to the proceedings finding linked with a finding of insanity) that the has been the victim of domestic abuse carried out by person concerned has committed an offence or a witness, that party may not cross-examine the done the act or made the omission charged; witness in person. and “convicted” is to be read accordingly; (3) In this section— “service disciplinary proceedings” means— “domestic abuse” has the meaning given by sections 1 (a) any proceedings (whether or not before a court) in and 3 of the Domestic Abuse Act 2021; respect of a service offence within the meaning of “specified evidence” means evidence specified, or of a the Armed Forces Act 2006 (except proceedings before description specified, in regulations made by the a civilian court within the meaning of that Act); Lord Chancellor. 2203 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2204

(4) Regulations under subsection (3) may provide that Finally, in other cases not coming within the first any evidence which satisfies the court that domestic three categories of cases, the court may prohibit—that abuse, or domestic abuse of a specified description, is, it has the power to prohibit—direct cross-examination has occurred is specified evidence for the purposes of this section.” of any witness by a party if the court takes the view that two conditions are met. The first condition is that Member’s explanatory statement the quality of the witness’s evidence would be likely to This amendment and the other amendments to Clause 64 in the name of Lord Marks of Henley-on-Thames would allow for be diminished if direct cross-examination were permitted the same prohibition of direct cross-examination in civil proceedings and improved if it were prohibited. The second condition as that which is available in family proceedings. is that the witness’s distress would be more significant under direct cross-examination by the party than were Lord Marks of Henley-on-Thames (LD) [V]: My the cross-examination differently conducted. Before Lords, could I have a moment? I apologise for the prohibiting direct cross-examination in such a case, delay. Following so closely on from my last speech, it the court must be satisfied that the prohibition would was difficult to see where we were. not be contrary to the interests of justice. Having spent some considerable time this afternoon So while those provisions may be complex, they are, introducing my amendments in groups 1 and 4, I will by and large, admirable, as they cater effectively for all be relatively brief in introducing this group. The circumstances where a vulnerable witness is liable to amendments are intended to extend to all civil cases be directly cross-examined by a party to proceedings the same protection from direct cross-examination by of whom she or he is plainly frightened, or where a a party as is to be afforded in family cases to victims vulnerable party may be put in the position of being and vulnerable witnesses where certain conditions obliged to cross-examine directly a witness who has in are met. the past abused that party. It goes without saying that The reason for my relative brevity in this group is such a cross-examiner may be afraid of the consequences that the principles upon which I contended in the first of putting questions to such a witness. But the important group that special measures should be available on the point to note is that the first three categories of case same basis for civil proceedings as for family proceedings involve mandatory prohibition. apply with equal force to the prohibition of direct In civil cases, however, for a reason that once again cross-examination. Therefore, I will not dwell on them I do not understand, there is no provision in Clause 64 again, save to make the point once again that there is of the Bill for the mandatory prohibition of direct no justifiable distinction to be drawn between the cross-examination in any of the categories 1 to 3—that trauma likely to be caused to the vulnerable by direct is,commissioner-specifiedoffences,amandatoryinjunction cross-examination in civil cases and such similar trauma in force protecting a party, or evidence of domestic as may arise in family cases. abuse by a party against a witness or a witness against However, because the proposals are complex, the a party. All that remains is the fourth category of amendment is long. Clause 63 inserts new Clauses protection: the discretionary and conditional protection 31Q to 31U into the Matrimonial and Family Proceedings offered in family cases that do not fall into the first Act 1984, which broadly prohibit direct cross-examination three categories. in family cases in a number of circumstances. First, Again, I understand from the Minister—who has direct cross-examination by someone convicted of, been keen on this issue, as on all others, to listen to cautioned for or charged with a specified offence—that noble Lords and to help—that the Government’sposition is, an offence specified by the Lord Chancellor—of a is that civil proceedings lack the intimacy of family witness who is a victim or alleged victim of that proceedings and so do not merit the same protection offence is prohibited and, importantly, vice versa. No for vulnerable witnesses and parties. However, as I said victim or alleged victim of such an offence may directly in the earlier group, there are literally thousands of cross-examine the perpetrator or alleged perpetrator. civil cases—as the noble Lord recognised—of many Secondly, direct cross-examination by either party of types involving vulnerable parties and witnesses, and the other is prohibited in cases where one party has exactly the same considerations apply in those civil obtained an on-notice protective injunction which is cases as apply in family cases. I would suggest that the in force at the time of the proceedings. Thirdly, in parties and witnesses involved in them should be entitled cases where specified evidence—that is, evidence of a to exactly the same protection from direct cross- description specified by the Lord Chancellor in examination on the same basis as in family cases. I regulations—is adduced that a witness in proceedings mention before closing that this view is shared by the has been the victim of domestic abuse carried out by a Civil Justice Council, the Law Society, Refuge, Women’s party to the proceedings, that party may not directly Aid, and many others. cross-examine that witness. Correspondingly, where I invite the Government to reconsider whether they there is such evidence that a party to proceedings has wish to stick with this illogical distinction or to instead been the victim of domestic abuse carried out by a come back on Report having ironed it right out of the witness, that party may not directly cross-examine that Bill. I beg to move. witness. What is important is that these three categories of cases involve a prohibition that is absolute. That offers Baroness Bennett of Manor Castle (GP) [V]: [Inaudible.] vulnerable parties and witnesses an assurance that there will be no direct cross-examination that offends Lord Parkinson of Whitley Bay (Con): I am afraid against those provisions in any of the cases covered by we cannot hear the noble Baroness. She might still be the prohibition. on mute. 2205 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2206

Baroness Bennett of Manor Castle (GP) [V]: Let me I understand entirely the noble Lord’s shorthand point, try an alternative technology—apologies, my Lords. but I get anxious that sometimes, that sort of shorthand It is a great pleasure to follow the noble Lord, Lord becomes the presumed fact or reality. That has been Marks of Henley-on-Thames, for the second time, on the case throughout Committee stage—nowhere more this group of amendments, on which it is clear that he obviously than in the discussion about cross-examination has done a great deal of work, and for which he —and I worry that that might prejudice justice and deserves great thanks. I am simply here again as a fairness in proceedings. As the noble Lord, Lord Paddick, support act for the reasons that I set out in the first rightly stated, it is up to the court ultimately to decide group of amendments we addressed today. I think the onguiltorinnocence.Itseemstomethatcross-examination arguments of justice and compassion are the same in is a key part of making such weighty decisions. Testing this group of amendments as they were in that first the evidence thoroughly is very important, and demands group. for special measures for cross-examination should not Sitting in many courtrooms over the years as a compromise that. journalist, looking at the witnesses, you think about We have already heard the way in which this can what the experience of being a witness is like. Earlier, happen. We have heard the noble Lord, Lord Marks I used the theoretical but eminently likely example of of Henley-on-Thames, say,in calling for special measures civil proceedings arising out of the collapse of a farm in an earlier set of amendments, that if a witness claims business that is also associated with domestic abuse. that they are frightened, this can be seen as sufficient Later on, we will be talking about attempts to insert reason to treat the alleged perpetrator as a perpetrator, into the Bill an offence of non-fatal strangulation or and the alleged victim is secure in special measures. suffocation. If we think about the actual experience of I just worry about a slippery slope. Because of the a witness who suffered that kind of assault and is then importance I place on cross-examination, in relation expected to stand in a courtroom and look in the eye to the distinction between family courts and civil the person responsible for that assault, and who is courts, I would actually prefer that a legal representative expected to look strong, stand tall and not seem what be appointed by both courts in order to facilitate the anyone might determine as shifty or uncertain, we can most objective and thorough cross-examination and imagine the pressure that puts on such a witness. to make sure that the evidence is objectively tested. In his answer to the first group of amendments, the 3.45 pm Minister said, “Well, there is always judge’s discretion.” Turning to this set of amendments and why we We know from many other debates in your Lordships’ need special measures in civil courts, I just do not feel House on the Bill that much domestic abuse is not fully that this requires legislation. Interchangeability between reported. Indeed, we know that non-fatal strangulation civil courts and family courts will confuse things. The and suffocation are sometimes recorded simply as arguments in favour that have been advanced so far common assault. Full information about what witnesses emphasise the witness’s vulnerability as a reason to may have been subjected to may not be available and bring into law the demand for special measures in civil full reporting may not have happened, so it may not be courts. I worry about that emphasis on vulnerability, open to a judge to be in the right place to rule on this. because this might become an overly deterministic There should be an automatic protection available to label. Civil cases may be intimate and then, as indeed witnesses who need it. the Bill already states, the judge has discretion to act in I will be brief because we have a great deal to do, relation to special measures. But as we have heard, but I believe that this is an important set of amendments, civil cases may involve a multitude of different issues and I really hope that the Government will reconsider. that arose many years later and do not directly concern either abuse or alleged domestic abuse. There is a Baroness Fox of Buckley (Non-Afl): My Lords, I danger here that we will always see the witness as a will start by making a general point about an issue vulnerable victim, even if the argument is over something that has been concerning me regarding the amendments relatively trivial, such as property—which, of course, is on cross-examination on special measures. I apologise not always trivial. that I am not a lawyer, and if I have not quite have Domestic abuse can be traumatising but it can be grasped what Committee stage is. I could have been overcome, and often is. Are people for ever to be jumping up to speak to all these amendments, so I victims and assumed to be traumatised in all contexts have bundled my comments into one. I hope that will in perpetuity, in every single instance of a civil case in work. If I have got it wrong, I will not do it again. thecourts?Surely,thatwouldbedisempowering.Ironically, it can re-victimise people—often women—by for ever I have found the noble Lord, Lord Paddick, hugely seeing them as victims in need of protection and helpful and insightful throughout these Committee special measures. Conversely, even if a perpetrator is discussions, but something he said on Monday troubled convicted, are they always to be seen as an abuser in all me. He said: contexts in perpetuity, in every instance where they “My Lords, for reasons of brevity and clarity, I will refer to might find themselves in a civil court? We have already the person to whom a domestic abuse protection notice is given as the ‘perpetrator’, rather than the ‘alleged perpetrator’or ‘defendant’, heard how important it is not to dismiss spent convictions and the person the notice seeks to protect as the ‘victim’, rather under the headings of “patterns of behaviour” or than the ‘complainant’, the ‘alleged victim’ or ‘plaintiff’.” “repeat offenders”. We must ensure, therefore, that we He went on to say: hold our nerve in not compromising on our commitment “Clearly it will be for the court to decide, ultimately, whether they to drawing a line,and to the humane aims of rehabilitation. are in fact perpetrator and victim.”—[Official Report, 1/2/21; To go back to where I started, I support the noble col. 1925.] Lord, Lord Paddick, on that issue. 2207 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2208

I will be rejecting these amendments. The civil The overriding concern is to ensure that justice is done courts are distinct and different. Treating people who in the particular case, which is why leaving it to the may well have been victims as perpetually victims in discretion of the judge in an individual case to decide all instances does them no favours whatsoever. when a ban is necessary is based on an unlimited range of factors, including, obviously, the views of parties to Lord Wolfson of Tredegar (Con): My Lords, as the the proceedings, any past convictions or the behaviour noble Lord, Lord Marks of Henley-on-Thames, has of parties during the trial. That is how we suggest this explained, these amendments intend to bring the matter is best resolved. provisions relating to prohibition of cross-examination Having said all that, I respectfully say that the noble in civil courts into line with the provisions on the same Lord, Lord Marks, has put forward, as one would measure in family courts. As the noble Lord explained, expect from him, a cogent and well-argued case for his we have covered some of the questions of principle amendment. As such, while we consider that the approach already in earlier groups. He indicated that he was taken in the Bill in relation to the civil courts is well therefore going to be brief—as he indeed was—and I founded, and certainly not—to use a word adopted hope that both he and the Committee will not take it earlier in this debate—illogical, I hear the arguments he as any disrespect if I am equally brief in response, given put forward and undertake to consider these amendments that we have canvassed the points of principle already. further ahead of Report. I will continue to listen with The noble Baroness, Lady Bennett of Manor Castle, interest to any arguments made by him or others in described herself as a “support act”, an appellation this regard. Therefore, given this undertaking, I hope with which I respectfully but firmly disagree. She that the noble Lord will be content to withdraw his spoke eloquently in an earlier group of her personal amendment. experience of seeing how court procedures operate in cases involving domestic abuse, and her contribution Lord Marks of Henley-on-Thames (LD) [V]: My to this short debate has been equally valuable. I hope Lords, once again, I am grateful to all noble Lords that the noble Baroness, Lady Fox of Buckley, will who have spoken in this debate. I certainly agree with forgive me if I gently point out to her that she should the noble Lord, Lord Wolfson, that the noble Baroness, not apologise for not being a lawyer. What is apparently, Lady Bennett of Manor Castle, has proved herself based on my short time here, a repeated cause for much more than a support act. I say to her and the apology in this House is generally regarded as a badge noble Baroness, Lady Fox of Buckley, that there is a of honour everywhere else. crying need in these legal debates for experience from Turning to the substance, let me explain that the outside the law to inform our debates and bring the approach we have taken in civil cases differs from that lawyers down to earth. taken in family proceedings for good reasons. The clause Many noble Lords may well have formed the view dealing with banning cross-examination of vulnerable that the differences between the noble Lord, Lord Wolfson, parties or witnesses stems from the report by the Civil and me are arcane legal arguments, in some senses—but Justice Council, to which the noble Lord, Lord Marks, we can only have those arcane arguments in a relevant also referred, and which I spoke about when commenting way if we have real-world experiences to back them up. on the amendments to Clause 62. Some of these will be ours, but the noble Baroness, The council recommended that the prohibition of LadyBennettof ManorCastle,notonlyclearlydemonstrated cross-examination by a self-represented party should how the principles that apply to cross-examination in be extended to cover civil proceedings, thereby ensuring civil proceedings also apply in family proceedings; she some parity with the criminal and family jurisdictions. also graphically described the personal experience of Importantly,however,the Civil Justice Council cautioned witnesses in court proceedings. I challenge anyone to that the ban or prohibition should not be absolute: explain why that experience differs between the two rather, it should be left to the court’s discretion, given types of proceeding, where witnesses are, or are liable that, as I explained in an earlier group, the civil and to be, victims of domestic abuse and are vulnerable. family jurisdictions are very different as regards the Although I greatly valued the contribution of the types of cases, with the civil jurisdiction having a noble Baroness, Lady Fox of Buckley, I do not agree much wider range. As I also said earlier, those cases with her that this legislation or these and other can have a much broader range of circumstances, where amendments overstate the significance of vulnerability there is no prior close connection between the parties, or trauma, when the evidence is serious and extensive as there would generally be in the family courts. We of how deep vulnerability can go, how serious the trauma have therefore tailored our approach to allow for those can be and how long-lasting it can be as a result of differences, which is why the provisions in respect of domestic abuse. That is the reason why the Government cross-examination in the civil jurisdiction differ from have brought this Bill; it is why it is widely welcomed those in family proceedings. I hope that that explains around the House and the reason for the protections my thinking to the noble Lord, Lord Marks. that are afforded to witnesses and parties in court In response to points made by the noble Baronesses, proceedings. Lady Bennett of Manor Castle and Lady Fox of Buckley, I come to the noble Lord, Lord Wolfson, who I say it is important that two things are fundamental. frankly accepts the differences and parallels between First, it is important that protection is available to all us in respect of cross-examination in cases of special witnesses who need it—this was the point made by the measures. I do not accept that a discretionary system noble Baroness, Lady Bennett. In response to the in relation to the prohibition of cross-examination is point of the noble Baroness, Lady Fox, the court will an acceptable substitute. One of the principal reasons of course look at all circumstances in that regard. for this is that a party or witness has no assurance that 2209 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2210

[LORD MARKS OF HENLEY-ON-THAMES] Member’s explanatory statement there will be a prohibition in a discretionary case. This new Clause seeks to change the presumption that parental She—or, in some cases, he—is totally reliant on judicial involvement furthers the child’s welfare when there has been discretion having regard, as the Minister says, to all domestic abuse. It also prohibits unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences, or sorts of other factors, including previous convictions where there are ongoing criminal proceedings for domestic abuse. and all the circumstances of the case, in relation to knowing whether a prohibition of cross-examination Lord Rosser (Lab) [V]: Amendment 130 would include will be extended. This means that such a witness or in the Bill a new clause that would disapply the party is exposed to the risk that there will be direct cross- presumption that parental involvement furthers a child’s examination, which they may well be unable to face. welfare in cases where there has been domestic abuse. I am very grateful to the Minister for his undertaking The new clause would also preclude unsupervised contact that he will consider these amendments further; I know for a parent awaiting trial, or on bail, for domestic abuse that that undertaking is given with every intention that offences or where there are ongoing criminal proceedings he will do so. I and others remain completely open to for domestic abuse. I thank the noble Baronesses, discussing these amendments with him and refining Lady Gardner of Parkes, Lady Jones of Moulsecoomb them if necessary, but we hold the basic belief that and Lady Meacher, for adding their names to this vulnerable witnesses need protection from direct cross- amendment. Amendment 130A, in the name of the noble examination on exactly the same basis in civil cases as Baroness, Lady Jones of Moulsecoomb, would further is to be extended in family cases. Saying that, I beg leave extend prohibitions on unsupervised contact, and I to withdraw Amendment 124. look forward to hearing her speak to her amendment. Thepurposeof thenewclausesetoutinAmendment130 Amendment 124 withdrawn. is to act to protect the lives of children who live with Amendments 125 to 129 not moved. domestic abuse where the cases end up in the family court. Between 2006 and 2019, at least 21 children were Clause 64 agreed. killed during contact with fathers who were perpetrators of domestic abuse. The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con): My Lords, we now come to the 4 pm group beginning with Amendment 130. I remind noble The Children Act 1989, as amended by the Children Lords that anyone wishing to speak after the Minister and Families Act 2014, states that the family court is should email the clerk during the debate. Anyone “to presume, unless the contrary is shown, that involvement of wishing to press this or anything else in this group to a that parent in the life of the child concerned will further the Division must make that clear in debate. child’s welfare.” Concerns were expressed at that time that this would strengthenthelikelihoodof a“contactatallcosts”approach. Amendment 130 Although judicial guidance makes it clear that: Moved by Lord Rosser “The court must in every case consider carefully whether the 130: After Clause 64, insert the following new Clause— statutory presumption applies, having particular regard to any “Proceedings under the Children Act 1989 allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm”, (1) Part I of the Children Act 1989 is amended as follows. this is not as strong as the legal presumption in the (2) In section 1 (welfare of the child) after subsection (2B) Children Act 1989. insert— The “pro-contact” presumption, even where there “(2C) Subsection (2A) shall not apply in relation to a parent where there has been domestic abuse which has been domestic abuse, can lead to unsafe contact has affected the child or other parent. decisions. The Women’s Aid Nineteen Child Homicides (2D) Evidence of domestic abuse may be provided in report documents the cases of 19 children in 12 families one or more of the forms set out in regulation 33(2) who were killed in circumstances relating to child of the Civil Legal Aid (Procedure) Regulations 2012.” contact by a father who was a perpetrator of domestic (3) Part II of the Children Act 1989 is amended as follows. abuse. Women’s Aid also found that in the cases where (4) In section 9 (restrictions on making section 8 orders) contact was arranged through the courts, abuse of the after subsection (7) insert— mother was often seen as a separate issue from the “(8) No court shall make a section 8 order for a child to child’s safety and well-being, rather than the two being spend unsupervised time with or have unsupervised intrinsically linked. Research published in 2017 by contact with a parent who is— Cafcass, the Children and Family Court Advisory and (a) awaiting trial, or on bail for, a domestic abuse offence, Support Service, in partnership with Women’s Aid, or showed that more than two-thirds of the 216 child (b) involved in ongoing criminal proceedings for a contact cases in the sample involved allegations of domestic abuse offence. domestic abuse. Yet in 23% of these cases unsupervised (8A) In subsection (8)— contact was ordered at the first hearing. “unsupervised” means where a court approved third In July last year the Ministry of Justice published party is not present at all times during contact with the final report of its expert panel, Assessing Risk of the parent to ensure the physical safety and emotional Harm to Children and Parents in Private Law Children wellbeing of a child; Cases. The expert panel said: “domestic abuse offence” means an offence which the “Although some professionals supported the presumption of Crown Prosecution Service alleges to have involved parental involvement in section 1(2A) of the Children Act 1989, domestic abuse.”” the panel received sufficient evidence to conclude that in the 2211 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2212 cohort of cases described in submissions the presumption further reinforces the pro-contact culture and detracts from the court’s focus on the child’s individual welfare and safety”. Amendment 130A (to Amendment 130) Continuing, the report said: Moved by Baroness Jones of Moulsecoomb “The panel is clear, however, that the presumption should not 130A: After Clause 64, in subsection (4) after inserted text remain in its present form … We recommend that the presumption (8)(b) insert— of parental involvement be reviewed urgently in order to address “(c) pending a fact finding hearing or has been found its detrimental effects.” to have committed domestic abuse in a previous Such a review was not announced by the Government fact-finding hearing; or until five months later, in November 2020, and is not who has a criminal conviction for a domestic abuse due to report until the summer, as I understand it. offence.” There is then likely to be a further delay in implementing Member’s explanatory statement any outcomes arising from the review—probably a This new Clause seeks to change the presumption that parental lengthy delay if further legislation is required. involvement furthers the child’s welfare when there has been domestic abuse. It also prohibits unsupervised contact for a Amendment 130, pending the outcome of the review parent awaiting trial or on bail for domestic abuse offences, or but in line with the expert panel finding that the where there are ongoing criminal proceedings for domestic abuse. presumption should not remain in its present form, simply states that the presumption in the Children and Families Act that the welfare of the child is best served Baroness Jones of Moulsecoomb (GP): My Lords, by the involvement of both parents does not apply in some of the earlier amendments to the Bill have been cases where there are allegations, findings or admissions about removing stress from survivors, particularly when of domestic abuse to the child or other parent. The they are in court. I support Amendment 130 moved welfare principle would then be applied by the court to by the noble Lord, Lord Rosser, and my amendment is ensure that any orders made, whatever they might a friendly amendment. Our amendments are about prove to be, are in the child’s best interests and not removing stress from children, which I think noble influenced by a presumption that the welfare of the Lords will agree is a very noble cause. As other noble child is best served by the involvement of both parents. Lords have found, we have been contacted by an That would help protect children caught up in family incredible number of people and organisations, who court proceedings from harm. have explained that this is a problem and it needs fixing. The presumption of contact in certain family The amendment does not prevent a court coming law cases involving domestic abuse needs to be rethought. to the conclusion, in cases where there has been or Obviously, it is incredibly important in many family appears to have been domestic abuse, that involvement situations to help children maintain contact with both with both parents nevertheless still best serves the parents, but in circumstances of domestic abuse this welfare of the child in the specific instance of the case can be precisely the opposite of what needs to happen they are hearing. But the court would not have to start and can result in disaster. off with a statutory presumption that that that would be the case. The whole point of family courts is that they are supposed to be about the welfare of the child, but it Amendment 130 is very much rooted in the welfare seems that too often a court maintains contact in of the child and simply seeks to ensure that, in cases situations that are obviously very harmful to children. involving domestic abuse, the assessment of the child’s The courts apply this presumption of contact too welfare and what is in their best interests is the most rigidly. Rather than acting as a presumption which can fundamental and crucial consideration. This amendment be rebutted, it has become more of an overriding has the support of the Victims’ Commissioner. The obsession. It has been described as creating a “culture Victims’ Commissioner told the Commons committee of contact” which pervades the entire family court considering this Bill that one of her major concerns system and then excludes other aspects of a child’s was that the Bill does not welfare, including listening to the child’s wishes and “Create a presumption of no contact or parental responsibility protecting them from abuse. where there has been a conviction, restraining order, findings by This culture of contact has led to serious tragedies. the Family Court.” As the noble Lord, Lord Rosser,mentioned the Women’s She also said that she was Aid report Nineteen Child Homicides documents “very troubled by the presumption of shared parenting that 19 children in 12 families who were killed at the hands seems to trump practically everything else in the family court.”— of abusive fathers during unsupervised contact between [Official Report, Commons, Domestic Abuse Bill Committee, the years 2005 and 2015. One example of a tragedy 4/6/20; col. 63.] was Darren Sykes, who murdered his two children and The Victims’ Commissioner has also written to the took his own life by setting fire to his attic. Despite a Home Secretary, saying that she saw the need to prohibit consistent history of domestic abuse, and against the unsupervised contact between a parent on bail for wishes of the two little boys, the pro-contact culture of domestic abuse-related offences for which criminal the family courts led to Sykes being granted unsupervised proceedings are ongoing. The designate domestic abuse contact with the children for five hours each week. commissioner also supports this amendment as one This culminated in him taking the boys up to the attic, she considers essential to ensure robust and inclusive barricading the three of them in, and setting multiple support for survivors of domestic abuse. The question fires. Mortally wounded, one of the boy’s last words now is whether the Government will support this were spoken to a firefighter. He said, “My dad did amendment. I beg to move Amendment 130. this, and he did it on purpose.” 2213 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2214

[BARONESS JONES OF MOULSECOOMB] I know an appalling example of this. Years after a Each one of these deaths is a preventable tragedy. divorce between an American dad and a British mum, Your Lordships have a duty, through the Bill, to the mother is required to pay to fly to the US five or prevent each one of them happening again to another six times a year to take her child to the father for child. My amendment to Amendment 130 has a straight- contact. Because she cannot trust the father to allow forward purpose: to ensure that unsupervised contact the child to come back, the mother keeps the passport. is not granted where the court has found that domestic This means that, after the week’s contact, she has to abuse has taken place, or where there is a relevant fly to the US and pick up the child. Even Covid was criminal conviction. It should be put beyond doubt not accepted as a reason not to go, and the mother that a parent cannot have unsupervised contact when caught it on the plane back to the UK over Christmas. they have been proven to be a domestic abuser. This is The child does not want to go to see her father but is a simple proposition: too many children are murdered being used as a pawn. by parents who are known—and who have been shown I accept that anecdotal evidence is of limited value; —to be abusive. We must protect these children and I am a great believer in research. However, I ask that, say, “Never again”. before Report, the presumption of parental contact be considered in the context of controlling or coercive Baroness Gardner of Parkes (Con) [V]: My Lords, I behaviour and the results of relevant research on the am very supportive of the Bill. The mental and physical issue. damage of domestic abuse goes far beyond the pain and anguish caused at the time it occurs and stays with The first part of the amendment assumes that the victims and their families for many years, if not for the presumption of parental contact should not apply in rest of their lives. It is important that we do all we can relation to a parent where domestic abuse has affected in this legislation to help victims to get out of abusive the child or other parent. I support the implication relationships and rebuild their lives. that parental contact should be very carefully assessed in these circumstances, but the wording of the amendment I will speak on Amendments 130 and 130A and could be nuanced before Report. I fully accept that it propose to add parental alienation to the definition of should not be presumed that parental contact would abusive behaviour and, therefore, every provision of apply in these circumstances. the Bill. I fear that the amendments may undo much of the work which the Bill seeks to do to protect In my experience, even when domestic abuse against victims of domestic abuse and swing the pendulum of children as well as a partner has occurred, this should control back to the perpetrator of that abuse, rather not necessarily rule out parental contact. This depends than the victim, if they make counter-allegations. on the nature of the abuse, the ages and level of Without meaning to sound flippant I say that, at understanding of the children, the presence or absence the extreme, any parent going through a break-up or of controlling behaviour—a key factor in the situation— divorce could find themselves accused of domestic and an overall assessment of the potential harms and abuse under this Act. That is not what the Bill is intended benefits involved. I also broadly support the amendment for. I wonder if the concerns of noble Lords on these in the name of the noble Baroness, Lady Jones, but amendments are already covered by the combination I would qualify it on Report. of Clause 1(3)(e) and (5). Alternatively, if they had a While again recognising the limited value of individual specific instance in mind, they should look at where cases, I will illustrate with a personal experience my that can be catered for in specific clauses, not by a point that very serious domestic abuse and continued wholesale change to the entire Act in this way. parental contact may be compatible and, indeed, helpful. The noble Lord, Lord Marks, has made it clear that The case I will cite involves abuse of children by a direct cross-examination can cause great distress. It is mother. As with abuse by a father, abuse by a mother important to help all people in vulnerable situations. I can be extraordinarily damaging, and it can take the can see these amendments having massive unintended authorities a very long time to recognise it. consequences if they are included. I urge the House A male member of my family and his children not to accept either of these changes, so as to maintain suffered what can be described only as severe trauma the integrity of the Act. over several years. It took Cafcass and the judicial system two and a half years to recognise that the Baroness Meacher (CB) [V]: My Lords, I will speak person who was lying about her abuse of her children, principally to Amendment 130 in the name of the and making up allegations, was in fact the mother. noble Lord, Lord Rosser. Parental contact is, of course, The authorities assumed at that time that mothers did enormously important. Continued contact can be very not abuse their children. The very little eight year-old dangerous both mentally and physically, but it can be girl climbed up on a chair and unbolted the front beneficial. To make the right decision for each family door—she was always locked into her mother’s house— is of the utmost importance, and sometimes people ran to the bus stop, managed to get on the right bus get it wrong. However, my support for the amendment and get off at the right stop, and ran one mile through is nuanced. I support proposed new subsection (4) but Tottenham to her dad’s house. Only then did the I add that a parent of either sex who has been found to matter go back to court and the judge recognised that exercise controlling or coercive behaviour should probably he and everyone else involved had made an appalling not have continued contact with the children. Such mistake. Having required the children to live with their contact is likely to be used to continue controlling the mother for two and a half years, the lead social worker partner. The child becomes a pawn in the fight with in the case finally made it clear that the children the partner. should only visit her but certainly not live with her. 2215 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2216

The children have lived with their father ever since, I do not suggest for a moment that all contact is but all have suffered from various levels of PTSD. safe. As many have said, cases of abuse and very They have had years of therapy, paid for the father, serious abuse can arise during and around occasions not by the state. Despite the abuse of the children and on which contact takes place, as it can on other the damage to them, this father has encouraged contact occasions. But I disagree with the noble Baroness, with the mother. Once the children were safely placed Lady Jones of Moulsecoomb, which I rarely do on with their father, he felt it was important for them to these issues, that the presumption is treated by the accept that their mum could not provide parenting but courts as overriding. I agree with the point made by that she was, nevertheless, herself a victim. Her behaviour the noble Baroness,Lady Meacher,that different solutions very much reflected her own experiences as a child. may be right for different families. The question for The children know that they cannot expect normal the House is where that leaves us. My concern is that parenting, but they understand her mental state and there will be cases where this amendment runs the risk therefore see her as a person with her own problems. of putting the interests of children behind the interests In my view, they have benefited very much from the of parents. fact that they are not left with only the horrendous However, the removal of the presumption in this memories of their abuse as small children. subsection is not the only reason I am concerned about My personal experience, while only anecdotal, explains this amendment and the amendment to it. Subsection (4) why I feel so strongly about the issue of parental contact. of the proposed new clause would forbid the court It is very complex yet hugely important. In conclusion, from making any order for unsupervised access with a I support both these amendments but would like to see parent who is them adjusted before Report. “awaiting trial, or on bail for, a domestic abuse offence, or … involved in ongoing criminal proceedings for a domestic abuse offence.” Lord Marks of Henley-on-Thames (LD) [V]: My Lords, throughout the preparation for proceedings on That prohibition would be absolute, and I think it this Bill, I have been extremely impressed, and greatly would be wrong. It would forbid a child from having assisted, by the work of Women’s Aid, the Victims’ unsupervised contact with a parent which may, in Commissioner for London, the Victims’ Commissioner particular circumstances, work against the best interests and many others who have worked tirelessly, with the of the child, contravening the paramountcy principle I grain of this Bill, to improve the response of us all, mentioned. It should be for the judges to determine and the courts, to the scourge that is domestic abuse. what the circumstances in each case demand. The noble However, with this amendment and the amendment to Baroness, Lady Meacher,pointed out that circumstances it, which many of them support, I have a number of differ and the extent to which they do. concerns. Furthermore, the amendment is not limited to cases The amendment, as we have heard, seeks to disapply involving domestic abuse against a parent of the child the presumption in Section 1(2A) of the Children concerned. Section 9(8) of the Children Act referred Act 1989. I turn for a moment to two provisions of to in subsection (4) of the proposed new clause is that widely admired legislation. As is well known, concerned with allegations of “a domestic abuse offence.” Section 1 provides: The subsection would prohibit, for example, a court making an order for unsupervised contact between a … “When a court determines any question with respect to the father and his older child because the father had been upbringing of a child … the child’s welfare shall be the court’s paramount consideration.” accused of a domestic abuse offence committed against a new partner who was not the child’smother,irrespective That overriding requirement lies at the heart of the of any relationship between the new partner and the Act, and judges and lawyers have long regarded it as child. Such a prohibition would be grossly unjust, the central canon of our law relating to children. The depriving the child of his or her relationship with presumption under Section 1(2A) requires courts hearing the father. It would again run entirely counter to the proceedings, which include making orders about where paramountcy principle. children are to live and orders for contact between a child and their parents, to presume that What is more, this amendment only requires, before unsupervised contact is prohibited, that allegations “unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.” have been made. They need not have been established; they might be wrong or malicious. The noble Baroness, That presumption reflects a wealth of evidence not Lady Meacher, mentioned a case where they were mentioned so far in this debate, but it is generally in a indeed wrong. The noble Baroness, Lady Gardner of child’s interest to have a relationship with each of their Parkes, mentioned a case where allegations might be parents. However, that presumption is rebuttable, hence malicious. This provision runs the risk of inviting the words unwarranted allegations of abuse calculated to destroy “unless the contrary is shown.” a child’s relationship with a parent against whom It is often the case that judges will make a decision, nothing has been found, on the basis of allegations which generally they do not like to make but do, that that may be irrelevant to the welfare of the child. A given a history of domestic abuse by one parent of the family judge would determine whether such allegations other and the effect upon the child, contact with one of abuse were made out and would do so on the basis parent will be withheld. The noble Lord, Lord Rosser, of evidence adduced before the court, not on the confirmed that the statutory guidance for judges ensures basis of unproved allegations. This amendment involves, that they carefully consider whether contact is justified to that extent, a denial of justice and a denial of justice or should be withheld. to children. 2217 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2218

[LORD MARKS OF HENLEY-ON-THAMES] come to. I read the briefings, considered the issue and I firmly believe that judicial discretion should not be listened to my noble friend Lord Rosser; I was then withdrawn in this sensitive area of family life. There surprised when listening to the noble Baroness, Lady are many cases where abusive behaviour by one parent Gardner. As the debate went on, I started to have second towards another entirely justifies the withdrawal of thoughts. This is the benefit of Committee—that is contact between the abusive parent and the child. But what it is for. The idea can be taken away and reworked. there are other cases,as the noble Baroness,Lady Meacher, I will raise one point from one of the briefings, from recognised, where withdrawing contact is inimical to Support Not Separation and Women Against Rape, the welfare of the child. which quoted the harm review. They said they found a Improving the way in which family courts understand pattern of bias in the court professionals which gave and respond to domestic abuse of all sorts is of the weight to the views of the child who wanted contact greatest importance,but this amendment is too prescriptive but dismissed the views of the child who did not. That in its statement and its outcome. Removing the power is extremely worrying. of judges to act in the best interests of the child, on However, having come to the same conclusion as the whose behalf they daily make very difficult decisions, noble Lord, Lord Randall, I will leave it there. is not the way to achieve the aims of this Bill.

Lord Randall of Uxbridge (Con) [V]: My Lords, at Baroness Butler-Sloss (CB) [V]: My Lords, I view the outset, I was attracted to these amendments. As a this amendment, which is in two parts, with some concern. lay person, listening to the noble Lord, Lord Rosser, To a very large extent, I share the views of the noble with his usual measured way of introducing amendments, Lord, Lord Marks of Henley-on-Thames, and those and the noble Baroness, Lady Jones of Moulsecoomb, of the noble Lord, Lord Randall of Uxbridge. I found the arguments compelling. But as I listened, I When I was President of the Family Division—and thought that although there is sometimes merit in throughout the 35 years I was a family judge—I heard having us lay people who have no knowledge of the a great many cases which had some element of domestic law involved—as was mentioned in the previous group— abuse. I do not like presumptions, if they can be avoided. the arguments showed why it is so important to have I remember that, when the amended Section 1(2A) people who have experience with what the laws we are was introduced while I was a Member of this House, making would mean in practice in the courts. Having I was very dubious about it, because I do not like heard the arguments of the noble Lord, Lord Marks, presumptions. The important point of the Children in particular, and the noble Baronesses, Lady Meacher Act is Section 1, which says that and Lady Gardner of Parkes, and believing that the “the child’s welfare shall be the court’s paramount consideration.” intentions behind these amendments are worthy,because Any family judge or magistrate has to look at all the it seems self-evident that this must be done, I am not circumstances and decide whether it is appropriate, in convinced that this way of dealing with the issue will those circumstances,for both parents to have a relationship be beneficial for the people we want to protect—the with the child after their separation. In normal children. circumstances, one takes it for granted that both parents Of course, those chilling statistics of where children will have a relationship, but there will be cases in have been killed by an abusive parent, after this has which there should not be one. been discovered, are very concerning, but I am not I am not quite so concerned about the first part of necessarily sure that passing any of these amendments Amendment 130, because it says that subsection (2A) would completely rule it out. I think we all agree, those shall not apply in situations which have affected the of us lucky enough to have happy families and know child. Even so, it should be a matter where the welfare other happy families, what the harm would be for of the child is paramount and the judge exercises his those who need it and that parental involvement is or her discretion, having come to a conclusion based paramount. on all the facts. I am particularly opposed to the second part of 4.30 pm Amendment 130: the restrictions on Section 9. This is, Whereas I was very happy to support it—I will be first, because it does not require domestic abuse to interested to hear other speakers, notably the noble have affected the child. Other points have been made and learned Baroness, Lady Butler-Sloss, who I know on this by the noble Lord, Lord Marks, with which I has extensive experience, and my noble friend the entirely agree, but I can see circumstances where a Minister—perhaps we can look at nuance, as the noble child was for one reason or another—possibly at boarding Baroness, Lady Meacher, said; some way of amending school or away on holiday—not present when there or making sure that, in the instructions to the courts, was domestic abuse between the parents, and the child the presumption that they can disapply is recognised a had no knowledge of it. In those circumstances, it would bit more formally. not be inappropriate for the child to have unsupervised contact with a parent who had done absolutely nothing Lord Rooker (Lab) [V]: My Lords, my quick message wrong to the child but who may have been involved in to Hansard is that they can tear up the note I sent a single or unusual circumstance which could be classified earlier.In fact, the noble Lord, Lord Randall of Uxbridge, as domestic abuse of the other parent. has just made the speech I decided to make having This draconian proposal that Section 9 be restricted listened to the debate. I do not propose to repeat what is inappropriate, although I entirely understand and he said, save for the fact that the general thrust of his share the concerns about the parents—mothers as well conclusion as a lay person is the same one I have as fathers—who have been given unsupervised contact 2219 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2220 where there are issues of domestic abuse which are Do we not have a principle of ensuring that someone true, where the children are then killed. That is extremely is proven guilty before being deprived of such important sad; there should be adequate training of all judges rights? Amendment 130 would require that, even where and/or magistrates trying family cases. It may be more there are allegations of domestic abuse, whether it is important to get the Ministry of Justice to discuss against the child or a parent, the deprivation of access with the Judicial College and the President of the to children would still hold. That clearly invites the Family Division whether the training of judges and risk of unfounded allegations being made by one magistrates in issues of domestic abuse, to which I parent who wishes to prevent their ex-partner seeing shall refer on the next group, should be improved. the children, potentially as a way in which to punish I will later refer to a useful case in the Court of Appeal the other parent or for other reasons. That could lead which has been discussing this. to the other parent being accused, for example, of I am completely opposed to the second part of emotional or psychological abuse, for which there may Amendment 130. I am sympathetic to what lies behind be no visible signs and which, indeed, may subsequently it, but I believe there should be a broader consideration be disproved. However, the amendment would mean of whether, where the welfare of the children must be that the courts would deny access to the person who is paramount, there should be any presumptions of any accused before any judicial opportunity to find that sort—but certainly not in the way this has been drafted. parent innocent. I echo the words of my noble friend Lady Gardner of Parkes, who mentioned parental alienation, which The Deputy Chairman of Committees (Lord Faulkner we discussed in an earlier group, and those of the of Worcester) (Lab): In place of the noble Baroness, noble Baroness, Lady Meacher, and others: these cases Lady Andrews, I call the noble Baroness, Lady Altmann. can be hugely complex. We have to trust the courts to apply the expertise necessary in such cases, which are Baroness Altmann (Con) [V]: My Lords, I once again the vast majority. The presumption of contact seems congratulate the Government on bringing forward to have so much weight of evidence behind it that it this important Bill and on the constructive and helpful would be extremely unwise and damaging to many manner in which my noble friends the Ministers have children if the amendment, and Amendment 130A, all engaged with so many noble Lords to try to ensure were accepted. that this legislation achieves its aim of protecting We do not want the Bill to damage children in a victims of domestic abuse. misguided attempt to help them. It does not seem to I am speaking to Amendments 130 and 130A because fit with natural justice to impose automatic sanctions I share the concerns expressed by other noble Lords without the normal judicial oversight or a conviction that they may unintentionally undermine the aims of to substantiate claims. I recognise the intention of the Bill. I recognise the rationale and thinking behind these amendments and I share the desire to prevent them and the desire to protect children, who can be any children being severely harmed or even unwittingly innocent victims in these awful cases, but I agree with put into the hands of an abuser who may kill them. the noble Baroness, Lady Meacher, and so many others However, I hope that Amendments 130 and 130A will that contact with both parents is normally in the not form part of the Bill because the alternative, long-term interests of children. That is why I supported whereby children are denied access to their parent, amendments at an earlier stage to ensure that parental and the other parent is denied access to their children, alienation is taken seriously, rather than being left to on the basis of unsubstantiated and potentially false statutory guidance or, as these amendments might claims, could lead to substantial harm and, indeed, the suggest, removed from the guidance as well. suicide of a parent or children, who often suffer terribly if they are unable to have contact with a parent. The current legal position reflects huge amounts of evidence that children benefit from contact with both 4.45 pm parents and that significant psychological damage can be caused by loss of such contact. I therefore have Baroness Burt of Solihull (LD): My Lords, there has serious concerns that removing the presumption of been a varied response to the Bill. What has come out contact could cause more harm to more children than of it is that nothing is as simple as it might appear in this amendment is designed to prevent. Of course, situations of the kind described. The somewhat harrowing there will be dreadful cases in which an abusive parent example given by the noble Baroness, Lady Meacher, will perpetrate harm on the children, but that is extremely underlines that. rare.As the noble and learned Baroness,Lady Butler-Sloss, As we have heard, Amendments 130 and 130A seek the noble Lord, Lord Marks, the noble Baroness, to change the presumption that it is in the welfare of a Lady Meacher, the noble Lord, Lord Rosser, and child to have unsupervised contact when one parent others have explained, the family courts already have has either a domestic abuse conviction or court the power, under the Children Act 1989, to decide proceedings against them. The noble and learned Baroness, against contact in individual cases where it is judged Lady Butler-Sloss, told us that she does not like to be appropriate for that case. The Act presumes only presumptions and that we need to consider all the that contact with both parents will be in the child’s circumstances—that has certainly come out of this interests unless the contrary is shown. Should the afternoon’s debate. contrary indeed be shown, rather than merely alleged, As we know, the presumption of the courts is that it and should abuse be proven, then those are clearly the is in the welfare of the child for both parents to have exceptional cases in which a court would hardly be access now, everything else being equal. However, likely to grant access. when one parent is accused of abusing or has abused 2221 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2222

[BARONESS BURT OF SOLIHULL] Before proceeding, I hope the Committee will forgive the other parent or the child, or they are subject to a me if I make two overarching points. First—and I say Crown prosecution case, everything is most decidedly this respectfully, given my short time in this House—the not equal. We have discussed enough times during the debate we have just had shows the value and importance course of the Bill just how difficult and stressful a of Committee stage. A number of contributors have domestic abuse situation can be for a child, who can listened to and considered the points that have been be used and abused as a pawn between warring partners. made and, on occasion, have changed their position. And it can get far, far worse than that. There is nothing wrong with that. If I have one regret— Several noble Lords used statistics to back up this and again I say this respectfully—it is that our PR means argument. Mine come from the charity Refuge, which, that the value of these Committees is not as well in partnership with a Sunday Mirror journalist, conducted understood outside this House as it is within it. an investigation which found that, between 2004 and Secondly, in the last debate, the noble Lord, Lord 2019, 63 children were killed at the hands of a domestic Marks of Henley-on-Thames, made the point that abuse perpetrator who had contact with their children what seems an arcane legal matter to lawyers—and after being convicted of a serious criminal offence. perhaps to others in this Chamber—is improved by Refuge reports that the actual figures of child harm real-world experience and examples. In this debate, are even higher, with many children dying from other contributions from the noble Baroness, Lady Jones of causes, such as neglect. This is the danger of under- Moulsecoomb, and the noble Baroness, Lady Meacher, estimating the risk that perpetrators can pose to their have done just that. I agree with the noble Baroness, children. It does not apply to all perpetrators, of Lady Meacher, that anecdote is not evidence and that course; many who have committed domestic abuse we must have research. I will come to this issue later in against their partners are different altogether with the my remarks. Hearing the case of an eight year-old girl children—a point another noble Lord made. unlocking the front door to catch a bus to get to her We should also consider how previous matters are father’s house is a powerful example. The image of a taken into consideration. In particular, my colleague child saying his last words to a fireman in a smoke-filled and noble friend Lord Marks gave an example of a attic will stay with me, and rightly so. It reminds me previous situation in which domestic abuse took place, that, although we are debating words on paper, they perhaps in a previous life. But domestic abuse still have consequences in the real world. I am sure that figures in that situation, so if an alleged perpetrator many, if not all, noble Lords will feel the same. has a previous domestic abuse conviction, it would be better to be safe than sorry. I have a great deal of sympathy for the aims of these amendments, and I agree that more needs to be The noble Baroness, Lady Jones of Moulsecoomb, done to ensure that the courts take proper account of moved Amendment 130A, as an amendment to the impact that domestic abuse can have on children’s Amendment 130, which takes matters a little further well-being and safety. To that extent, I agree with the to include fact-finding hearings in the family courts, noble Baroness, Lady Jones of Moulsecoomb, that we which most commonly concern domestic abuse. In should seek to remove stress from children, in so far as such hearings, it is for the person making the allegations we can. That was why, late last year, following the to prove that they are true. The judge considers on the recommendations from the Expert Panel on Harm in balance of probabilities whether the allegations are the Family Courts, the Government launched a review true or not. The presumption in Amendment 130 is on the presumption of parental involvement. Importantly, therefore extended while the hearings take place. I think the panel did not call for immediate legislative change. it is better that, where there is a previous conviction, Instead, it recommended a full review. They were right even with another partner in a different situation, it is to do so. As the noble Lord, Lord Rosser, said and as still far better to be safe than sorry. noble Lords will be aware, this review is under way. As I hope that the Minister will be minded to consider the noble Baroness, Lady Meacher, said, it will give us these amendments carefully and, if necessary, make important data, research and a considered analysis. changes to make them a little better on Report. The review will focus on the presumption—and its Lord Wolfson of Tredegar (Con): My Lords, as the exception—and the impact on children’s welfare of noble Lord, Lord Rosser,has explained, Amendment 130, the courts’ application of these provisions. It will formerly in the name of the noble Lord, Lord Ponsonby allow us to build a stronger evidence base and ensure of Shulbrede, seeks to make it clear that the presumption that any changes brought about as a result are rooted that parental involvement furthers the child’s welfare in a solid understanding of the effect of the presumption cannot apply where there is evidence of domestic abuse. and the associated evidence on child welfare. It would It also seeks to prohibit unsupervised contact for a therefore be premature to amend the legislation relating parent awaiting trial or on bail for domestic abuse to the presumption, including Section 9 of the Children offences or where there are ongoing criminal proceedings Act—as proposed in the amendment—before gaining for domestic abuse. the in-depth evidence from the review. Amendment 130A in the name of the noble Baroness, It is worth highlighting that the current legislation Lady Jones of Moulsecoomb, extends this. It seeks to on the presumption makes it clear that it should be prohibit unsupervised contact for a parent pending a disapplied where there is risk of harm to the child. fact-finding hearing in family proceedings or where This means that the risk of harm from a parent domestic abuse is alleged or is proven—either in such perpetrator of domestic abuse should already be taken a fact-finding hearing or as the result of a criminal into account by the courts. As the noble Lord, Lord conviction for a domestic abuse offence. Marks of Henley-on-Thames, reminded us, Section 1 2223 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2224 of the Children Act 1989 makes the child’s welfare well. I therefore suggest to the Committee that the paramount. It should also ensure that courts consider approach in the current legislation, which was identified the risk of a child suffering harm, or further harm, and explained by the noble and learned Baroness, when deciding on any aspect of the child’s upbringing. Lady Butler-Sloss, with, if I may respectfully say so, Some noble Lords asked how contact between a her customary clarity, is the correct one. child and a parent who has committed domestic abuse, or against whom it has been alleged, could ever be in 5 pm the best interests of the child. The short answer is that Forgive me, I am just looking at my notes to make this is not an easy question, but it is for the courts to sure that I have acknowledged all the contributions decide in each case, taking into account all the evidence that were made. I think that I have; I apologise if I presented to them. The noble and learned Baroness, have inadvertently omitted anybody. I hope that I have Lady Butler-Sloss, has vast experience in this area. She replied to all noble Lords who contributed. gave us an example of such a possible case. She also This has been, as I said at the start, a most important made an important point about judicial training, which and valuable debate. The Government’s contention is we shall come to in a later group. that we should wait for the outcome of the review of In addition to my general point that this issue is the presumption of parental involvement before any catered for in the current statutory architecture, there decisions are taken in relation to whether changes are are two further problems to which the amendments required to that presumption or its application. Given would lead. First, domestic abuse is only one of many this and the other points I have made in reply, I hope circumstances which may impact on a child’s well-being that the noble Lord, Lord Rosser, will be content to and safety.By expressly referring to it, these amendments withdraw his amendment if the noble Baroness, Lady could be seen to give domestic abuse prominence over Jones of Moulsecoomb, does so with hers. other valid considerations which the court should take into account in deciding whether such an order would be in the best interests of the child—for example, other Baroness Jones of Moulsecoomb (GP): My Lords, I sexual or violent offending, or a history of or allegations thank all noble Lords who contributed to this extremely of child abuse. I say this without downplaying in any valuable debate. In particular, I thank the Minister for way the importance and effect of domestic abuse. his sympathy for our point of view. As he says, there are real consequences in rejecting these amendments. I Secondly, as a number of contributors have said, note the heavyweight opposition on several points but the second part of the amendment would lead to an I am not convinced. The fact is that we have a problem automatic ban. The court could not exercise discretion. and just rejecting these amendments will not solve it. I If we legislate to create automatic bans on a particular hope that there will be further working together on form of contact, there may be concerns that we are not this, and that noble Lords will forgive me if I do not allowing courts to take sufficient account of whether note all the responses, as it was fairly clear these there are risks to the child in the particular circumstances amendments will not be going forward. of the case. Risks and rights must be weighed carefully, allowing courts to assess each case on its merits. The I really want to thank the noble Baroness, Lady Burt noble Lord, Lord Marks, gave an example where, on of Solihull, for her very constructive comments. The the facts of the case, a court might want to permit contact. fact is that, as she said, we can underestimate the damage done by perpetrators. This is the problem. We Other noble Lords, who are not lawyers, have also have not fixed the problem of children’s deaths through contributed to this debate. My noble friend Lord abusive parents. Going forward, I want to find out Randall of Uxbridge summarised it very well—so how we can solve that problem. Let us please remember much so that he led the noble Lord, Lord Rooker, to that deaths are a figure we can point to but that tear up his speech. This must be a rare, if not unique, mental, physical and emotional abuse are much harder occurrence. The noble Baroness, Lady Meacher, said it to quantify. This must happen. If we have 20, 24 or was “likely”that the court would reach such a conclusion. 60 deaths, whatever, then a multiplicity of other abuses This is the point I am making: it may be likely, but we will have happened. We must take that into account in should not force the court to do so. We should not rejecting these amendments. I said at the beginning of remove the court’s discretion. Ultimately, the court the debate that there is always a presumption of parental should make the decision, based on all the facts of the involvement—that it is better to have two parents case. Furthermore, it is not clear from the terms of involved—but the way that things stand at the moment the amendment whether such bans, if they prevent is too strong, so this must be rethought. unsupervised contact following a conviction or finding of fact, would or should be capable of being lifted or I beg leave to withdraw my amendment and presume modified if the risks in an individual case materially that the amendment of the noble Lord, Lord Rosser, change. I respectfully agree with my noble friend Lady will also be withdrawn. I feel that he was absolutely Gardner of Parkes when she said that she was not right to table his amendment, because it has enabled persuaded that the amendment was necessary, and that a debate. Hopefully, we will move forward and find a it might have unintended consequences. solution. I also agree with the point made by the noble Baroness, Lady Burt of Solihull: that nothing is as Amendment 130A (to Amendment 130) withdrawn. simple as it first appears in this area of the law. There are risks on all sides in this area, so to speak. There are Lord Rosser (Lab) [V]: I am not quite sure what risks of contact and, as my noble friend Lady Altmann right of reply I have, since my name is not shown on reminded us, there are risks in preventing contact as the speakers’ list as being able to speak at the end of 2225 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2226

[LORD ROSSER] the other amendments in this grouping in the capable this debate. I do not want to test the patience of the hands of the noble Lord, Lord Rosser, and the noble House, so I had probably better keep my comments Baroness, Lady Helic. However, I support them. brief. Amendment 131 seeks to provide a legal safety net It was the expert panel set up by the Ministry of for the secrecy of refuge addresses. The refuge model Justice which came to the conclusion that the presumption is predicated on the secrecy and protection of safe in favour of contact addresses.The responsibility for protecting these addresses “further reinforces the pro-contact culture and detracts from the falls not only on staff but on each and every resident court’s focus on the child’s individual welfare and safety.” at a refuge. Licences are assigned upon entry, with the I would add that my amendment does not prevent a penalty that a resident must leave if they reveal the court coming to the conclusion that, nevertheless, where address to anybody. Despite these safeguards, refuges there is domestic abuse, there should still be involvement can find themselves the subject of orders from the with both parents. It is just that it would not start off family court—particularly location orders from fathers with a presumption that it should be the case. trying to locate mothers and children. Refuge providers I will leave my comments there. I thank the Minister are forced to disclose their addresses to facilitate the for his full response, and thank all noble Lords who service of court orders on mothers. Although some took part in the debate. Bearing in mind that I am not protections are in place, it is clear that there are some actually shown as having a right to speak at the end, I loopholes. had better conclude my comments by begging leave to I do not want to overstate how often this happens withdraw my amendment. but it is certainly true that, in nearly all such cases, information is kept confidential. However, last year, I The Deputy Chairman of Committees (Baroness Morris was made aware of two cases where this information of Bolton) (Con): The noble Lord was entitled to speak. was released by the court, with concerning and dangerous He was just left off the list inadvertently. consequences. In one case, the police visited the refuge and searched the mother’s belongings for passports, Amendment 130 withdrawn. which did not exist, on the basis of false information from her abusive partner. This visit was deeply distressing for an already traumatised mother and child, as it was The Deputy Chairman of Committees (Baroness Morris for other residents of the refuge who felt that their of Bolton) (Con): My Lords, we now come to the safety had been entirely jeopardised. In the second group beginning with Amendment 131. I remind noble case, the father used the information to locate and Lords that anyone wishing to speak after the Minister stalk his victim and, ultimately, abduct his child and should email the clerk during the debate, and that take them abroad. Having worked on the introduction anyone wishing to press this or anything else in this group of stalking protection orders, I am aware how prevalent to a Division must make that clear in debate. stalking is in domestic abuse cases and how quickly it can escalate once the victim flees. Amendment 131 The principle behind my amendment is a very simple one: that court orders should never be served at the Moved by Baroness Bertin refuge itself and that the refuge address should remain 131: After Clause 64, insert the following new Clause— confidential. It provides that the orders be served “Confidentiality of refuge addresses “at the refuge’s office address or by an alternative method or at an (1) In family proceedings, where a person (“P”) is— alternative place, in accordance with Part 6 of the Family Procedure (a) witness or party to the proceedings; and Rules 2010.” (b) has been subject to domestic abuse as defined under As such, the amendment would not make a significant section 1 of this Act; and change to the existing protections. It would simply (c) is residing at a refuge; strengthen and clarify the cases in which they should the provisions in this section apply. be used. When similar issues were raised in Committee (2) The court must not share the residential address of the in the other place, the Minister stated that the Family refuge with any individual or third party. Procedure Rules already provide for alternate routes (3) A court order must not be served on P at the residential to service and that, in domestic abuse cases, the address of the refuge. information would be kept confidential by the court, (4) A court order may be served on P at the refuge’s office meaning that the measures in this amendment were address or by an alternative method or at an alternative already provided for. place, in accordance with Part 6 of the Family Procedure The other issue raised by Ministers was around the Rules 2010. urgency of cases where a child’s safety is at risk. There (5) The residential address of the refuge must be redacted was some concern that an alternative route to service, from any court documentation.” such as using the office address of a refuge, would Member’s explanatory statement present a delay in proceedings and could have the This would prevent the residential address of a refuge being unintended consequence of endangering the child. I shared as part of court proceedings. respectfully disagree and contend that the current situation, where refuges are pressured into revealing Baroness Bertin (Con): My Lords, in moving their most fiercely guarded information, causes more Amendment 131 in my name, to which the noble delay. In the two cases that I have outlined, the refuge Lord, Lord Ponsonby, has added his name, I will leave provider was resistant to revealing the address and 2227 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2228 took additional time to seek legal advice and to consider 5.15 pm all the options, including genuinely considering not The sharing of information is also paramount to a complying with a court order, which in no way is to be court’s ability to recognise vexatious claims where a encouraged. perpetrator attempts to use the proceedings to continue By formalising the refuge office address as the their abuse by repeatedly forcing a victim back to alternative route to service, providers will understand court. Amendment 132 would provide that, in those that they have a duty to locate the mother as soon as cases, the court must consider making a barring order possible and will not be faced with a serious conflict in under Section 91(14) of the Children Act 1989, which doing so. Unfortunately, the cases that I have outlined prevents a party from making further court applications demonstrate that the existing safeguards are not adequate. without the prior permission of the court. The expert-led We cannot say with confidence that refuge addresses harm review reported that the threshold for the use of will always be appropriately protected. I believe that these orders was too high and recommended that the the practice on the ground is not consistent with what exceptionality requirement for such an order should is intended by the Family Procedure Rules, which be reversed. therefore require strengthening and updating. The review also raised the issue that, where a barring In addition, alleged perpetrators do not state in order is given, it is often given for a short length of their application that domestic abuse is involved in time. Southall Black Sisters gave the review panel the their case and, as such, the court may not always have example of a service user who had faced 18 months of the full picture of each case. It may not be able to repeated contact applications. Her application for a assess the risk of sharing the refuge address and may Section 91(14) order took six months to decide and was not be aware that that information should absolutely granted for only 12 months, after which she expected not be shared—unusual though that maybe.In some cases, to be subject to further applications and would then the courts do not know about the victim’s allegations have to reapply for another order. until after the order has been served and the damage has Following the expert-led harm review, the Ministry been done. The existing provisions for the confidentiality of Justice said: of addresses in domestic abuse cases can therefore be easily circumvented. “Ministers will make it easier for judges to issue barring orders which prevent abusive ex-partners from repeatedly dragging This is a probing amendment that seeks to understand their victims back to court—which can be used as a form of the Government’s response to these occasional but continuing domestic abuse.” none the less unacceptable lapses in confidentiality. I The Government’s implementation plan states: beg to move. “We agree that further clarification is required to the law on barring orders … The Government will immediately explore Lord Rosser (Lab) (V): My Lords, the case for the whether this aim can best be achieved via an amendment to the protection of a refuge address has been made eloquently Domestic Abuse Bill, through other primary legislation, or through by the noble Baroness, Lady Bertin. Refuges are places non-legislative means.” of safety and the sharing of a refuge address is a clear We are some months into this Bill but have yet to hear, risk to both the survivors of abuse and the staff as far as I am aware, of the outcome of the Government’s operating the service. It simply should not happen. exploration. It would be helpful if the Minister could Amendment 132, in the name of my noble friend give the House an update on the Government’s plans Lord Ponsonby of Shulbrede and the noble Baroness, for barring orders. Lady Newlove, deals with the issue of the sharing of Amendment 133, in the name of the noble Baroness, information, or indeed the lack of it that currently Lady Helic, is a key amendment that raises the issue of occurs. We recognise that the drafting may not be training for the judiciary and other professionals to perfect, but the aim of the amendment is to put a duty ensure an increased understanding of domestic abuse. on courts of all jurisdictions to share information where The challenge facing the family courts is not insignificant. the same victim or complainant of abuse is involved in Domestic abuse is an immensely complex and nuanced multiple proceedings in which the other party is or is area. Indeed, the debates so far in our Chamber, such linked to the perpetrator of the abuse. as that on parental alienation, have demonstrated how The impact of silo working and the lack of information contentious, multifaceted and complex these issues sharing between agencies and the different parts of the can be. Training is a vital tool for expelling myths, justice system were highlighted in the Ministry of seeking culture change and promoting awareness. I look Justice harm review as a significant barrier to the forward to hearing from the noble Baroness when she effective tackling of abuse. In particular, the review speaks to her amendment. raised the fact that different approaches and a lack of Amendment 134 is a probing amendment. It would information sharing could lead different courts to require the court to consider the impact of trauma reach conflicting and contradictory decisions, including, from domestic abuse on the quality of evidence that a for example, risk assessments and indicators recognised victim may provide to the court. The Ministry of in the criminal courts not being similarly recognised Justice harm review panel reported on the need for the and responded to in the family court. This issue is family court to be “trauma aware” including being often raised and perhaps we all tend to nod our heads, yet we have seen little improvement. I look forward to “aware of the effects of trauma when a victim is attending and hearing from the Minister what the Government are giving evidence in court.” doing or intend to do to prevent silo working and to The panel noted that a victim’s experience of court is improve the sharing of necessary and relevant information “fundamentally affected by the trauma they have experienced as a in these cases. result of the domestic abuse.” 2229 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2230

[LORD ROSSER] often not communicated properly. In fact, it is never It discussed the ways in which trauma can impact known until many years later. This is particularly memory and emotional response and worrying when there are time limits on accessing rights, “significantly impair the victim’s ability to come across as a as is the case with appeals in the family courts, where credible and reliable witness.” you have 21 days unless the judge has specified otherwise. The requirement in this amendment would mirror the These issues are only deepened when you are without best practice that is already growing in other parts of legal representation. Following legal aid reforms in the justice system, including in immigration cases. The 2013, most private-law children cases now involve at guidance for cases in the immigration and asylum least one litigant in person. Research has shown how tribunal includes provisions for trauma awareness and the challenges of self-representation are particularly the CPS has recently consulted on new guidance that pronounced in cases involving domestic abuse, a fact looks at the impact of trauma on the brain, memory, reflected in the Ministry of Justice’s harm panel report. recall and testimony in rape and sexual offences cases. Indeed, I have heard from many survivors of domestic It would be helpful if the Minister could update the abuse who have represented themselves in court and House on what work is being undertaken in the family have felt that their abuse was dismissed or misunderstood court to build on the body of existing best practice in and that the fact-finding procedures, such as practice understanding the impact of trauma. direction 12J, were not followed. None of them was Amendment 135 would require a judge in family aware of their right to appeal. proceedings to lay out clearly the details of how the The Court of Appeal has recently heard evidence appeals process works when giving a ruling in a case from four linked cases and will consider the family involving a domestic abuse victim. It is a probing court’s approach to domestic abuse. During these amendment to speak to the issue of what many regard proceedings, the President of the Family Division, Sir as a lack of transparency in how court proceedings Andrew McFarlane, noted his surprise that systemic work and the lack of awareness of many victims about issues have been identified with how the courts handle their right to access an appeals process. Of course, the domestic abuse as so few cases are appealed. Many court does not make a decision intending for it to be factors will inform a decision to appeal, including appealed, but the process exists as a legitimate way to financial limitations and emotional strain. However, challenge a decision. The issue is simply about making from the survivors of domestic abuse whom I have sure that people are given the information that they need spoken to, it appears that one of the biggest factors is about their existing rights. This is currently exacerbated the lack of awareness that such an avenue is available by the number of litigants in person and the lack of to them. The President of the Family Division has been legal aid provision across the justice system. clear that the appeals process is the correct mechanism Amendment 136 also is a probing amendment. The for examining the courts’ approach to domestic abuse. details of cost for contact arrangements are at the This amendment would help that to become a reality discretion of the court which considers what is in the on the ground. best interests of the child in question. The amendment Amendment 132 would place a duty on courts to raises the issue of a victim of abuse being required to share information about proceedings involving the pay towards the costs of a child’s contact with a same victim. It is something that we know should perpetrator. It follows neatly on from previous debates happen, but unfortunately it often does not. Again, I on contact arrangements. The issue that has been raised point to the Ministry of Justice’s harm panel report with us is the impact that this can have on a victim of and the recurring issue of the family courts not adequately abuse.It can tie them into an ongoing financial relationship managing risk. The report specifically acknowledged with a perpetrator of abuse. I simply ask the Minister the courts’ failure to identify abuse through repeated whether there are any processes in place for the impact court applications. The criminal courts can often offer of domestic abuse to be considered when cost crucial information that would give family judges a arrangements are being settled. clearer picture of risk in a case—for example, where Finally, I take this opportunity to put on record my protective orders, such as restraining orders or non- thanks to the London victims’ commissioner and her molestation orders have been granted. The Suzy Lamplugh team. Their work has been important in getting some Trust recently estimated that 38% of its domestic of the issues to which I have referred heard. abuse and stalking casework clients who are in the family courts have some form of protective order—a restraining order, non-molestation order or stalking Baroness Newlove (Con) [V]: My Lords, I support protection order—against the perpetrator. Equipping measures to improve the safety of family court proceedings judges with this information would support them to for survivors of domestic abuse and their children better identify abusive dynamics and provide some so will use my time to speak to Amendments 132 and contextual evidence when suspected repeated and 135. vexatious applications are being made. Amendment 135 would offer victims of domestic The second half of the amendment is designed to abuse transparency about their right to appeal in the address these repeat applications. While barring orders family courts. It would not introduce a new right to technically exist to allow intervention on such behaviour, appeal; rather, it would make victims aware of the the reality is that they are rarely used. The Ministry existing rights that they can exercise. As someone who of Justice’s review heard evidence from a specialist has navigated the justice system, I can attest to how organisation which was not aware of any barring overwhelming and disempowering it can be. Basic orders being made in the child sexual abuse cases it information about the most fundamental rights is had supported, even when there had been a conviction 2231 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2232 and the abusive parent had made multiple applications said on the previous group, real-world experience, and for child arrangement orders or variations. In the who are prepared to explain what it has been like, and Government’simplementationplan,therewasacommitment sometimes continues to be like, to live that experience, to urgently review the use of barring orders and to and therefore what is best practice develops. That is in consider them for inclusion in this Bill, so I ask my the nature of society. It is also in the nature of society noble friend for an update on this commitment. that some things are deeply engrained, and we are all subject to unconscious biases. Baroness Hamwee (LD) [V]: My Lords, I feel slightly Until it was pointed out to me, I had not thought embarrassed to be coming in ahead of the noble Baroness, that, because family proceedings are not in public, LadyHelic,whohashernametooneof theseamendments. how the family courts approach domestic abuse is not I look forward to hearing what she has to say. much in the public eye, and therefore it must be harder I think—and I apologise if I have this wrong—that to research and analyse. The Ministry of Justice’s on Monday it was said from the Government Front harm report, which has been mentioned quite a lot Bench that refuge addresses were never disclosed. We this afternoon, identifies the overarching barriers to a need to allow for human error and human ingenuity. consistent and effective response by the family courts We have previously touched on how many victims to domestic abuse and other serious offences, including have moved away from their home area in order that the adversarial process and silo working. When I was their whereabouts will not be discovered but, as we thinking about these amendments, it occurred to me have also heard, abusers can be determined. So much that subsection (2) of Amendment 133 does not list of the issue is about power and control, so it is not counsel and other legal representatives as those who difficult to see that an abuser might do everything to might benefit. track down a victim. The noble Baroness, Lady Bertin, All those thoughts take me on to Amendment 134, referred to the prevalence of stalking. Knowing that a which is about trauma. The term “trauma-informed” victim has moved to a refuge must be a red rag to some has entered common currency,as has “retraumatisation”. bulls. The dangers are not only to the victim of that That does not always mean that the thoughts behind abuser but to other occupants of the refuge. I am aware those terms are applied. I am not a psychologist, but I of situations where others have been endangered, including sense that trauma is often—or maybe more fairly the children of the occupants, as well of course as the sometimes—confused with stress, and of course they children of the victim and of the abuser, themselves are related. But trauma has varied and long-lasting victims. What must a child think when they are uprooted effects—one cannot overstress that they are long- by Mummy, told that they are going somewhere where lasting—including psychological and cognitive effects, Daddy cannot get at them, and then Daddy appears? and they are very often not apparent to other people The noble Baroness, Lady Bertin, also referred to the and may not become apparent unless there is a careful, horror stories on which I have been briefed. quite lengthy, building up of a relationship. A victim can shut off his or her experience, or shut 5.30 pm down, and be quite unable to describe an experience We might say that the courts need to be sensitive. or even to recall it, or the description can be very Sometimes they need strong, clear rules, and it appears confused or omit the most salient points. I know of an that, although failures may not be that frequent, they occasion when a psychologist who had assisted the can be extremely serious. I am not sure whether an police in interviewing a victim in a criminal case—I office address will work in the case of a small refuge, accept that this was not family proceedings—was asked as it may be a small room at the back of the premises. by the court to assist in identifying the right questions However, the amendment points us to how rules of the to unlock the victim’s story.That is an extreme situation, court can be used. but it illustrates the point. We will continue to learn With regard to training, I recall some years ago about trauma, complex trauma and other conditions. rather tentatively mentioning training for the judiciary. The noble Lord, Lord Rosser, referred to the CPS’s The noble and learned Lord, Lord Woolf, who was guidance for prosecutors on the neurological impact sitting quite close by, said, “Oh, judges get lots of of trauma in rape and sexual offences cases. I was training these days”, so I am less hesitant about referring pointed to the Immigration and Asylum Tribunal’s to it now. The noble and learned Baroness, Lady Butler- joint presidential guidance note on vulnerable witnesses Sloss, also mentioned it—I guess she may be coming and appellants. I am very taken by paragraph 1 of that in on the subject shortly.I suppose they have continuous guidance, which says it is professional development, like the rest of us, even “a reminder of good judgecraft.” though for parliamentarians it is a bit limited. The proposed new clause is quite extensive and includes Baroness Helic (Con) [V]: My Lords, I intend to “a member of the Judiciary … an employee of the Children and focus mainly on Amendment 133, which is in my Family Court Advisory and Support Service … a social worker” name. Like the other amendments in this group, which and “an appointed expert”, and that is not an exhaustive I support, it is trying to make sure that the courts list. Subsection (1) refers to protect survivors of domestic abuse from further harm. “Any person who is working in a professional capacity in I thank the noble Lord, Lord Ponsonby, for his support family proceedings”. on this amendment and for his leadership on the We started debates on the Bill with references to others, and I take this opportunity to thank the noble awareness, but awareness is not static, because our Baroness, Lady Hamwee, the noble Lord, Lord Rosser, understanding develops, not least through the bravery and my noble friends Lady Newlove and Lady Bertin of people who have lived experience, or, as the Minister for their contributions. I have learned a lot from them. 2233 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2234

[BARONESS HELIC] understanding. Mandatory training, delivered by domestic I approach this debate humbly. I am not a legal abuse specialists, will ensure that judges at all levels are expert and I have not had what is called “a lived much better equipped to understand the effects of experience”. My intervention is informed by many domestic abuse and how to respond to it. As such, it cases I have come across, in particular the case of a will support and make possible the implementation of close friend whose experience at the hands of a judge all aspects of the Bill. I note also that similar training and experts lacking domestic violence training has is required for sexual violence, although that remains been traumatic, painful and unjust. I also want to put outside the scope of the Bill. on the record the work of the London Victims’ By stipulating that the training should be developed Commissioner’s office and Women’s Aid, from whom in consultation with the domestic abuse commissioner, I have learned an enormous amount. we can ensure that it truly teaches current best practice The Ministry of Justice review into the risk of harm and is aligned with national and specialist efforts to in family court cases involving domestic violence, which tackle abuse. As our understanding of domestic abuse concluded in June last year, found serious systemic improves, the courts will not, and should not, be left issues.Despite good intentions,domestic abuse allegations behind. are being overlooked, misunderstood and dismissed. My focus so far has been on judicial training, but Survivors and their children are being put at risk as a perhaps the real importance of the amendment is that result, something which I have heard about directly it goes further than that, extending not just to members from survivors. To quote one survivor who spoke to of the judiciary but to any Cafcass employees, social Women’s Aid and Queen Mary University of London: workers or appointed experts advising the court. That “All professional witnesses supported me but despite overwhelming is why this amendment is so necessary. The Judicial evidence, the judge said that I didn’t fit the profile of domestic College could offer better training for judges without violence victims as I wasn’t scared enough. Also I was too it, but that is not enough. educated and knowledgeable to allow DV to happen to me.” Expert witnesses rightly play an important role in This runs against everything we know about domestic advising and guiding the family courts, but of course abuse and the damage it does. they do not have a thorough understanding of every I am afraid that underpinning this is a lack of field or every issue. Many expert witnesses, whose judicial understanding. This is not a criticism of individual opinions might be crucial in shaping a court’s decision, judges; they face tremendous challenges, given the are not experts in domestic abuse at all. They are not complexity of domestic abuse cases and the way that well placed to advise on whether domestic abuse is society’s awareness and understanding of domestic taking place or on what its impact might be. abuse has improved in recent years. But, unfortunately, Training which gives a full picture of domestic the family courts’ approach to domestic abuse remains abuse—the context, the impact and how to respond—is much the same as 20 years ago, and the system is therefore necessary in order that experts in our courts stacked against the survivor because of both the pro- have a full picture of the situations they advise on. It contact culture of the courts and the intersecting will make them more aware of the risks and more structural disadvantages women experiencing domestic attuned to the harm that could be inflicted. It will help abuse face within then. implement the recommendations identified by the Ministry If we want to change the practice and culture of the of Justice review, which called for training for all courts so that they truly put the best interests of the participants, including a cultural change programme child at heart, they need to work at the cutting edge of and a multidisciplinary approach across all agencies our understanding of domestic abuse and its harms, and professionals. The result will be better processes not years behind, and, for that, specialist training is for survivors and, crucially,better outcomes for children. absolutely crucial. One survivor who contacted me recently described We have already heard several times in Committee how Cafcass does not see her as a victim of domestic about the need for better training. The noble and abuse because there are no broken bones or scars and learned Baroness, Lady Butler-Sloss, discussed judicial because she seems like a strong and capable woman. training, while Amendment 53 looked at the issue from But, as we all know, and as the Bill recognises, domestic another angle. Among those calling for improvements abuse takes many more forms than just the worst from outside are Women’s Aid and the London Victims’ manifestations of violence. It is no good changing our Commissioner. The Government have also recognised legislation to reflect that if we do not change practice the importance of training. The Ministry of Justice review as well. That requires training, and that is why we need panel recommended this amendment. “training for all participants in the family justice system”, and I was heartened to hear my noble friend Lady Lord Rooker (Lab) [V]: My Lords, it is a pleasure to Williams agree that judicial training needs to be revisited. follow the noble Baroness, Lady Helic. I will speak to I hope that she and my noble friend Lord Wolfson will Amendments 131, 132, 133, and 136. I shall not go be receptive to this amendment. back to my time in the Commons, when I dealt with Domestic abuse affects all aspects of a family court some cases in a personal way. case. It shapes how participants present at court, the I have had the benefit of a briefing from someone evidence they give and how they give it, and it is a who has sat as a court independent domestic violence critical factor in determining the interests at stake and adviser and has what I will call direct, hands-on street how safe child contact is arranged. However, as is experience and remains involved in the wider processes. recognised in the Bill, domestic abuse has a wide range She has worked in the voluntary sector and in law of impacts and requires a wide-ranging, intersectional enforcement, so her experience comes from both sides. 2235 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2236

5.45 pm planning and bringing that into the everyday structure. I will not repeat some of the points I just made on Regarding Amendment 131, my briefer, as I will Amendment 132. refer to her, said that confidentiality of refuge addresses should an absolute and non-negotiable issue. She has My noble friend said that Amendment 136 on child sat through many first appearances and trials and has contact costs is a probing amendment. I quite understand seen that confidentiality breached a few times, but a that. It is difficult, however, to see why victims should few was too many. She said that many professionals do have to pay towards contact arrangements between a not seem to appreciate the hard work that is put into child and the perpetrator in domestic abuse cases. As finding a safe refuge for women and children. It is not my briefer pointed out, the family court and child contact simply about finding accommodation for a person; are often the last attempts to control the victim. there has to be safety planning and an intricate detailed Victims of domestic abuse often have to leave jobs; risk assessment of whom the perpetrator might know they would have to pay for the refuge if they were or have links with in an area. There is also the schools working, and the cost can be several hundreds of aspect and the need to minimise the impact of the pounds a week. They are left sometimes trying to fight move for children while keeping the woman safe. As for a small amount of maintenance from the perpetrators many others have said, giving out details of the refuge —if indeed they can manage this—but they are not not only has safety implications for the case in hand left with the funds to pay for such contact. That can be but carries risks for the other refuge residents and, I damned expensive to finance, and can drain the rest of might add, the staff. Therefore, the issue goes much the finances, adding to the pressures. The victims will wider, but non-disclosure of addresses ought to be have sometimes used all available funds to leave the non-negotiable. abuse and start life again. These costs should fall on On Amendment 132 and the duty to share information, the perpetrator, partly to prove that they genuinely my briefer points out that victims are often brought wish to see the child, and not simply using this contact back to the family court over and over again by the as an excuse to see the victim at contact centres. same perpetrators, who often have restraining orders in place, so this is their only route. That, in a way, Baroness Butler-Sloss (CB) [V]: My Lords, I strongly should be an offence on its own; otherwise, it simply support as much training as possibly can be given to makes the victim relive their abuse, despite having a everyone who works in any way in the family courts, court order in place for their safety. My briefer said but I strongly oppose the proposal that this provision that it is very hard for untrained professionals to pick should be in primary legislation. This is a matter for up on that, as the perpetrator will often plead quite the Ministry of Justice; in relation to judges and legitimate-sounding reasons to continue to bring the magistrates in particular, it should be a matter for the victim to the family court. So Amendment 132 is Judicial College. pretty crucial. I am interested to see that magistrates who sit in the On Amendment 133, we have just heard an awful family proceedings courts have been consistently ignored lot about the need for training. My briefer says that in this debate, throughout many of the amendments. she used to dread family court attendances for domestic Many of these cases are actually in the family proceedings abuse cases, as the court did not quite seem to understand courts. Both the judiciary and magistrates have specific the safety planning issues involved in attending court. training from the Judicial College. I used to be the When working as a court independent domestic violence chairman of family training in the predecessor to the adviser, she would attend a criminal court and support Judicial College; I certainly gained a great deal from victims through the family court as well. Criminal seeking the advice outside the judiciary. Involving the courts were well up to date with safety planning and domestic abuse commissioner is an excellent idea. She would have dedicated advisers in court. In the family should be able to advise the Judicial College, particularly courts that she attended, more often than not my speaking to the family judges and the family magistrates, briefer would have to beg for the victim to be allowed but this should not be part of primary legislation. in through the back entrance so as not to encounter It is also important to bear in mind that each of the the perpetrator. Mostly, she told me, they were denied groups which are set out have their own training that request. It was also hit and miss as to whether processes. Again, it would be important for the Ministry they would be allowed not to sit in an open waiting of Justice to discuss with social services and with the area outside the court entrance. medical profession—almost certainly through the Royal More training is required in the family courts so College of Psychiatrists and the similar organisation that professionals recognise that child contact is often for psychologists —whether they have adequate training a last-ditch attempt by a domestic abuse perpetrator for dealing with evidence of domestic abuse. Any other to ascertain some level of control over their victim. independent appointed experts should be looked at for My briefer had witnesses who had faced horrific domestic appropriate training. I have no doubt that Cafcass gets abuse and were then made to sit virtually next to the training. It works with the Ministry of Justice and perpetrator to explain why they would feel unsafe if with the family courts, and its training is very important. child contact were facilitated. So she supports the But it is not appropriate in my view for this to be put need for family courts to train all—I repeat: all—the into primary legislation. staff involved in domestic abuse cases, so that they I was interested to read a case in 2020 called H v F; appreciate the true, long-lasting impact and effects of the Court of Appeal gave helpful advice on the importance such abuse and are able to make attending court a lot of the interface between the criminal courts and the less stressful, as well as implementing proper safety family courts on domestic abuse issues and suggested 2237 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2238

[BARONESS BUTLER-SLOSS] and seen the trauma and the effects of having lived that there should be specialist training for judges. within households where every single day was a day of I hope that that will be picked up by the Judicial abuse, not just by one perpetrator but by many family College. It would be helpful for discussion for the members. Trying to find the will to escape and then president of the Family Division, but please do not finding yourself sitting in court rooms with the whole put any of this into primary legislation. family on one side and you alone as a survivor on the However,although I do not support Amendment 133, other—it is incredibly difficult to explain the long- I support everything the noble Baroness, Lady Helic, lasting effects of that. I cannot imagine how that is has said about the importance of training. I entirely ever going to leave you and your psyche. agree with her suggestions and her very powerful speech, apart from the matter of primary legislation. 6 pm I strongly support Amendment 134 because of the To come back to the points I have listened to today, important research on trauma and its effect, as has I hope very much that my noble friend will note my already been said, on the ability of witnesses to give plea that these amendments must also be seen from evidence. It is believed that very often the problems of the lens of those people from BME communities who not remembering certain things are because of trauma. have no real opportunity to understand where to There is a lot behind this which needs to become part access support. Once they are in a system, the system of the training of all those involved in the family must share their circumstances across the different courts and domestic abuse cases. It is very important agencies, so that they do not find themselves reliving that there should be far more awareness of the impact trauma, again and again, in trying to navigate the of trauma on those who are the sufferers of domestic systems themselves, and then give up. abuse. My final point comes from what my noble friend Let me mention the two groups that I have referred Lady Newlove said: we must not disempower people. to throughout Committee: the victims of forced marriage, When they take the step to stand up and see people in and those of modern slavery who may not have gone court, that is the time for us to put all systems behind through the NRM; even if they have, they need help them to give them the power to get justice and to live a for their trauma. life as a normal, ordinary human being should live I do not think there is anything more to say about their life, with their own human rights. Amendment 136. Clearly the victim should not have to pay for the perpetrator to have contact; I should Baroness Warwick of Undercliffe (Lab) [V]: My Lords, have thought any parent seeking contact should be I will speak briefly on these amendments. It is a great expected to pay for it as a general principle. pleasure to follow the noble Baroness, Lady Verma, and indeed all the speakers in this thoughtful and very practical debate. Baroness Verma (Con) [V]: My Lords, I feel very I support Amendments 131 and 133 in particular. privileged to be following noble Lords in speaking to On Amendment 131, the Minister has already said this amendment. I want to put it on the record that I that under no circumstances should the address be am chair of UN Women UK. disclosed of the refuge in which the sufferer of domestic I shall speak briefly to Amendments 132 and 133. I abuse resides, but we have heard from the noble Baroness, fully support sharing information, from the perspective Lady Bertin, of the extraordinary lengths to which of women from minority communities. With the support perpetrators will go to stalk or otherwise pursue their of the work that H.O.P.E training is doing through victims. We have also learned of not only the physical Meena Kumari and her team, I have learned an awful danger to which this exposes the sufferer but the mental lot, even though I have been working in this area for a fear and anguish that it perpetuates. very long time. I have come to the conclusion that the The Government accept the principle that an address silos that exist have been compounded even further if must not be disclosed in any circumstances because of someone is from an ethnic minority background, English the potential appalling consequences, but unless non- is not their first language and they do not understand disclosure is a legal imperative captured in the Bill, how to access services and opportunities. They live embedding this principle and maximising compliance within multigenerational households, and when they with it will be weakened. Ambiguity and thoughtlessness finally try to leave and enter a refuge, it may not be in releasing a victim’s address will be allowed to prevail, equipped for their needs, or they enter the home of a with all the potential consequences we know that friend of a relative who can also be put at risk. could reap. It is critical to offer as much protection as possible The formal procedures of a court are intimidating and to try, through training of all our services,—whether enough for any citizen to think at least twice before it is the judiciary as in this case, or all our other embarking on a judicial case. How much more services—to get a much deeper understanding of the intimidating it must be for those who know that their perspective of women coming from minority communities, very life might depend on the anonymity of their who do not have the opportunities to understand the whereabouts. If they have any doubt that they can rely wider support mechanisms that may be available to on the court to protect them, that in itself could be a them. That is not just through language, but it is also deterrent against proceeding with their case. Putting through cultural norms of acceptance. this amendment in the Bill would be an enormous The noble and learned Baroness, Lady Butler-Sloss, reassurance to a victim, and a greater discipline and talked about forced marriages and modern slavery. I constraint on those who could potentially release their have come across numerous cases of forced marriages, address. 2239 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2240

On Amendment 133, it is worth reminding ourselves own futures and those of the children who have come of the amount of evidence we have heard about just with them to the refuge. Courts must guard against how traumatic survivors of domestic abuse find the giving refuge addresses away. court process. One cannot help thinking that some of We have heard that abusers have traced victims to those procedures were designed, even if not intentionally, refuges as a result of carelessness within the court to daunt or dishearten those who did not have the system, which has sometimes had serious results. The greatest confidence either in themselves or in the merits noble Baroness, Lady Bertin, gave us a harrowing of their case being understood and accepted, especially example. It may be that the provisions of the amendment as waiting times are as long as they are. Those who are slightly too wide, and that the assumption that have had their confidence and courage systematically refuges can be expected to have both an office and a beaten out of them might be forgiven for thinking that residential address is too optimistic, as my noble friend the courts are not there to help them. Lady Hamwee pointed out, but the principle is one From reading the debate in the other place on the that I hope the Government will welcome. Bill, I was struck in particular by a comment from Amendment 132 is designed to ensure that courts Peter Kyle MP, a long-time campaigner on these issues. dealing with different cases of domestic abuse involving Having recounted the awful experiences of some of the same victims share information with each other. his constituents, he went on to say that in his lobbying This is to enable greater co-operation between courts for change and to ensure that where,for example,criminal proceedings “Minister after Minister told me that a cultural change was and family proceedings concerned with the same victim needed in the … justice system.”—[Official Report, Commons, are continuing alongside each other, each court will Domestic Abuse Bill Committee, 11/6/20; col. 271.] know about the proceedings in the other. Again, the The evidence submitted to us in the briefings from amendment may need some redrafting to achieve clarity, Refuge and other organisations suggests that there are but the principle is right. However, I wonder whether too many such instances of judges and other professional an enlarged or parallel provision should be introduced workers in the judicial system failing to understand requiring a similar exchange of information between the dynamics of domestic abuse and so failing the courts involving the same abusers, as this amendment survivor, who has often made a brave and fearful deals with information about the same victim. decision to make the accusation and come to court in Amendment 133, concerned with training for the the first place. judiciary and professionals in the family court, is the Most organisations and systems must at some time most important of these amendments, as my noble accept the need for cultural change, and it is never friend Lady Hamwee, the noble Baroness, Lady Helic, easy. I hope that this proposal is not dismissed on the the noble Lord, Lord Rooker, and others, have reflected, basis that such soft skills do not belong in a court though I share the hesitation of the noble and learned of law. The courts have come a long way but, on the Baroness, Lady Butler-Sloss, about enshrining this in evidence of the many cases that we have been told primary legislation. Judges generally try to keep up to about in letters and briefings, they clearly have further date with evidence about domestic abuse and try hard to go. Putting this requirement in the Bill would be a to apply the law in accordance with the evidence that real signal of intent to make that change. I noted what they hear, putting aside, as far as they can, their own the noble and learned Baroness, Lady Butler-Sloss, prejudices. However, we must recognise that most said, and if the Minister is inclined to agree with her, I judges and legal professionals come from a world that hope that he will take personal responsibility for ensuring differs dramatically from the world that is home to that the necessary training is undertaken. many of the litigants who come before them: victims, abusers, witnesses and others. The more training that judges and professionals receive in understanding domestic Lord Marks of Henley-on-Thames (LD) [V]: My abuse, the better. Lords, I broadly welcome this group of amendments. The amendment as drawn does not define how the Although I have concerns about some of them, which training is to be established, except that it is to be in I will explain, and it may be that the precise drafting of consultation with the domestic abuse commissioner. some would benefit from revision before Report, it is Onreflection,Ithinkthatisright.Wehaveacommissioner- clear that they are drafted and tabled with a view to designate who is genuinely expert in this field and responding to the harsh plight of victims of domestic dedicated to achieving an improved response to domestic abuse as they go through the court system. If they abuse. I believe that training should also encompass have a common thread, it is about understanding and learning to recognise and respond to vulnerability and responding to the vulnerability of victims and the trauma to take into account the effect of abuse-related trauma of the abuse that they have suffered. on the ability of witnesses and parties to give evidence I will make a few points on each of the six amendments. before the court, and the quality of the evidence likely On Amendment 131, it is plainly right that the addresses to be received. I would go a little further than the of refuges should be kept confidential. The whole amendment and require that, before any circuit or point of a refuge is to enable victims of domestic district judge sits to hear a family case, they must have abuse to feel safe from their abusers. It is of the essence completed mandatory training in domestic abuse, as that victims should feel confident that they will not be arranged pursuant to the amendment. sought out and found by abusive former partners. I regard the training Amendment 133 as more likely Often such victims are with children, and the trauma to be effective than Amendment 134, which would that they have suffered at the hands of their abusers require the court to consider the vulnerability of victims has left them not only protective, but scared for their of domestic abuse, who are witnesses and parties to 2241 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2242

[LORD MARKS OF HENLEY-ON-THAMES] though they may be rare, from directing that the other proceedings, and the impact of trauma on the quality parent pay for or contribute to the cost of arrangements of the evidence that they give. This is in tune with the for that contact on the sole ground that the other objects of the Bill and no one could disagree with the parent has made an allegation of domestic abuse, or motivation behind it but, generally in domestic abuse even on the ground that the parent with whom the cases, judges try to consider the vulnerability of witnesses child is to have contact has in fact been found guilty of and parties, and the effect of trauma. Many, even domestic abuse. most, succeed in so doing. I hope that the view I have just expressed does not reflect complacency. It reflects 6.15 pm the general view that judges are trying to do justice, with I take as an example the case of a father who is regard to vulnerability, sensitivity and the circumstances broke and who is accused of domestic abuse by the of particular cases. Such judges benefit enormously wealthy mother of his child. If the court takes the from training but, for them, I expect the amendment is view, in all the circumstances, that the child—whose unnecessary. welfare is rightly paramount—should have contact Secondly,if judges fail properly to consider vulnerability with the father, how is it in the interests of that child and the impact on evidence from the trauma of abuse, for the court to be forbidden by statute to direct in any that stems from a lack of understanding or training to circumstances that the wealthy mother should pay or which the training amendment is directed. It cannot contribute to the cost of the child’s having contact be properly addressed by a bare statutory requirement with the father, thus frustrating the clear intention of imposed on judges to consider these matters. the court that such contact should take place? This amplifies the point that I made earlier, that judicial Finally—and I hope I will be forgiven some cynicism— discretion has a very important place in these decisions there is the problem well known to lawyers that, if a and the making of them, and that imposing absolute statute requires a judge to consider two or more rules or prohibitions on the courts can sometimes be factors, call them A and B, the judgments of the less entirely counterproductive. good judges will always state,boldly but sadly inaccurately, “I have fully considered factor A and factor B. In the The amendments in this group raise a number of circumstances, I have concluded”, and the conclusion difficult points of principle, and I and others will be follows, however flawed it may be, in its unappealable extremely interested to hear what the Minister says in compliance with the statute, which is matched only by reply. its lamentable lack of understanding. Lord Wolfson of Tredegar (Con): My Lords, I am I agree with the principle of Amendment 135 on the very grateful to my noble friend Lady Bertin and the transparency of court arrangements, which is that noble Lord, Lord Rosser, who have spoken to the every litigant who is unhappy with the result of a amendments tabled by the noble Lord, Lord Ponsonby. court hearing should leave court with full information The amendments relate, as has been said, to a number about the appeal process. However, I do not believe of different aspects of the family courts. I hope it will that that should go into the judge’s ruling. Often, be convenient for the Committee if I take each amendment although not always, rulings in family cases are given in turn. in oral judgments delivered at the end of hearing the case. They are very important in setting out the judge’s I turn first to Amendment 131, tabled by my noble reasoning, particularly for the Court of Appeal, but friend Lady Bertin, which, as she says, is a probing also for the parties. I have never been completely amendment. It recognises the crucial role of refuges in confident that the parties, who are generally shell-shocked supporting victims of domestic abuse and their children. by the proceedings, listen to every word that the I must thank my noble friend for her time in being judge says. willing to discuss with me this amendment, and indeed others. It should be incumbent on the court administration The amendment raises two important issues. I will to ensure that a document setting out the appeal first address that of the disclosure of the residential process, in clear terms, is given to every party and addresses of refuges. Existing legislation and family possibly others who want it, on departure from court court procedural rules allow parties to apply to withhold at the end of the day. It should contain details for the their address and that of their children from other court and a helpline equipped to assist with the relevant parties. There is therefore no requirement for those information. As the noble Lord, Lord Rosser, said in engaged in family court proceedings to disclose their his introduction, this is a probing amendment and it address. During family court proceedings, when adequate could easily be met by ensuring that this information information about the location of a child is not known is available through administrative functions in the to the court, the court can order any person who court. may have relevant information to disclose it. In those Amendment 136, the final amendment in this long circumstances, details of the child’s address and who and diverse group, would impose an absolute rule on they are living with are disclosed only to the court, not costs of contact. I find this difficult because it appears the other parties, in the first instance. The court then to be a provision dealing with extraneous financial determines how that information should be used. Where matters in the context of contact, and that is something there are allegations of domestic abuse, the court can that the courts try not to do. I cannot see, for example, and does hold that information as confidential. The why a court that decided that contact between a parent noble Lord, Lord Rooker, said that this was of critical and child was appropriate in the particular circumstances importance and the noble Lord, Lord Marks, said it of a given case should be forbidden in some circumstances, was essential, and I do not dissent from that. 2243 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2244

Subsection (3) of the proposed new clause would Before I turn to the next amendment, I once again prevent the service of a court order at a refuge’s thank my noble friend Lady Bertin for raising this issue, residential address. I fully appreciate that victims living both by way of this amendment and in her discussions in a refuge are fearful for their safety, and that receiving with me on this matter. It is clear that, across the or witnessing the service of an order at a refuge could Committee,wesharethesameaim—theonlyrealquestion be very distressing. In that context, I take on board the is how we best achieve it. point made by the noble Baroness, Lady Hamwee, that As the noble Lord, Lord Rosser, has explained, one must bear in mind the position of other occupants Amendment 132 seeks to place a duty on courts to of the refuge as well. In that context, therefore, the two share information relating to victims or those at risk cases illustrated by my noble friend Lady Bertin are of domestic abuse, and imposes an obligation on the concerning. family court to consider making a barring order where However, I am clear that there are contexts in which information shared by another court identifies that the court may need to serve an order on a party at the court proceedings may be being used to continue refuge they are staying in, and where not doing so may abusive behaviour towards the victim. pose unintended risks to the safety of children involved I have a great deal of sympathy for the aims of this in family law proceedings. For example, there may be a amendment, and I agree that better information sharing, concern that a child might imminently be taken out of in particular between the family and criminal courts, the jurisdiction. The welfare of the child is of key on the issue of domestic abuse is important. The noble concern in family court proceedings. Where the courts Lord, Lord Rosser, was kind enough to acknowledge have urgent welfare considerations, they must be able that there were some drafting issues with this amendment. to take swift action to locate the child. We must not Indeed, there are such issues, and therefore I hope the risk impeding the court’s ability to act immediately to Committee will find it helpful if I reply on the questions safeguard a child by limiting the addresses at which an of principle and not on points of drafting. order can be served. The Government are actively considering what more As my noble friend has outlined, the courts may can be done to improve the sharing of information already direct bespoke service arrangements based on between civil and criminal courts dealing with family the facts of a case. The Family Procedure Rules 2010 proceedings, including through the development of allow for court orders to be served at alternative integrated domestic abuse courts, which will be piloted addresses, such as the refuge office address, if that is later this year and seek to progress family and criminal suitable. Of course, as the noble Baroness, Lady Hamwee, cases in parallel. I hope that goes some way to meeting and the noble Lord, Lord Marks, pointed out, it may the concerns expressed this evening by my noble friend not always be suitable. As such, I am confident that Lady Newlove. the important outcomes sought by my noble friend are In particular, I draw to the Committee’s attention already provided for in existing legislation and court the recent amendment to the Criminal Procedure Rules, procedure. which comes into effect on 5 April. This will impose a I should add in this context that the Family Procedure duty on parties to criminal proceedings to alert the Rules, as I have said, allow for parties to apply for criminal court to any related family proceedings, and their contact details to be kept confidential from other it encourages the exchange of relevant information parties. But even where such an application has been with a court dealing with those proceedings. Weconsider made, parties retain responsibility for ensuring that the issue of information sharing between the jurisdictions any form or document they submit to the court does to be more appropriately addressed through procedural not contain the information they wish to keep private. rules, rather than in primary legislation, because the We have to consider in this context documents received court processes are somewhat technical in nature, I am from other people, such as medical reports or financial afraid—and, of course, one has to bear in mind the statements. It is difficult, if not impossible, for court often technical nature of management information staff to check all documents submitted to the court for systems. anyunintentional—I emphasise unintentional—disclosure Alternatively, there is also the issue here of judicial of contact details. guidance, where the court has a discretion over what Therefore, given that background, I submit that the information should be shared and with whom. I assure proposed clause is unnecessary and, perhaps more my noble friend Lady Verma that, in that context, importantly, would bring with it some obviously the position particularly of women from minority unintended, but very real, potential risks to some of communities, who may be more affected by the sometimes our most vulnerable children. Existing legislation and siloing nature of our court processes, is kept very rules allow for the protections sought through this much in mind. How to access support and manoeuvre amendment. But we recognise that, as we have been one’s way through the system once one is in it is of told in a number of cases this evening, concerns have central importance in this context. been raised in individual cases before the courts. The I move on to the related but separate issue of the Government are committed to protecting vulnerable use of Section 91(14) orders under the Children Act 1989, victims of domestic abuse, and of course this extends often referred to as “barring” orders. The amendment to those residing in refuges in particular. We actively proposes that the family courts are placed under a work with members of the judiciary, who are committed duty to consider such an order where it appears, based to exploring whether and how existing procedures and on information shared by another court, that cases are guidance could be strengthened to ensure that those being brought by a perpetrator of abuse as a means to residing in refuges are protected. carry on their abusive behaviour. 2245 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2246

[LORD WOLFSON OF TREDEGAR] worse. Judges, like all of us, are human and, although The noble Lord is right to raise the issue of perpetrators such cases no doubt exist, it is important to use this using the family courts as a means to continue their occasion to also pay tribute to the members of the abuse, highlighted in the report by the Ministry of judiciary who sit in the family court. They deal with Justice’s expert panel on harm in the family courts, the hardest cases that come before the courts with care published in June last year. The sad fact is that domestic and compassion and with an urge to do justice in the abuse perpetrators do sometimes use the courts as a particular facts of each case. way of perpetrating their abuse, often bringing their In the Government’s response to the harm panel victims back to the courts repeatedly, which, obviously, report published last year, we acknowledged that more can be retraumatising. In our response to the report, could be done to improve domestic abuse training. the Government committed to exploring how we could We have committed to trial improved guidance and further clarify the availability of Section 91(14) orders training across the family justice system in England in the family courts to further protect victims of and Wales, but we are not persuaded that primary domestic abuse. legislation is the way to go about this. Rather, the The amendment proposed by the noble Lord would individual bodies that make up the family justice system place a duty on courts to consider making a Section each have their own requirements for the undertaking 91(14) order, but only where relevant information has of domestic abuse training. I suggest that there is been shared by another court. We are determined that benefit in allowing those different bodies to tailor and courts should never be used as a forum to perpetrate adapt their training and approaches, which will depend further abuse. In that context, I am clear that further on the needs of their staff and the people they work clarification is indeed required to the law on barring with, so that the training is bespoke rather than “one orders to ensure that the use of Section 91(14) is size fits all”. We will be doing further work with all available to parents and children to protect them where those bodies, in particular the Judicial College, as part further proceedings would risk causing them harm or of the implementation of the Bill. further abuse. The evidence suggests that these orders are currently underused in circumstances involving Planning for reform across family justice is under domestic abuse and that they could be an effective tool way and training is a crucial element of that reform. I to further protect victims and survivors. can assure noble Lords that the relevant sector leaders, In answer to the question put to me by the noble including government, the judiciary, Cafcass and social Lord, Lord Rosser, and my noble friend Lady Newlove workers are already engaged and supportive of this as to when we will come back with further thoughts on aim. I can assure the noble and learned Baroness, this matter,the short answer is: before Report. Therefore, Lady Butler-Sloss, in particular that we will be working I thank the noble Lord for drawing attention to this matter, with the Judicial College as part of the implementation which we are actively considering. We are considering of the Bill. I will read and take on board the comments what more can be done to ensure the effective use of made by the Court of Appeal in the case to which she Section 91(14) orders in domestic abuse cases. As I referred as part of that. have said, we will consider this issue carefully ahead of I will pick up one point made by the noble Baroness, the next stage of the Bill. Lady Warwick of Undercliffe, who talked about soft I turn now to Amendment 133, on training for skills.I confess,I have always found that a very unfortunate judiciary and other professionals in the family court. description. Those soft skills are actually very hard to The noble Lord, Lord Marks, said that this amendment learn and, sometimes, by using the phrase “soft skills”, was the most important of the group. I am tempted to there is a danger that we underplay their importance. agree, though that is not in any way to undermine the Those soft skills are very important and they will play importance of any other amendment. To use a word a part in the training, but they will be contextualised that I think was used by the noble and learned Baroness, to the needs of the particular group. Lady Butler-Sloss, training is critical in this area. Having said all that about training going forward, I emphasise that I am not negating the value of existing 6.30 pm domestic abuse training, which is significant. Sector- I am clear on the need to ensure that these professionals specific training supports professionals across the family are fully supported and equipped with the knowledge courts, with appropriate variation to allow for focus and skills to properly identify and understand the on key aspects of importance for different professions. impact of domestic abuse on victims and their children. The judiciary and Cafcass social workers all already In that context, the noble Baroness, Lady Warwick of receive domestic abuse training via their respective Undercliffe, is no doubt right that the court process professional frameworks. As has been said, for many can appear daunting to non-lawyers and especially of the professionals in the family court, such training daunting to those who are already the victims of and development is mandatory for the purposes of domestic abuse. continued professional registration. In that context, I It is for those reasons, among others, that training know that both Cafcass and the judiciary have recently for professionals is essential. That is why the Government piloted new domestic abuse training and will be rolling have already committed to improving domestic abuse out more this year. As part of their post-qualifying training across the family justice system. In this context, standards, children and family social workers are expected I listened with concern to the examples given by my to have the knowledge and skills to identify the impact noble friend Baroness Helic and the noble Lord, Lord of domestic abuse and to work with other professionals Rooker, of cases where, despite the training given, to ensure that vulnerable adults and children are judges appear to have unwittingly made a bad situation safeguarded. 2247 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2248

For those reasons, I am confident that the Government exercises. I agree with the noble Lord, Lord Marks, are already seeking the same outcomes as the noble that it is dangerous, not only for the reasons he gave Lord is in his amendment. We are committed to but also as a matter of principle, to put specifics in improving the experience and outcomes of domestic statute, where the matter is best left on a general basis abuse victims and their children in the family courts for the judges to apply their discretion and powers on and we recognise the central importance of training in a case-by-case basis. this. I turn to Amendment 135 and the transparency of Amendment 134 highlights the issue of the impact court arrangements for the appeals process. It is one of of trauma on the evidence given by survivors of domestic the cornerstones of our legal system that there must abuse in family law proceedings. We know that many access to justice for all. That means that the court of the survivors of domestic abuse whom we see in the process needs to be as accessible as possible, allowing family courts have suffered trauma, and that the effects parties effectively to navigate the justice system, and of this can be wide-ranging and long-lasting. I respectfully that includes the appeals process. It is therefore important agree with the noble Baroness, Lady Hamwee, that we that parties know when they are able to appeal against are still learning in this regard. The effect of trauma a court decision, what the court process is for doing so on the brain has been said by some to be the final and, as was pointed out in the debate, any relevant frontier of medical science. We do know, even now, time limits that may apply. That applies in all cases, that this trauma can have a material and detrimental but perhaps particularly where domestic abuse is in impact on the evidence that people who have been issue. In that regard, I listened with care to the personal subject to trauma can give to the court, and the means experience that my noble friend Lady Newlove brought by which it is appropriate for them to give that evidence. to this part of our debate. It is important that we do all we can to ensure that The amendment seeks to impose a duty on the they are not retraumatised by the court process, and Lord Chancellor to amend the Family Procedure Rules that they can give good quality evidence to the court. to place a requirement on a judge in family proceedings It is fair to recognise the steps which have already been involving domestic abuse to include information on taken in this context, and the judiciary’s awareness of the appeals process as part of their ruling. In the Courts this matter, as explained to the Committee by the Act, the power already exists for the Lord Chancellor noble and learned Baroness, Lady Butler-Sloss. to require the Family Procedure Rule Committee to I will take this opportunity to set out—I hope fairly make provision for this in the Family Procedure Rules, briefly—how the current practices and procedures in so to this extent the amendment is unnecessary.However, the family court do protect survivors of domestic I should point out that this power has not been used abuse, and the work which is ongoing to strengthen since the enactment of those provisions, because it has that protection. We are aware, as a result of the harm been regarded as preferable for the Lord Chancellor to panel report, that many domestic abuse survivors continue work with the Family Procedure Rule Committee to to experience retraumatisation through the family court agree procedures, rather than imposing requirements process. The noble Lord, Lord Rosser, asked me what on it. work is being done; I will explain. In response to that Nevertheless, there is an important issue raised in report, the Government have initiated a number of the noble Lord’s amendment: the accessibility and steps to improve the support and protection provided comprehensibility of the appeals process. I appreciate to domestic abuse survivors in the family court. The that family court proceedings often involve complex Committee has already debated some of these in the subject matter and court procedure. The Government context of the provisions in Part 5 of the Bill. I referred are committed to supporting parties to navigate the earlier today to our commitment to improving the use justice system and understand the options available to of barring orders and our plans to pilot integrated them. In response to the point put to me by the noble domestic abuse courts. We are also working with the Lord, Lord Marks of Henley-on-Thames, Her Majesty’s President of the Family Division to consider amending Courts and Tribunals Service now provides guidance, practice directions to ensure that independent domestic both in hard-copy form and online at GOV.UK, explaining violence advisers, domestic abuse advocates and mental the court process, and that includes how to appeal health advocates are allowed to accompany the party against a decision made in the family court. That they are supporting in court. information indicates that parties may wish to seek We can also look to the experience and knowledge legal advice and also signposts the support services of of our judiciary—who are experts in assessing the Citizens Advice and local law centres. credibility of witnesses and are given considerable Moreover, in August last year, the Government training in domestic abuse—to identify those cases announced the launch of a joint initiative with the where further protections are required. I agree with Access to Justice Foundation, which provided £3.1 million the noble Lord, Lord Marks, that Amendment 134 of funding to not-for-profit organisations across the brings the Committee back, in large part, to the issue country at a local, regional and national level to of training raised by Amendment 133. That training provide free legal support, known as the Legal Support identifies the range of behaviours that domestic abuse for Litigants in Person programme. The aim of that can encompass, including emotional, economic, physical, initiative is to ensure better advice and clear guidance and sexual abuse, and the dynamics that may be for people without legal representation. Importantly, present in an abusive relationship. For family court alongside helping litigants in person to understand judges, training on vulnerable court users is also provided legal processes and their rights within them, they will through scenarios, including relevant issues in case also be provided with practical support throughout studies that judges are asked to consider in syndicate the duration of proceedings. 2249 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2250

[LORD WOLFSON OF TREDEGAR] to acknowledge the important speeches and contributions Finally, I turn to Amendment 136, which seeks to made on each of the disparate points. I hope, therefore, prevent family courts including in a Section 8 order that I have been able to reassure my noble friend any provision requiring a victim or complainant of Lady Bertin and the noble Lord, Lord Rosser, that the domestic abuse to pay or share the costs of child Government take seriously the issues that they have contact in specific circumstances. raised and that they will be reassured by my somewhat lengthy explanation and the actions we are taking to 6.45 pm address these issues. With that, I invite my noble friend In a case where domestic abuse has occurred but to withdraw her amendment. the court none the less considers that direct contact is safe and beneficial for the child—which of course Baroness Bertin (Con): It is a huge honour to try brings us back to an earlier debate today—the court and sum up such a rich and important debate. I made will consider if any directions or conditions are required many notes, a lot of which I cannot read, so I will try to carry the order into effect. In particular, the court to keep my remarks very brief. I thank noble Lords will consider whether contact should be supervised for their contributions and I have learnt a huge amount. and, if so, where and by whom. The court will also I put it on record that the Government have made consider whether such contact should be for a specified significant and worthwhile changes to the family court period or contain provisions that are to have effect for system. They have listened to the experts and been a specified period. That could include, for example, constructive in this area. transitional arrangements for a limited time. Perhaps I may respond briefly on the amendment—the In considering whether to make an order for any only one in my name in this group. I thank my noble interim direct contact, the court can require that to friend the Minister for his thorough response. He is take place under supervision. Cafcass has contracts kind, even when he disagrees with you, and I am with a number of supervised child contact centres to grateful for small mercies. I noted that his position has provide a fixed number of sessions that enable the not moved a great deal since Committee in the other impact of direct contact to be monitored and reported place. That is a shame and I respectfully and robustly to the court. No charge is made to the parties for those refute the charge that the amendment could somehow sessions and, in 2019-20, Cafcass spent £1.9 million to endanger children; I do not accept that. Wanting to provide more than 2,000 families with support through keep refuge addresses completely confidential does this short-term intervention. quite the opposite. When the matter was raised by my In response to the point made by the noble Lord, noble friend Lord Young of Cookham the other week Lord Rooker, I should say that the Government in another debate, my noble friend Lady Williams acknowledge concerns about the ongoing costs of expressed serious concern that not keeping refuge contact arrangements for domestic abuse victims once addresses confidential could ever happen, and I believe proceedings have concluded. As we stand here today, that the MoJ has now reached out to the refuges in it is not clear in what circumstances, or indeed how question, which I welcome. I therefore thank the Minister often, orders for paying or sharing the costs of contact for reiterating the point that the Government are working are made. Nor is it clear in how many cases domestic closely with the judiciary to explore how existing abuse victims are required to pay such costs. Not all procedures and guidance could be strengthened to ensure cases involving domestic abuse are the same and it that those residing in refuges are protected. would be important to understand the circumstances I thought the noble Baronesses, Lady Newlove and in which the court may order costs to be paid or Lady Helic, the noble Lord, Lord Rosser, and many shared and why. In that regard, the example given by others did an excellent job at explaining the remaining the noble Lord, Lord Marks, is valuable and underlines amendments in this group. On Amendment 132, I am the point that I have sought to make on a number of genuinely shocked that there is no duty on courts to occasions this evening—the critical importance of treating share information, so you can have a victim of domestic each case on its merits and allowing the judge to have abuse in several processes—family courts, civil courts, suitable discretion to make an appropriate order in criminal courts—yet there is no sharing of the information. each individual case. Surely the judge needs a full understanding to assess However, the Government have already made a the risk. I am not a lawyer, and I know that the law is a commitment in response to the harm panel review to complicated creature, but it seems to defy basic good commission a study on the implementation of current sense. The Minister said that the Government are judicial guidance in cases involving domestic abuse going to try and change things to make the criminal and other forms of harm. We would not want to and family courts run in parallel, which I welcome. pre-empt the findings of that study and will consider This is a little awkward, because I want to do justice to further recommendations in that regard in due course. other noble Lords but I do not know what they think Therefore, in response to the question put to me by the of the response from the Minister. But I thank him for noble Lord, Lord Rosser, as to when we would be able the positive remarks on Amendment 132. This sounds to provide further information on this point, I am like a step in the right direction; improving the use of afraid that I do not want to pre-empt the result of that barring orders certainly does. study. I think we can all agree that Amendment 133 is a I apologise to the Committee for the length of my key amendment and hugely important. It is a great reply but that has been the case for two reasons. First, shame that the Minister is not persuaded by primary the amendments each raise important and sometimes legislation. I find myself in the unusual position of quite complex issues. Secondly, it was right and proper disagreeing with the noble and learned Baroness, 2251 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2252

Lady Butler-Sloss, on this. I have enjoyed all her I welcome the Lord Chancellor’s announcement contributions and I think she is so knowledgeable, but that he wants to see this offence on the statute book, I say on behalf of the noble Baroness, Lady Helic, that with a maximum sentence of seven years.The Government she wants to pursue this in later stages of the Bill. are minded to include the offence in the police, crime, On Amendment 134, it sounds like family courts sentencing and courts Bill rather than this one. I will are behind the curve on trauma, and we need to do a argue that it sits best in this Domestic Abuse Bill; I great deal more to understand the implications. very much welcome the Government being open to The noble Baroness, Lady Newlove, set out a powerful discussions on where it should sit and on the wording case for Amendment 135. Feeling totally overwhelmed of the amendment. and alone are such common emotions for victims and, This new offence should be in this Bill because it is as the noble Baroness, Lady Verma, said, and many concentrated in domestic abuse cases. One police force noble Lords echoed, we must not disempower people. recently assessed a random sample of its cases featuring There are more conversations to be had, if I am strangulation and found that 80% were intimate partner honest. But, as I said, mine was a probing amendment, violence while 20% were other family abuse cases. This and I withdraw it. is clear evidence that this crime features predominantly within domestic abuse. It is important that this offence Amendment 131 withdrawn. is regarded by the police and prosecutors as part and parcel of the criminal justice response to domestic Amendments 132 to 136 not moved. abuse.Having it in this Bill will enhance the understanding that this type of offending is very much about domestic Clause 65 agreed. abuse. It is an offence used to frighten and have control over a person. TheDeputyChairmanof Committees(BaronessWatkins The amendments I am proposing would each add a of Tavistock) (CB): Wenow come to the group beginning new clause to the Bill to establish an offence of non-fatal with Amendment 137. I remind noble Lords that anyone strangulation or suffocation. Amendments 137 and wishing to speak after the Minister should email the 138 are alternatives. The first refers to all non-fatal clerk during the debate. Anyone wishing to press this strangulations or suffocations; the second limits the or the other amendment in this group to a Division offence to those where the victim and perpetrator are must make that clear in debate. personally connected, as defined in Clause 2. If the first amendment fails, the second will be next best. Amendment 137 The first, Amendment 137, is preferable, as it would Moved by Baroness Newlove protect more women—for example, those attacked by acquaintances or strangers and those in a more casual 137: After Clause 65, insert the following new Clause— dating situation. “Offence of non-fatal strangulation or suffocation Some might argue that as the Bill is for domestic (1) A person (“A”) commits an offence if that person intentionally abuse only, Amendment 138 should be considered. strangles or suffocates another person (“B”), where the strangulation or suffocation does not result in B’s death. However, there are two reasons I urge noble Lords to accept the first alternative. First, it is consistent with (2) A strangles or suffocates B if A impedes B’s breathing, blood circulation, or both, by doing any of the following the Istanbul convention, which forms part of the policy (manually or using any aid)— context of this Bill. The Istanbul convention sets out (a) blocking B’s nose, mouth, or both; or to prevent and combat violence against women in all situations, as well as to tackle domestic violence. The (b) applying pressure on, or to, B’s throat, neck, chest or more than one of these. wider amendment is consistent with this. Secondly, the Government’s amendment, described as the “rough sex” (3) A person guilty of an offence under this section is liable— amendment, introduced in the other place and now in the Bill as Clause 65, is rightly not limited to people (a) on summary conviction— who are personally connected. It covers any situation, (i) to imprisonment for a term not exceeding 12 months as the Government accepted this was an opportunity (or six months, if the offence was committed before the coming into force of paragraph 24(2) of Schedule 22 to address such harm more widely. The same logic to the Sentencing Act 2020), or applies for non-fatal strangulation or suffocation, which (ii) to a fine, or both; affects 20,000 victims every year in the UK. (b) on conviction on indictment, to imprisonment for a As noble Lords can imagine, being strangled is term not exceeding 7 years, or to a fine, or both.” terrifying. Fear of imminent death is a primal fear—we can all imagine that—and victims of these attacks are BaronessNewlove(Con)[V]:MyLords,Amendments137 right to be fearful. Less pressure than it takes to open and 138 are in my name and the names of the right a canned drink stops blood flowing to the brain. Loss reverend Prelate the Bishop of London and the noble of consciousness quickly occurs, normally in as little Baronesses, Lady Meacher and Lady Wilcox. I thank as 10 to 15 seconds. Incontinence of urine tends to them for working with me on this, as have the noble happen at around 15 seconds and bowel incontinence Lords, Lord Marks, Lord Anderson, Lord Blunkett, at around 30 seconds. A strangulation can quickly be Lord Trevethin and Oaksey, and others. I am most fatal if it triggers a heart attack, in which case death grateful to all noble Lords who have indicated their can occur within a few seconds. support to me. I am also grateful to the Government When a strangulation is survived the victims may for listening to the arguments put forward on Second have other health problems, such as a fractured trachea, Reading and for meeting my colleagues on this. internal bleeding, dizziness, nausea and tinnitus. A break 2253 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2254

[BARONESS NEWLOVE] bring this issue to public attention. Wesupport these vital in the flow of oxygen to the brain causes neurological amendments and our stated preference is Amendment 137 problems such as memory loss, facial droop and an as opposed to the wider Amendment 138. However,both increased risk of miscarriage—even a stroke several of the amendments would make non-fatal strangulation months later, as a result of blood clots. Many of these or suffocation a standalone offence on the statute medical effects would come as a surprise to most book and should be located within this Bill. members of the public, including the police, who A separate offence of non-fatal strangulation would therefore do not understand the seriousness of these help the police to spot domestic abuse and coercive crimes. Similarly, survivors of domestic abuse may not control. This is our opportunity to help those women realise the true dangers they face. who have suffered this dreadful form of abuse and forced control at the hands of their perpetrator. At its 7 pm heart, the Bill must be about providing services for In New Zealand, the introduction of a new offence people who have become the victims of abuse, and triggered increased knowledge in the medical profession indeed torture, in their own home. The importance of and the increased use of medical evidence in prosecutions. the Bill and these measures has only grown during the I am glad that the Government recognise that, as it coronavirus crisis as perpetrators have exploited lockdown stands, the law simply does not operate well for non-fatal to intensify their control and abuse. Calls to helplines strangulation. Our existing laws on assault are a very and concerns have increased greatly across all the four poor fit, as they focus on visible injuries. Here, there is nations of the United Kingdom. a high level of violence but little or no visible injury. Having a stand-alone offence will make assessing My good friend Rachel Williams, who is from cases much more straightforward for the police and Newport, is a leading campaigner. She has set up her prosecutors. own charity, Stand up to Domestic Abuse. I am proud to wear the organisation’s badge through every day of We can be even more confident about this knowing these proceedings. Rachel’s abuse story is well chronicled that the Police Superintendents’ Association supports and her support charity for survivors is simply outstanding. this new offence. That speaks volumes because its On the issue of non-fatal strangulation, Rachel has set members include the public protection police leads, up a petition to ask the Prime Minister to support its who deal with domestic abuse. These are senior officers inclusion as a stand-alone offence. When I looked at it with specialist knowledge; they know what makes a about an hour ago, the petition had secured 202,288 difference on the ground. Given that this is a grave and signatures. These are Rachel’s words: frequently occurring offence, it is important to get it on the statute book as soon as possible. I appreciate “Strangulation is a very symbolic act of control which leaves its victim in no doubt that there is a real and visceral threat to that the Committee will not want to rush this. As the their life. If you put your hands on someone’s throat and squeeze, noble Lord, Lord Anderson of Ipswich, said at Second the message and terror for the victim is clear. As a survivor of Reading, domestic violence, I know the impact it has.” “hurried law can be bad law”.—[Official Report, 5/1/21; col. 92.] When Rachel knocked at my door at the civic centre However,in this case, given how much work and thought asking for help and support for victims, I said that we has gone into this already—and given the experience would do our very best within the limited financial of other countries—I am confident that we can proceed framework of a local authority in such austere times. with the offence in this Bill. But what I could never have foreseen a couple of years We are nearing the end a journey for the Bill which ago is that I would be in a position in your Lordships’ began four years ago. Placing this offence in another House where I have the privilege of speaking to improve Bill that has not yet had its First Reading—and which, and amend the laws of our lands so that survivors I understand, is unlikely to reach Royal Assent until such as Rachel and support organisations will have the the end of this year—would be a considerable delay. very best protection that can be afforded by the most We know that, in the UK, two women are killed every appropriate legal framework. week by a partner or ex-partner. By this time next year, Wehave such an opportunity before us today.Non-fatal another 100 women will have lost their lives—women strangulation or suffocation must finally become a very much loved by their families and friends. A high stand-alone offence for the perpetrators of this most proportion of them will have suffered non-fatal repugnant of crimes. I support the amendments. strangulation before their deaths. Clearly not all deaths can be prevented, but some can. Improving protection is so urgent. We must not Baroness Meacher (CB) [V]: My Lords, I give my delay. This is a real opportunity to save those victims’ strong support to Amendment 137 in the name of the lives. I look forward to working with Ministers on this noble Baroness,Lady Newlove,and I want to congratulate issue, and I hope that the Minister can assure the her on her comprehensive and extremely powerful House that the Government will introduce this offence, presentation of the arguments in favour of these without delay, as part of this Bill. I urge all noble Lords amendments. Of course, I wholeheartedly agree with to support this amendment and beg to move. every word that she spoke. I also want to thank our Ministers for their support for this amendment, and Baroness Wilcox of Newport (Lab) [V]: My Lords, indeed thank the Home Secretary and Justice Secretary, the important issue of non-fatal strangulation has both of whom, I understand, support the amendment. been introduced comprehensively and powerfully by I thank too all those who have provided briefings for the noble Baroness, Lady Newlove. I commend her on us, in particular Julia Drown, who has been absolute her tremendous work in campaigning and lobbying to stalwart in support of our work on this issue. 2255 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2256

I understand that the Government have accepted accounts of the impacts of this crime on victims. I add the principle of the amendment and agree that it my voice in support of the amendment, which calls for should have general application rather than be limited non-fatal strangulation to be included in the Bill as a to cases of domestic abuse; that is, between couples stand-alone offence. who are personally connected, albeit that the amendment International research by Glass showed that non-fatal should stand within the Domestic Abuse Bill. That is strangulation by a woman’s partner was associated what I understand, and no doubt the Minister will update with a 700% increase in the likelihood that he would us on developments in the work of the Government’s attempt to kill her and an 800% increase in the likelihood lawyers, who I believe are drafting an amendment that of him actually killing her.Data collected by organisations would work in practice. It would be helpful if he could such as Stand up to Domestic Abuse suggests that confirm that the Government support the broader non-fatal strangulation is not a single, spontaneous amendment but also that it must be included in this assault but a pattern used by some perpetrators. Bill for the reasons already given. I do not want to I am sure that noble Lords have read the details of repeat them. what it is like to face this type of assault. We have In the circumstances, I want to keep my remarks heard them today and previously in your Lordships’ extremely brief and will just spell out the key reasons House, so I will not repeat them. The reality is that the why I feel so strongly that the amendment should be effect of putting this amendment in the Bill really will agreed. First, women who are victims of non-fatal be a reduction in the number of cases whose details we strangulation are seven times more likely to be killed might have to share on this matter in the future. subsequently. If there is anything that we should do, At present, the police too often deal with non-fatal surely it is to prevent murder. strangulation as a tick-box exercise on a risk assessment Secondly, the fact is that these very serious crimes form, rather than as a crime. Furthermore, the current are not being dealt with effectively by our criminal law leads to perpetual undercharging or no charging justice system simply because of the peculiarity that at all. Work from organisations such as the Centre for there might not be much to observe in the way of Women’s Justice highlights how serial perpetrators of immediate symptoms, while the medium or long-term domestic abuse and coercive control should have an consequences, both mental and physical, of this heinous official history that reflects their potential risk to others. and horrendous crime are extremely serious. Again, all that has been outlined by other speakers, so I will 7.15 pm not repeat it. The amendment that my co-sponsors and I are I have a lot of sympathy for the police, who do calling for will ensure that non-fatal strangulation can not—of course, they cannot—handle this very well. be charged as an indictable offence and not merely as a There needs to be a very specific, stand-alone offence misdemeanour or summary offence. This will reflect that they can grapple with and understand. The police the dangerousness of the perpetrator and the severe, are overloaded—they are very busy, as I know well traumatic injury non-fatal strangulation causes; it is from my work with the Police Complaints Authority something our peers across the world are already some years ago—so all my sympathies go to them. For doing. Modernising our response to domestic violence the police, as well as for the victims, we need to get this is needed and one can imagine how much more it is amendment on the statute book. needed in light of the stresses that the Covid-19 pandemic Thirdly, this is a particularly horrible way to be has induced. This is an opportunity to introduce an assaulted. The idea that it is not dealt with effectively offence of non-fatal strangulation or suffocation in and that people are not punished for doing it is completely the UK so that others do not suffer unnecessarily. I am unacceptable, so I say again that I very strongly support particularly pleased to hear the constructive comments the noble Baroness, Lady Newlove, and her amendments. from Ministers and note that the Government have a commitment to looking at this issue. I wholeheartedly support this amendment, which will confront this The Lord Bishop of London [V]: My Lords, I thank heinous crime. noble Lords who have preceded me and those who will follow. I also thank the steady campaigners, researchers Baroness Bertin (Con): My Lords, I give my strong and wider members of civil society for their tenacity in support to Amendment 137. I also thank the noble bringing the issue of non-fatal strangulation to the Baroness, Lady Newlove, for her determination and forefront of the Bill. It is something so nuanced that, if commitment on this issue and thank the Centre for addressed, it has the potential to change the trajectory Women’s Justice for all its work. I thank the Government of women’s lives post strangulation. for listening. It is right that non-fatal strangulation, Researchers, lobbyists and specialist organisations for all the reasons that we have just heard, will be a alike have spent significant proportions of their lives new stand-alone offence. It is very encouraging that trying to highlight the one thing that we all know to be we are discussing this issue with a shared understanding. true: that there is almost always more than meets the However, I hope the Government will listen again and eye. That said, I am delighted to have heard that the agree that the Domestic Abuse Bill is the natural home Government are committed to addressing this issue, for this amendment. The Bill has finally reached the and it is good to have heard so many noble Lords stage where we can look forward to Royal Assent in speak in favour of the amendment at Second Reading the not too distant future. Let us take the opportunity and today. and place this offence on the statute book now. We have heard powerful contributions from the Having the offence in this Bill sends a powerful noble Baronesses, Lady Newlove and Lady Wilcox, message that this kind of offending is concentrated in and many noble Lords will have received briefings and domestic abuse cases above all others. A rural police 2257 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2258

[BARONESS BERTIN] I shall say a little about the legal aspects of the force in England selected 30 cases of strangulation at amendment and its drafting. In particular, I shall random from within its data. It found that all were address the points raised at Second Reading by the cases of domestic abuse. That is not to say that there noble Lord, Lord Anderson of Ipswich, who unfortunately are not other situations where this form of violence is cannot speak today but invites me to mention his used—primarily against women and we do not forget continued strong support for the amendment and his them either—but the majority are domestic abuse gratitude to the Government for their commitment to cases, where strangulation is part of a wider campaign taking the best possible technical advice to ensure its of terror and control that victims and survivors endure effectiveness. day after day. The first point raised by the noble Lord was whether It is important for our criminal justice agencies to we ought to have a specific offence of non-fatal understand this offence in its proper context as a strangulation at all or whether a generic offence not well-established aspect of domestic abuse. This will confined to strangulation or suffocation would do as help them recognise it and take a robust approach. It well. For the reasons so ably set out so far in this will aid increased training and better investigation debate, strangulation and suffocation raise a particular techniques. We have heard that about 20,000 women issue because the violence involved is extreme and suffer from this form of abuse. It is frightening, traumatic the consequences in terms of abuse and terror for the and deeply harmful. The noble Baroness, Lady Newlove, victims so serious, yet often there are very limited was right to set out exactly what it means. It was not physical injuries to support a prosecution as a result. easy to listen to but we need to understand it. The New Zealand Law Commission, in its 2016 report As a society, we have been blind to this crime for far Strangulation: The Case for a New Offence, accepted too long. We are now finally shining a light on it and the case for a specific offence and recommended this need to protect those women as soon as we can. I lost approach. I understand that the former criminal law my own cousin to fatal strangulation and I know that commissioner at the Law Commission, Professor David a greater understanding of non-fatal strangulation Ormerod, who generally favours generic offences will save lives. We must not delay this. rather than specific ones and so recommended in his 2015 on the reform of the 1861 Act, nevertheless sees a Lord Marks of Henley-on-Thames (LD) [V]: My strong case for a new specific offence of non-fatal Lords, I join everyone who has spoken in thanking the strangulation. I agree. As to the actual acts constituting noble Baroness, Lady Newlove, for bringing forward strangulation or suffocation, the amendment closely this amendment, for the tireless way in which she has follows the New Zealand legislation, the Family Violence campaigned for it and for her powerful opening of this (Amendments) Act 2018, which implemented the Law debate. I also want to record how grateful I and other Commission’srecommendation, and there are no reports noble Lords are for the careful and sympathetic way in of any significant difficulties with the definition of which the noble Lord, Lord Wolfson, and the noble which acts are required. Baroness, Lady Williams, have listened to the arguments and responded to this amendment since Second Reading. I turn to whether a new offence should be limited to the context of domestic abuse. Indeed, as the noble I believe there is a clear consensus that the absence Baroness, Lady Newlove, explained, we are considering of a distinct offence of non-fatal strangulation is a two versions of this amendment, one limited to serious defect in our criminal law, which allows many domestic abuse and one general. My firm view is that cases of appalling attacks to be treated with far too the new offence should be generally applicable, as in little seriousness—undercharged and insufficiently Amendment 137, even though the evidence outlined punished. We have long had an offence outlawed by by the noble Baroness, Lady Newlove, establishes firmly Section 21 of the Offences Against the Person Act that this is generally an offence involving domestic 1861 of attempting to choke, suffocate or strangle in violence. However, I fully agree with the noble Baroness order to commit an indictable offence. However, not that the new offence of non-fatal strangulation should only is that Act now seriously in need of replacement, not be confined to the domestic context, particularly but that offence does not answer the need because it not as limited by the constraints of the definitions in criminalises strangulation only with an intent to commit the Bill, under which a similar intentional act which an indictable offence, so leaving untouched the violent did not meet the definition of domestic abuse would strangulation with which this amendment is generally be left to the inadequacies of the pre-existing law. concerned. As I said at Second Reading, this horrible form of violence is appallingly common and devastating I turn next to the difficult question of intent. The in its physical and psychological effects. Yet because amendment as drafted now provides that A commits the injuries are difficult to prove, prosecutions, where the offence if he “intentionally strangles or suffocates”B. they happen, are often for common assault, or ABH at In my opinion, the use of the word “intentionally” is most, demonstrably understating the severity the violence correct and appropriate. It makes it a requirement that involved. We have heard from the noble Baroness, the prosecution demonstrate that the act of strangulation Lady Newlove, and all other noble Lords who have or suffocation—that is, blocking the victim’s nose, contributed of the appalling statistics and the mouth or both, or applying pressure to the victim’sthroat, overwhelming evidence that demonstrate how serious neck, chest or more than one of these—is intentional. this form of domestic abuse is, how often it stems from It does not require that the offender be shown to have or leads on to further violence, and how a history of a further intent of causing any particular type of harm strangulation is a tragic, but regular, predictor of later to the victim. The necessary intention is what lawyers homicide. call a “basic intent”, rather than a “specific intent”. 2259 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2260

In my view, that is right because it is difficult to see an of domestic abuse. This offence should be embedded offender doing any of these acts without either intending in the Domestic Abuse Bill and should carry a maximum to cause injury or being completely reckless about term of imprisonment of seven years. whether such injury is caused. It should not be a Non-fatal strangulation is used as a weapon to necessary element of the offence that the exact state of exert power and control and to instil fear in an abusive mind should have to be proved, and this follows the relationship. Most victims experience a real fear that New Zealand Law Commission’s report. they will die, and many go on to suffer long-term However, when the New Zealand Parliament mental health issues. implemented that recommendation in that report, the Given the aims of the Bill, this amendment provides word “intentionally” was supplemented by the words us with a real opportunity to save lives. We must not “or recklessly”. In my view, the addition of possible miss this opportunity to introduce the offence of non-fatal recklessness to the basic intent adds nothing, because strangulation or suffocation in the UK. We must do all it is hard to see the acts involved in strangulation or we can to protect victims and help them to recover and suffocation being unintentional. I suggest sticking to rebuild a life free from abuse. the word “intentionally”as included in the amendment. The question also arises whether consent should be 7.30 pm a defence against the new offence. In my view, it should not, and the removal by Clause 65 of the defence of Baroness Crawley (Lab) [V]: My Lords, it is a pleasure consent to the infliction of serious harm for the purpose to follow the noble Baroness, Lady Redfern. I support of sexual gratification points the way. I can see no the important Amendments 137 and 138, particularly merit in permitting a defence of consent, which would Amendment 137, in the names of the noble Baronesses, doubtless lead to frequent court disputes when the Lady Newlove and Lady Meacher, my noble friend defence case would involve an assertion that the victim Lady Wilcox and the right reverend Prelate the Bishop consented to her own strangulation. I cannot believe of London. I am pleased to be in the company of so that that would be right. much wisdom and experience. On the last question raised by the noble Lord, The noble Baroness, Lady Newlove, as we know, is Lord Anderson, the sentences proposed lie somewhere the distinguished former Victims’ Commissioner, and in the middle of the range applicable to similar offences I understand that Dame Vera Baird, the present around the world. They seem to me to fit in with our commissioner, and Nicole Jacobs, the domestic abuse general sentencing guidelines.Setting maximum sentences commissioner designate, are also committed to these is always an art and not a science. The sentences proposed amendments. The noble Baroness has said today that are, of course, maximum terms of imprisonment, and the Police Superintendents’ Association—comprising actual sentences in practice always vary with the facts. all chief superintendents, who are in charge of public However, this amendment seems to me to have the protection units across the country, which will include tariff about right. domestic abuse specialist officers—also support the Finally,our LawCommission and Professor Ormerod, amendment. It sees the benefits of a stand-alone offence with his wide experience in the field, have both been of non-fatal strangulation or suffocation to charging consulted as to the formulation of a new offence, and regimes, to more serious custodial sentences and to will continue to be so. Professor Ormerod has expressed better police training and information. his willingness to assist the Government and the House It is very good news that the Government are now with further consideration of the details of a new offence openly in favour of filling this gap in the law in future before Report stage. I express the hope that the legislation, but our argument today is that we have a Government and we will take advantage of that generous completely appropriate Bill in front of us now that offer. could incorporate these amendments and could get this offence on the statute book this year, with all that Baroness Redfern (Con) [V]: My Lords, I thank my that could imply for victims and survivors. The highly noble friend Lady Newlove for her powerful introduction respected charity SafeLives estimates that 37% of high-risk to this standalone offence. I am pleased to have the abuse victims experience non-fatal strangulation. Research opportunity to take part in the debate and to give my in America, where 37 states have introduced a specific support to the many victims who have endured violence— offence, estimates that victims of non-fatal strangulation for them, it has been a long wait for justice. are seven times more likely than non-victims to be I rise to speak to this amendment, which addresses killed in domestic abuse incidents, as the noble Baroness, the offence of non-fatal strangulation or suffocation Lady Meacher, has said. New Zealand and Australia whereby a person commits such an offence if they have also been proactive in this area of law. The Centre intentionally strangle or suffocate another person but for Women’sJustice has argued that this is a gender-specific it does not result in death. This must be recognised as crime that should be recognised in the Bill. a distinct offence in its own right and not just treated Dame Vera Baird and Nicole Jacobs, in a joint as common assault, as has happened in so many cases, statement, have called attention to the fact that this particularly given that many victims display hardly terrifying experience of non-fatal strangulation or any external signs of abuse even after serious assault. suffocation can cause significant long-term mental and Crimes of strangulation and asphyxiation are the second physical trauma, as the noble Baroness, Lady Newlove, most common method, after stabbing, of killing in has so powerfully described, and that at present the female homicides. The amendment would also help law is not fit for purpose. Non-fatal strangulation is a the police identify the harm which has occurred, thereby common feature of domestic abuse and a well-known enabling them to respond appropriately to this method risk indicator, yet, given the inadequate tools available 2261 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2262

[BARONESS CRAWLEY] This would not only save the victims from further to them at the moment, the police are often only able and more serious harm; it would also be better for to deal with it on a risk assessment form rather than as society, as the earlier intervention would be easier and a crime. When a charge is brought it is often common more cost-effective, compared with dealing with the assault, which does not reflect the severity or hidden horrific further abuse and deaths of victims. In many scale of the offence, as the noble Baroness, Lady Redfern, of these cases, this will be about protecting children as has said. well as the victims themselves. Ultimately,non-fatal strangulation is a highly effective It is shocking that, in this country, thousands of tool of power and control, used to engender fear and victims experience the trauma of non-fatal strangulation terror in families, and is no doubt being used today every year. Given that the current criminal justice with enthusiasm by perpetrators behind the closed system is clearly not able to protect these victims, we doors of another Covid lockdown. There is really no cannot afford to let this Bill pass without addressing time to delay in coming to the aid of such vulnerable this issue. We all know how commitments to introduce victims and survivors. We need to see these amendments something in a future Bill can get derailed through no incorporated into this Bill, rather than waiting for fault of those making those commitments. There is a future Bills, especially in these very uncertain times. suggestion that this new offence could go in the police, I am sure that the Minister, who appears to be a crime, sentencing and courts Bill, but that is not the good listener, recognises the urgent need to resolve Bill before us now; it has not even started its journey in this matter and to fill this gap in the law. I look the other place, and it may well be delayed for months forward to his response. into the future. We need to get this right, and there is no reason why Baroness Finn (Con) [V]: My Lords, I speak in this offence cannot be included in this Bill to get the support of Amendments 137 and 138 and pay tribute victims the protection they need now. If we miss this to my noble friend Lady Newlove and many others for opportunity to introduce this offence, many women their tireless work and campaigning. I, too, thank will die, others will suffer unnecessarily and we will be Julia Drown for her help and support, and I very behind most of the English-speaking world on domestic much welcome the Government’s acknowledgement abuse protection. of this issue and thank Ministers for their support. The UK has been rightly proud of its leading role I stress that this is the right Bill for this offence: on the world stage on gender-based violence over non-fatal strangulation is about fear, control and a many years; this amendment is needed to ensure that toxic mix of physical and psychological abuse, and it is we stay ahead and do all we can to protect victims. often done with the express intent and insidious subtlety Rather than have the uncertainties of a future Bill, we of evading detection. As such, it can be protracted and can address this issue now in a Bill that will come into cause lasting and even permanent harm. Crucially, the law very soon. I urge the Government and Ministers current law is letting victims down; this Bill is our to work with my noble friend Lady Newlove and to chance to put that right and protect them. include this new offence in this Bill. Many other noble Lords have already spoken about the horrific nature of non-fatal strangulation, but the Baroness Bennett of Manor Castle (GP) [V]: I join current problem of undercharging highlights that the every speaker in this rather large group of speakers in true nature and intent of the crime is not fully understood. offering my support for Amendments 137 and 138, As always, context matters: the current narrow approach with a preference for 137. I join all of the others in not only limits the sentencing options but has other paying tribute to the noble Baroness, Lady Newlove, serious consequences, as it impacts on future risk for her very hard work on this issue. However, when assessments and public protection decisions. These the idea of a new offence was first put to me, I started include future bail applications, sentencing decisions— from a position of scepticism. We all know that there including dangerousness determinations—and Parole are far too many cases in history where Governments Board decisions. who are wanting to be seen to be doing something As the seriousness of the crime is not currently say “Oh, we will have a new law and create a new understood, neither, unfortunately, is the management offence”. of its consequences. This is particularly the case when However, when I looked at the evidence and saw the it comes to contact arrangements for children. To extensive briefings and data assembled by campaigning protect the welfare of children, these arrangements groups and NGOs, I found that there is clearly a case. should reflect the seriousness of the crime; unfortunately, There is a specific set of behaviours that constitutes an they do not. offence. The case is made very clearly that non-fatal I am conscious that, to tackle non-fatal strangulation strangulation and suffocation is not generally a failed as effectively as possible, we need all relevant agencies attempt to kill, but rather a deliberate attempt to to work together. Early intervention is needed to mitigate control and exert power. The law currently has no real damage and even save lives. Unfortunately, current proper way of dealing with that. The fact that there is understanding of symptoms and consequences will little visible injury in many cases means that at best it likely lead to cases being missed and narrow or absent may appear as a charge of common assault, and many diagnoses offered. If those in the health service seeing others have pointed out how inadequate that is. It is patients with the relevant physical and psychological also worth pointing out that it means there is a six-month conditions are conscious of the links to non-fatal limit for charges being brought. We know that domestic strangulation, the problem can be picked up earlier abuse is very often disclosed only after a large number and the victims supported. of incidents have occurred. It also means that, as a 2263 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2264 summary offence in a magistrates’ court, it does not tradition in matters sexual to blame the woman for her get the level of attention and resources that this proposed own downfall: she wore a short skirt or a low top; she new offence would attract with the charges. was asking for it, and so on. It put the onus for male The other point which has not been made but should behaviour on to the woman. be, is that I very much do not believe in reinventing the wheel in terms of law and government policy. We can 7.45 pm look around the world to see other places that have Men often use non-fatal strangulation as a control been leading on this. Reference has been made by the mechanism or say that their partner consented to it or noble Baroness, Lady Crawley, to the 37 states in the wanted it. Non-fatal strangulation is a crime in its own US which already have comparable laws, and most right, so it should have an amendment in its own right. Australian states do. It is great that the Government clearly acknowledge The real leader in this has been New Zealand. I the need for this to become law. They tell us they will note that this started with the Aotearoa—New Zealand— bring it forward in another Bill, but the Domestic Law Commission 2016 report, which in December 2018 Abuse Bill is exactly the right place for it because of led to its introduction of a new law. I would imagine that very close connection between strangulation and that the Minister is well aware of the recent report domestic abuse. As has been said, non-fatal strangulation from the Chief Victims Advisor to the New Zealand often ends in fatal strangulation. We know that, where Government to the Centre for Women’s Justice, which there is domestic abuse, any strangulation increases notes that in the first year after the offence was brought the odds of murder sevenfold. There is a clear path in, there were 2,000 charges—most occurring in a from escalating violence to homicide, with non-fatal domestic violence context. A calculation has been strangulation as the final step before murder. made that, comparing our populations, that means in The chief executive of the Training Institute on the first year we could see 26,400 charges in the UK. Strangulation Prevention in the USA said, Of course, no two countries are exactly comparable, “Statistically, we know that once the hands are on the neck, but I think that rough comparison tells you that if we the very next step is homicide ... They don’t go backwards.” delay introducing this charge, there will be thousands We cannot consent to this. and thousands of women who will not have the protection of the law who should and could have the protection Lord Hunt of Kings Heath (Lab) [V]: My Lords, like of the law if it is included in this Bill. It is very good to other noble Lords I pay warm tribute to the noble hear that the Government are listening on this issue, Baronesses, Lady Newlove, Lady Wilcox, Lady Meacher, but the case for action now is overwhelming. I commend and the right reverend Prelate the Bishop of London Amendment 137, in particular,to your Lordships’House. for their tremendous campaign to deal with this abhorrent crime. It is so pleasing to know that the Government Baroness Featherstone (LD) [V]: My Lords, I greatly have agreed to put this offence on to the statute book. support Amendment 137 and thank the noble Baroness, I cannot really add to the extraordinary speeches Lady Newlove, for such a powerful and comprehensive we have heard tonight but I give my support to the introduction, thus making it necessary for me to make noble Baroness, Lady Newlove, in proposing why this only a few brief remarks. During my time at the Home Bill—as opposed to the police and sentencing Bill—is Office, I remember a particular incident that demonstrates the right vehicle for this offence. We have heard in this the attitudes at play in the issues before us. debate and at Second Reading about the issues facing In 2014 a so-called pick-up artist, Julien Blanc, was the police; the problems they have experienced in due to visit the United Kingdom giving lectures to giving the right attention to non-fatal strangulation men on how to successfully pick up women and get and, subsequently, the undercharging of the offence. them into bed. On Twitter, the photo he used to Surely then, if we want to change this around, it is advertise his tour showed Blanc with his hand around better for this new offence to be part of a cohesive the throats of women. He then tweeted the photo with package of measures in the Domestic Abuse Bill. the hashtag #ChokingGirlsAroundTheWorld. When the Bill is enacted—as it will be in a few weeks’ I spoke out, as my responsibility was for tackling time—accompanying the rollout of the new legislation violence against women and girls, to say how concerned will be a package of training and support measures, so I was by the sexist and abhorrent statements Julien Blanc that people in the field are prepared for it. It also had made about women and that if he was allowed to makes sense for the police that it is dealt with as a perform in the United Kingdom, I had no doubt cases cohesive package of measures. of violence and intimidation of women would follow, The third reason why it should be in this Bill is the because his thesis was that physical aggression made one spelled out by my noble friend Lady Crawley: we you more attractive as a man and would give you more are dealing with an abhorrent crime. This Bill, with its success and more sex. Someone who, in my view, wishes huge support around this House and in the other to incite sexual assault should not be granted a visa. place, will be law in a matter of weeks. Why wait for a I simply use this as an example of the mindset that new Bill, which would take months to come through is out there that illustrates how women are in jeopardy. and be enacted? Ministers have shown that they are In days gone by, that mindset echoed down the corridors listening. It is much appreciated. I hope they will listen of our judicial system; to an extent, it still does so, to our arguments that this Bill is the right vehicle. because we are debating it today. It is part of the history of women being blamed for their own rape. Lord Lucas (Con) [V]: My Lords, I too welcome Not that long ago, a woman’s previous sexual history these amendments. However, if this law is going to be was used to exonerate a male rapist. There is a long passed it should be accompanied by clear advice for 2265 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2266

[LORD LUCAS] Lady Williams, who has been extremely helpful on the young. Having been guided around TikTok by a this, knows it. I think that the noble Lord, Lord Marks, young, adult female, there seems to be something of a in his erudite speech, indicated that even the noble fashion for strangulation among young women. They Lord, Lord Anderson, has changed his mind since say, “I like this”; they say that a boy who will not do it Second Reading. I am glad if he has, because I was is a pussy, not sexy enough, not interesting enough and going to refer him to the excellent Second Reading not man enough to do what the girl wants. Under those speech by the noble Lord, Lord Young of Cookham, conditions, it is really important that the Government about his experiences in 1975. issue clear, unambiguous and easily found advice on All of us can coalesce and praise the Government the consequences that the introduction of this amendment and applaud the campaigners, particularly the noble would have for that sort of activity. I would be grateful Baroness, Lady Newlove, for what is tonight a unified if my noble friend would let me know what the approach to dealing with a horrendous crime, which Government’s intentions are in this regard, in writing has led to so many deaths and can be stopped from if not this evening. doing so in the future by a single agreement by government Ministers. Lord Blunkett (Lab): My Lords, the Committee has heard some extremely powerful and focused Lord Harries of Pentregarth (CB) [V]: My Lords, speeches this evening. I add my voice to those I speak briefly in support of Amendments 137 commending the noble Baroness, Lady Newlove, and and 138, especially Amendment 137. It has been the signatories of these amendments, and give my introduced extremely powerfully by the noble Baroness, support to Amendment 137. Given what the noble Lady Newlove. I do not think that any of us would be Lord, Lord Lucas, has just said, I hope that the online here at this stage of the evening, late in the Bill, if we harms Bill will deal with social media outlets that were not absolutely convinced of the importance of a perpetrate the kind of messages that he enunciated. stand-alone offence of non-fatal strangulation, and of The noble Baroness, Lady Newlove, and all those course the Government also recognise this. who have spoken, have done so with clarity and unusual Perhaps we could pause briefly to pay tribute to, brevity for the hybrid House; I will try to emulate that. I first, those victims of domestic violence—particularly have two things to say. First, women police officers who those affected by non-fatal strangulation—and their have spoken to me are crying out for this focused and bravery in coming forward, to the campaigning groups clear piece of legislation, as enunciated in Amendment 137. that have been willing to take up the issue on their As the right reverend Prelate the Bishop of London behalf, and to the parliamentarians, both in the other said, they do not want a tick-box approach. They House and in this place, who have been willing to want to change the relevant form—124D—to be able respond to it. In a dark time, it is good to celebrate the to obtain the Crown Prosecution Service’s direction to fact that something is working in our democracy in take those who are perpetrating this crime through to this kind of way. a successful criminal prosecution. As has been said The key issue this evening for the Government to so often this evening, this is clearly about domestic face is not whether there should be such a stand-alone abuse. offence—I think everyone is convinced of that now—but Secondly, why should this Bill be the vehicle to take whether or not it should be in this Bill. It seems to me this forward? There are two reasons. One is that it is that the Minister has to face two real questions put self-evident from everything that has been said, the forward by the noble Baroness, Lady Newlove, and briefings that have been received and offline discussions, also very powerfully by the noble Baroness, Lady Wilcox that everyone accepts that this legislation is needed of Newport, the noble Lord, Lord Hunt of Kings and is needed now. There is no reason whatever to Heath, and others.First, if 80% of non-fatal strangulations delay until another criminal justice or sentencing Bill take place in the context of domestic violence, is there which may take its turn after a forthcoming Queen’s any reason at all why it should not be in this Bill? That Speech, somewhere down the line, where this amendment is where it belongs. Secondly, as was said by the noble would have to be moved all over again. We would have Lord, Lord Blunkett, and many others as well, the to go through all the same campaigning, representations police are crying out for something clear and associated and speeches to gain something that the Government with this Bill, because it will both raise awareness of themselves have thankfully conceded is a necessary this terrible form of cruelty and ensure that there is improvement to the law. appropriate training in order to help the police to I have one plea for the Minister. He has taken to recognise it. this House like a duck to water, but there is one lesson I very much hope that, when the Minister comes to that those of us who have been around in politics respond, he will be able to look at these two issues in know all too well: you do not ask your own colleagues particular and agree that there is a proper place for in another House to vote down something that they this in the Bill. know is eminently sensible and required, in some vain hope that they will forgive you for not having done it Baroness Burt of Solihull (LD): My Lords, I commend as quickly and effectively as possible because someone the noble Baroness, Lady Newlove—and other noble in the legislative committee of government—it changes Lords, but particularly she—on her determination its name from time to time—has decided that they do and her excellent speech in explaining the horrific not want to have any further substantive amendments nature of this crime and its repercussions. Like many to the Bill. We all know that this would be arrant noble Lords, I was delighted to receive a letter from nonsense: the Minister knows it, and the noble Baroness, the Minister,the noble Baroness,Lady Williams,regarding 2267 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2268 the Government’s willingness to introduce a new offence and Lady Wilcox, and the right reverend Prelate the of non-fatal strangulation on to the statute book as Bishop of London for the clear case they have submitted soon as possible, albeit not within this Bill. today before the Committee on why the offence of I had thought that the Minister would be at the non-fatal strangulation is necessary. All the matters Dispatch Box this evening, so I am going to put a that we have discussed today are important, but this number of questions to the noble Lord, which I hope may well be the most important. In that context, I he will do his best to answer, although of course he hope noble Lords will forgive me if I do not acknowledge cannot stand in the Minister’s shoes. Can he tell us each of the contributions individually, both because what the Minister meant by of time and because, if I may say, many of the “a commitment to consider a new offence of non-fatal strangulation”? contributions were to the same effect. I will seek to Are the Government going to introduce one or are respond to the substantive points made without always they not? Something a little bit definite would be very a personal reference; I hope I will be forgiven for that. much appreciated. Could the noble Lord elaborate on I must, however, make a personal reference to my what she meant by making the offence “proportionate”? noble friend Lady Newlove. I join with others in She spoke of ensuring that more convictions can be paying sincere tribute to her for the way in which she achieved, but can he please give any indication of what has promoted this issue. She explained how non-fatal this might look like? strangulation can be terrifying and the effects long lasting. As the noble Baroness, Lady Crawley, said, it 8 pm is often used as a method of control and, to adopt the Of the two amendments tabled by the noble Baroness, phraseology of the noble Baroness, Lady Wilcox of Lady Newlove, and others, it was good to be able to Newport, there is a real and visceral effect. I also understand why she tabled a general offence and an mention in particular the personal and very moving offence where the victim and perpetrator were personally speech by my noble friend Lady Bertin, with her connected as defined in the Bill. One can see the mention of some circumstances very close to her. difference between the two immediately. As noble Lords will have noted, there are two In Amendment 137, which seems to have attracted amendments on non-fatal strangulation before the the most favour from supporters of these amendments, Committee. Amendment 137 would have general one would construe that this offence could be used in a application: it would apply to all cases where non-fatal way to prosecute individuals who had threatened with strangulation or suffocation has occurred, including a view to a specific outcome—for example, to silence a cases where non-fatal strangulation or suffocation featured witness or achieve compliance in a criminal act, as well as a factor during a domestic abuse incident. By contrast, as the intimidation of women and the “rough sex”defence Amendment 138 creates the same offence, but the so convincingly squashed in the Bill. In Amendment application is limited to cases of non-fatal strangulation 138, where the victim and perpetrator are personally or suffocation where this occurs in a domestic abuse connected, it is a much more sinister, calculated and context. The maximum penalty for the new offence in long-term offence. Both are important. Can the Minister each proposed clause is the same—that is, on conviction tell the House whether both offences will be introduced, or indictment, seven years’ imprisonment or a fine, or whether they will be treated differently in law and both. whether the personally connected offence will attract a potentially higher tariff? I apologise for bombarding I am aware that the proposal to create a stand-alone him with questions, but can he give the House an idea? non-fatal strangulation offence stems from campaigns If this offence is not to come in this Bill, what legislation conducted last year by the Centre for Women’s Justice do the Government have in mind to introduce it, and, and We Can’t Consent to This. Specific clauses to create realistically, how soon can this come about? a new offence were tabled in another place, although they were different to those before us today. Those If the introduction of this new offence is anywhere proposed clauses were, however, withdrawn on Report as effective as in New Zealand, as has already been in the other place and were not put to a vote. described by the noble Baroness, Lady Bennett of Manor Castle, it will be transformational in terms of Before setting out the Government’s position on reporting and police response. At present in the UK, this matter, let me start by saying that we entirely this cruel and controlling practice is usually prosecuted— sympathise with and fully understand the strength of when it is prosecuted at all—under the heading of feeling. We unequivocally support the intention behind “common assault”, which does not even start to get these amendments and have given a firm commitment near the severity of the offence. As one noble Lord to legislate for a new offence of non-fatal strangulation. recently said of the arresting policeman for this new I hope that, as the right reverend Prelate the Bishop of offence, “It’ll give him something to hang his hat on”. London explained, this will indeed lead to a reduction Very soon the game of so many abusers will be up, in the appalling details that we may have to hear in the and it cannot come soon enough. I join all the other future. In answer to my noble friend Lady Redfern, speakers to ask why this offence cannot be put in this that would be a stand-alone offence. Bill. How many women does the Minister think will die Several contributors have mentioned the position if the Government wait for another Bill to come along? in other jurisdictions. It is right to say that Australia, Canada, New Zealand and several states in the USA Lord Wolfson of Tredegar (Con): My Lords, first have created a non-fatal strangulation offence. Those and foremost, I offer my sincere thanks to my noble offences have been cited by the two groups that I friend Lady Newlove,the noble Baronesses,Lady Meacher mentioned as offering a basis on which any new offence 2269 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2270

[LORD WOLFSON OF TREDEGAR] More importantly, as was pointed out by a number in England and Wales could be modelled. Those stand- of contributors, non-fatal strangulation is relevant to alone offences, however, differ across those jurisdictions. and found in, but plainly not limited to, domestic abuse Some apply widely but are dependent on certain factors circumstances. Although I understand and accept that being met, such as the victim not giving consent, or it is more likely to occur in a domestic abuse setting, it the act causing them to lose consciousness. Other is nevertheless the Government’s position to ensure that variations of the offences are narrower in scope, in if we create a new criminal offence, it applies equally that they are restricted to instances of strangulation to all parts of society, does not create any loopholes, or that occur in a domestic abuse context. Those offences conflict or impact on other parts of the legal framework. are not without criticism. Some people claim that they I turn now to the detail of the amendments: as are too broad and can capture behaviour that is not drafted, both are deficient and could not be accepted intended to harm and should not be criminalised. by the Government. Importantly, both amendments It is also worth pointing out that the offences in seek to create a new offence to criminalise conduct that those jurisdictions have not been placed on the statute is already unlawful. In addition, the proposed maximum book without significant prior review to assess their penalty of seven years’ imprisonment for conviction impacts on other areas of law. In addition, most of or indictment is problematic—the level of the penalty those legislative measures tend to be accompanied by needs careful consideration. Our main concern here is a package of non-legislative measures—for example, that seven years exceeds the maximum penalty for programmes for seeking to change perpetrator behaviour, serious offences such as GBH, when the injury caused toolkits for the police to assist in identifying non-fatal by non-fatal strangulation may be significantly less strangulation cases and guidance for agencies to support than the injuries that amount to GBH. victims of non-fatal strangulation. There are other significant problems.The amendments I also draw the attention of the Committee to the do not deal with the element of consent, do not current law and how non-fatal strangulation is currently consider any exemptions and do not provide explanation captured. Such behaviour can be captured, depending of how they would work with, and alongside, the current on the seriousness of the crime, under offences ranging legal framework. The amendments are also limited to from common assault and battery to attempted murder. a person’s breathing, or blood circulation, or both, However, in addition to those offences, there are others being impeded manually—by hand or through the use that can cover non-fatal strangulation and suffocation. of an aid. We are, however, aware of offences of this For example, it can be part of a pattern of behaviour nature where a person’s breath or blood circulation amounting to an offence of controlling or coercive has been impeded in other ways, such as the use of behaviour under Section 76 of the Serious Crime Act other body parts—a knee placed hard upon a neck, 2015. Additionally, a specific offence under Section 21 for example—or, simply, using bodyweight. of the Offences Against the Person Act 1861 makes it As noble Lords will have seen in the media over an offence to attempt to choke, suffocate or strangle the weekend of 9-10 January, the Government have any person, or to choke, suffocate or strangle a person now committed to creating a new offence of non- in an attempt to render that person insensible,unconscious fatal strangulation, for which the noble Baroness, or incapable of resistance. That offence also requires Lady Meacher,characteristically generously,was thanking there to be an intention by the perpetrator to commit Ministers. It will be important, however, to ensure that another indictable offence. any new offence is proportionate—I hear the question It is that range of offences that initially led the from the noble Baroness, Lady Burt, and I will come Government to believe that the law was sufficient in back to it—allows for more prosecutions to be brought covering the diverse circumstances and levels of seriousness and for convictions to be secured. There is a number that may be involved in non-fatal strangulation cases. of legal and technical issues to be addressed for this to As the noble Baroness, Lady Bennett of Manor Castle, be achieved that are not addressed by the amendments set out, one would not want to create a stand-alone offence as currently tabled. if it were not necessary to do so. However, we have The noble Lord, Lord Anderson of Ipswich, as has now been persuaded that this may not be the case. been said, rightly pointed to some of these issues on We are also aware of claims of evidential difficulties Second Reading, and we should not underestimate the in prosecuting any allegation of strangulation, particularly challenges of getting this right. I am grateful to the noble if there is no—or insufficient—evidence of injury, not Lord, Lord Marks, for passing on the later comments even reddening or minor bruising to the skin. Further, from the noble Lord, Lord Anderson. I can say, as the noble Lord, Lord Marks, pointed out in relation particularly given his reference to Professor David to the Section 21 offence, there is the additional Ormerod, that officials have already taken up the offer requirement for evidence that another indictable offence of meeting the learned professor. They have had initial had been intended, and that may create difficulties. discussions with him and will continue to have such Our concern had been that the same difficulties discussions, which I am sure will be extremely useful. would apply to any new offence, as there would still be As I am sure noble Lords will agree, it is important a requirement for proof beyond reasonable doubt that for any new offence to work in practice and not pose a serious offence was intended. We have also been difficulties for other parts of the law. In creating any concerned about the risks associated with creating a new offence of non-fatal strangulation, the Government new offence and that it could limit the circumstances will have to consider several factors. Let me set out covered and create additional evidential burdens when just four. First, the Government will have to consider compared with existing offences. whether the behaviour should be captured through a 2271 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2272 single offence or through two offences to capture I am conscious that I have not been able to go quite lower-level and more serious cases of non-fatal as far as my noble friend Lady Newlove and other strangulation. Secondly, we have to define the term Members of the Committee would like this evening. I “strangulation and suffocation,” and consider whether hope that she will bear with me and with the Government. any terminology about serious harm requires definition. I will keep her informed and updated on progress. Thirdly, although I heard what the noble Lord, Lord In light of what I have said this evening in the clearest Marks, said, we have to consider the issue of consent— terms that I can at this stage from the Dispatch Box, when consent becomes invalid is a notoriously thorny I hope that she is content to withdraw her amendment. legal issue. Fourthly, we have to consider the application of public policy exemptions, such as for some sports or medical treatments. Baroness Newlove (Con) [V]: My Lords, I thank everyone who has spoken in support of these amendments. It has been quite emotional listening, and I am very 8.15 pm grateful for the praise, but it goes to the great team behind The Government are therefore looking at these me. I also pay tribute to my noble friend Lady Bertin issues, which may take some time to resolve, but we for her contribution, which was quite personal. As intend to introduce a new offence at the earliest someone who has gone through the criminal justice opportunity.I have been pressed on timing by Members system and who knows what it feels like to speak from of the Committee—I will not list them all, for which I the heart, I thank her. apologise. The fact that I am a good listener—I hope— I was very grateful to the Minister for his winding-up does not mean that I do not remain a careful lawyer. speech and his answers to questions. I agree with the The noble Lord, Lord Blunkett, was kind enough to noble Lord, Lord Blunkett, that he seems to be a very say that I had taken to this House like a duck to water. good listener, and I am very grateful for that, but when I still feel that I am dipping my toe very gingerly into one listens to judgments, which I have done in the water which is sometimes freezing. However, I heard appeal court, one always needs to pay attention to the his point about the political realities most clearly. He last few paragraphs. I am a little disappointed because can be assured that I have that firmly in my mind. I heard words that seem to go far away from what the We will do our very best to achieve this outcome in amendment seeks to do in this important Domestic the Bill but, until we have made further progress with Abuse Bill. The Minister suggested that he had concerns the drafting, I cannot give an absolute commitment to that seven years’ imprisonment exceeded the maximum bringing forward a government amendment at the penalty for GBH. The amendment suggests seven years next stage. However, I give a firm commitment that we as a maximum as that is what the Secretary of State will do our very best. In response to the points that for Justice said would be appropriate. It is the maximum were put to me and summarised on behalf of many noble for the offence, given its coercion and control elements, Lords by the noble and right reverend Lord, Lord Harries and it may well be appropriate to have a higher maximum of Pentregarth—why not this Bill, if the majority of penalty than for grievous bodily harm. cases are of domestic abuse?—as I said, we will do our The amendment covers instances of putting a knee best to bring this amendment forward at the earliest on a person’s throat, as it covers applying pressure to a opportunity. As he said, in so far as the police are person’s throat. These examples demonstrate that we crying out for something clear, again we do not have to have thought very carefully about these amendments. be convinced of the importance of the point. I agree that we can work together and look at the right Turning to the questions put to me by the noble amendments, but I feel that we are now looking at Baroness, Lady Burt, I understand it to be an infallible non-fatal strangulation being placed further down the rule of this House that all questions are asked of the legislation programme in a police and sentencing Bill. Minister by the last speaker. She is quite right that I The commitment is a very grey area because it can go do not stand in the shoes of the noble Baroness, on for as long as a piece of string. I ask noble Lords to Lady Williams—no one can stand in her shoes—but bear with me as I am not a lawyer, so I do not speak in allow me to try answering the four questions. First, I that terminology. I come from passion and from going hope I have already made absolutely clear what we through the system and listening to victims and survivors mean by “commitment to consider”. Secondly, on what of this horrendous crime. we mean by “proportionate”, I refer the noble Baroness, I have listened to the Minister. He is a good listener Lady Burt, back to my comment on thinking about the and a careful lawyer; that is what the survivors of this appropriate penalty for the offence when read against horrendous, repugnant offence want him to be. I ask penalties for other offences. Thirdly, I hope I have the Government to place non-fatal strangulation in the dealt already with whether it would be limited to cases correct Bill—and the correct Bill is the Domestic Abuse of domestic abuse, and, fourthly,on what other legislation Bill. I do not want any more blood on my hands could be used, there are several putative legislative vehicles, knowing that non-fatal strangulation is going to have but I have already said that we will do our very best to to wait to go into another Bill. How will the Government introduce a new offence at the earliest opportunity. face families who have lost a loved one when strangulation Finally, in response to the point put to me by my has been a pattern in a relationship? At this stage I will noble friend Lord Lucas on guidance, I say that there withdraw the amendment but, if we can make more is always police guidance when a new offence is introduced. progress before the next stage, it would be welcome. I So far as public guidance is concerned, he raises an draw attention to the fact that I may test the opinion interesting point. We will consider how best to address of House on Report, because this matter has to sit in that. If he can leave that with me, we will give it further the Domestic Abuse Bill, for all the survivors listening thought. to this debate. I beg leave to withdraw the amendment. 2273 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2274

Amendment 137 withdrawn. this is a matter where justice really should say that there must be some sort of conformity in law available Amendment 138 not moved. in what I would say are very comparable circumstances. Clauses 66 to 68 agreed. It is important to remember that domestic abuse can lead to death. We have just heard a very powerful Lord Parkinson of Whitley Bay (Con): My Lords, it debate about strangulation, which really emphasised has been agreed that a short break of 15 minutes the ways in which those who have experienced non-fatal would be welcome. strangulation described how they felt they were going to die—that they could not breathe and somehow 8.23 pm were losing consciousness. Of course, that is what Sitting suspended. happens if the pressure is continued. We also heard the statistic that one in seven of the women killed after 8.38 pm a history of abuse have experienced strangulation. Let The Deputy Chairman of Committees (Baroness Garden me tell you that this one in seven statistic is based on of Frognal) (LD): My Lords, we now come to the the circumstances where women have already given group beginning with Amendment 139. I remind noble accounts to others—to their doctors, family members Lords that anyone wishing to speak after the Minister and lawyers—about experiences of strangulation. There should email the clerk during the debate, and anyone are many women who have not given those accounts wishing to press this or anything else in this group to a because of the shame still associated with domestic Division must make that clear in debate. violence. Some of us have acted in cases involving fatality; one can rely only on the fact that strangulation Amendment 139 is a very common feature in the patterns of domestic violence that lead to death. Moved by Baroness Kennedy of The Shaws Today, I will speak about a different set of 139: After Clause 68, insert the following new Clause— circumstances from those that have engaged the House “Reasonable force in domestic abuse cases up until now. One of the tragic outcomes of domestic (1) Section 76 of the Criminal Justice and Immigration violence and abuse can be that the person at the Act 2008 (reasonable force for purposes of self-defence receiving end of it ends up being the person in the etc.) is amended as follows. dock, having taken the life of their abuser in the end. (2) In subsection (5A) after “In a householder case” insert This happens rarely, unlike the other way around, “or a domestic abuse case”. where two women a week are murdered in this country (3) In subsection (6) after “In a case other than a by a spouse or partner. The statistics show that the householder case” insert “or a domestic abuse case”. number of women killing abusers is very small. (4) After subsection (8F) insert— “(8G) For the purposes of this section “a domestic I can draw from my experience—it may be that my abuse case” is a case where— noble friend Lady Mallalieu has the same experience—as (a) the defence concerned is the common law defence a criminal lawyer and a Queen’s Counsel for 30 years of self-defence, this year: the women I represented in homicide cases (b) D is, or has been, a victim of domestic abuse, and have invariably had a background of abuse, and one of the patterns or things that they describe in the histories (c) the force concerned is force used by D against the person who has perpetrated the abusive behaviour that they give is fearing for their life on occasions. The referred to in paragraph (b). women who end up killing a partner who has abused (8H) Subsection (8G)(b) will only be established if the them have almost invariably felt that they were going behaviour concerned is, or is part of, conduct which to die on many of the occasions when they were constitutes domestic abuse as defined in sections 1 assaulted previously. and 2 of the Domestic Abuse Act 2021, including but not limited to conduct which constitutes the offence It is important to remember that, when an accused of controlling or coercive behaviour in an intimate person ends up in the dock, they can be wrongly or family relationship as defined in section 76 of the convicted because of the law’s inadequacy—remember Serious Crime Act 2015 (controlling or coercive Sally Challen, a case that we have spoken about before behaviour in an intimate or family relationship).” in this House. This was a case in point where gaps in (5) In subsection (9) after “householder cases” insert “and the law had failed a woman because she was convicted domestic abuse cases”.” initially of murdering her husband before coercive Member’s explanatory statement control, which she had suffered for years, was understood This Clause seeks to clarify the degree of force which is properly by the courts. reasonable under the common law of self-defence where the defendant is a survivor of domestic abuse alleged to have used In a high percentage of the cases that I have dealt force against their abuser. with where women have killed a partner, pleading self-defence should have been available to the accused—the Baroness Kennedy of The Shaws (Lab) [V]: My woman—but she has ended up seeking recourse in the Lords, like others, I want to express my gratitude to fact that, very often, because of long-term abuse, women my friend, the noble Lord, Lord Wolfson, for his end up suffering from post-traumatic stress disorder generosity in giving time to discuss my amendments of some kind or another, or depressive illness. Those with me and those supporting me in seeking reform in are the tolls that domestic abuse takes on victims. It is a place where it is needed. I am grateful that he heard one of the great scandals of our system that we do not me and listened. I do not know what the response will often think about the impact of things relating to be, but I ask him to listen again very carefully, because women and domestic abuse until pretty late in the day. 2275 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2276

A great deal of thought has gone into the amendment with you, or if you take a knife from the kitchen and that I am presenting to the Committee today. It looks run them through but it turns out that the intruder at self-defence and the objective test of reasonableness had no weapon on them and that no one ever threatened that is applied in self-defence, and I shall explain in a you physically but it was just the fact that they were minute what that means. there, that should allow the reasonableness test to be lowered. 8.45 pm What I am saying to the House is this. Think of the Some noble Lords will remember that a number of situation that has been described to the Committee years ago there were debates in this House about the over the last couple of hours in relation to strangulation, case of a man called Tony Martin, who was convicted which is so often part of the history of women who of murder. He had shot an intruder at his smallholding. fear for their lives because they know that the level of Some young men used to get over the wall and pinch violence being used against them is escalating and a things from his yard. I have no doubt that it drove him point is coming where they will run to the kitchen to his wits’ end, and eventually, on one occasion, he drawer and get a knife. That seems disproportionate took out his shotgun and shouted at them. As they but, in the context of what has gone before and the scrambled back over the wall with their backs to him, fear that they have previously experienced, it is not. he shot one of them in the back and the young man I am asking that there should basically be a read-across died. and that the same test that is applied in the Tony Martin He was convicted of murder because the test for scenario, where the householder is defending their safe self-defence is that the response to a threat has to be space, should apply to a person who is protecting their proportionate. It was argued by the Crown in the case place of sanctity—their home, their private relationship, of Martin, at first instance in his trial, that he had their intimate relationship with their partner—which acted disproportionately in taking a firearm to a couple is being abused in such a way that it leads them to a of lads who were just clambering over his wall to steal. situation where they fear for their own life and therefore That was infuriating, anger-making and threatening in might not be able to measure appropriately the threat itself, but his use of force was excessive. at that time. What may seem disproportionate in other Eventually, the case went to the Court of Appeal, circumstances is not disproportionate in the circumstances but there was a great deal of outrage in the press over that we are dealing with in that case. In the family the fact that a man who was defending his property—a home, for someone who has been under threat and place where he should feel safe—ended up being convicted experienced the kind of control that the Committee of murder after his life had been made wretched by has heard described so potently in this House, the those who were stealing from him. presumptively safe space of their intimate relationship The case gave rise to great public debate, which should give them the same margin of appreciation centred on the question of what you do when an that operates in the householder situation. intruder invades your place of safety—your home—and I hope the House will see that, although this affects on the special threat that that means to you as a very few cases and the numbers of women are small—over householder, a property owner or someone in your the long period of my being involved in serious murder own dwelling. Tony Martin’s appeal was dealt with by trials, I would say that over 30 years I have dealt with way of manslaughter, because his mental state was maybe 10 or 12 women who have killed abusive partners examined by psychiatrists, who decided that at that —self-defence is often not available. It does not work time he was suffering from mental illness. for those women because they are seen as having The point at issue became a matter of great political responded in a way that was more than should have debate and the coalition Government, coming into been the situation, because their husband did not have office, decided to change the law. They decided to a weapon in his hand. It was the way that they had create a sort of Tony Martin defence, which was that a been abused and treated previously that added to the householder or property owner should get a substantial sense of their life being threatened. I am asking the margin of appreciation as to what is reasonable self- House to look at that, and I am asking the Government defence. The idea was that it was different. It was not to do that read-across. It is the old-fashioned saying, like someone in a chip shop who gets into an argument “What is good for the gander is good for the goose.” with a person who takes out a knife and stabs them. Women standing trial for killing an abusive partner That is totally disproportionate. It is not proper self- face difficulties in invoking self-defence. defence, and the reasonableness test would say that it This amendment is supported by the domestic abuse was not reasonable. Criminal lawyers in this House commissioner, who is in situ at the moment, the Victims’ will be able to give many an example of people behaving Commissioner, women’s NGOs and, it goes without disproportionately. If somebody stands on your toe, saying, the many organisations that have ever dealt you are not entitled to knock them out. It is expected with a case where a woman has killed after years of that there should be proportionate behaviour in response abuse. That is rare, yes, thank God, but we have to to a threat or violence. make sure that justice is available to those women too. I want us to think about a read-across. What do I I beg to move. mean by that? I mean that it is quite wrong that that is available to a householder. I have no objection to the Baroness Hamwee (LD) [V]: My Lords, I do not margin on reasonableness being lowered if somebody know whether the noble Baroness, Lady Kennedy, was is protecting themselves in their house. If you wake in intending not to speak to her next amendment, which the night, hear someone rootling around downstairs is grouped with this one, but perhaps I will, though it and run downstairs taking a cricket bat or iron bar will not be as good a speech as she would have made. 2277 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2278

[BARONESS HAMWEE] The Modern Slavery Act defence was in the This is another group of amendments that I would say independent review of the Act, whose findings were seeks to apply up-to-date thinking to bring the law up accepted by the Government as striking the right to date. I am pleased to have been able to add my name balance between protecting victims and, in that case, to the noble Baroness’s amendments because I always preventing opportunistic misuse. There was careful want to be on the same side as she is; I think her consideration of the reported difficulties in disproving middle name must be “Indefatigable”. the defence to the criminal standard, but the review panel was satisfied that the jury system which applied Parliamentarians learn from experts by experience. was appropriate. The Government said they would I think we have used that phrase already today. That keep this under review, as they should. does not mean being uncritical or bringing a hearts- and-flowers sentimental approach to things but being 9 pm open to really listening to experiences. We are lucky to The review highlighted in the case of children, have in this House experts with another sort of although I think this goes wider, the importance of experience—the lived experience of applying professional understanding indicators of slavery—in this case indicators expertise in acting for clients—so they have a well-informed of abuse—and of training and guidance for judges perspective.Clearly,the Minister who will be replying—he and magistrates, as well as for defence lawyers, another is not being given much time off today—to yet another matter we have debated today. It is just the same for group of amendments has been applying his own domestic abuse. In technical terms, this statutory defence expertise as well as having his brief. It has been very has to be raised, and should be raised at the earliest refreshing to listen to him. opportunity. That requires careful understanding and Section 76 of the Criminal Justice and Immigration application of the defence—not something that can be Act 2008, which would be amended by Amendment 139 left to come out in the wash of a case, as it were. is—it says so in terms—intended to clarify the operation Both these issues are about perpetrators really being of the common law defences of self-defence and defence victims. I am delighted to support them. of property. Those two were very closely linked in the minds of the public in the reaction to reports of The Deputy Chairman of Committees Englishman Tony Martin defending his castle. This (Baroness Watkins of Tavistock) (CB): The noble Baroness, brought about the householder defence but it is, in Lady Jones, has withdrawn, so I call the right reverend fact, just about self-defence, and so is this amendment, Prelate the Bishop of Gloucester. although one might substitute the notion of home as a haven rather than as a castle, as it was referred to in The Lord Bishop of Gloucester [V]: My Lords, I will the Martin case. The amendment uses Section 76 to speak to Amendments 139 and 140, to which I have address whether the degree of force is reasonable in added my name. I draw attention to my interests set the circumstances but—or maybe “and”, as in the out in the register. It is an immense privilege to support householder case—does not allow force which is “grossly the noble Baroness, Lady Kennedy; I am grateful for disproportionate” in the circumstances as the person her immense wisdom, knowledge and experience. I am using the force believes them to be. This is why this is also grateful to the noble Baroness, Lady Hamwee, for so much a matter of bringing the law into line with her excellent and candid laying out of the issues. It is a up-to-date thinking about domestic abuse, in particular privilege to follow her. coercive and controlling behaviour. In my role as Anglican bishop for women’s prisons and my recent appointment as Anglican bishop for the We have already debated, and will go on to debate whole prison estate in England and Wales, I have in other amendments, the impact of such abuse on the made prison visits and spoken with prisoners, volunteers whole person. It is a traumatic response that goes far and staff, including governors and chaplains.As president deeper than a black eye “because I walked into a door, of the Nelson Trust, I have heard first-hand the positive silly me”. I am not going to repeat the amendments and impact of trauma-informed practice in its excellent arguments that we have already heard today, because work with women serving their sentences in the noble Lords will hear them in the context of the days community and women leaving prison. of debate—we have had several days of debate—on this issue. My relative brevity on this amendment does Over the past few years, I have spoken with charities, not mean that I support it any less strongly. organisations and community workers. In all those conversations, common themes emerge. One is the I turn to Amendments 140 and 145. Amendment 145 so-called revolving door of short custodial sentences, is very long but is, if you like, consequential on leading to catastrophic consequences for a woman Amendment 140. This is modelled on the statutory and her family and often exacerbating a downward defence in the Modern Slavery Act, which recognises spiral into more serious offences and an inability to that a perpetrator may actually be a victim of modern secure employment. A second theme is the number of slavery. In this amendment, the compulsion to commit women coming into contact with the criminal justice offences is attributable to being a victim of domestic system who have experienced domestic abuse and previous abuse and having no reasonable alternative.The provisions trauma, and how this becomes a driver for their are adjusted for those under 18. Similarly,this amendment offending—in some circumstances, defending themselves uses up-to-date thinking about what drives a woman—it against their abuser, as we have heard. is usually a woman—to offend. I cannot read my Women become trapped in a vicious cycle of writing. I have written “significant”—I hope I am not victimisation and criminal activity. Their situation is leaving out a significant point. often worsened by poverty, substance dependency or 2279 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2280 poor mental health; almost 60% of women supervised noble Baroness, Lady Hamwee, and the right reverend in the community or in custody who have an assessment Prelate the Bishop of Gloucester for speaking so strongly have experienced domestic abuse. The true figure is in support of it. probably much higher. At Second Reading and in Committee, we have heard The Nelson Trust recently shared with me a painful powerful speeches about dreadful personal experiences. example of this complex issue and how important it is They are stark reminders of the horrific impact that to have a trauma-based approach. During the first domestic abuse has not just on the individual, but, lockdown, the Nelson Trust was called on a point-of-arrest through the ripple effect, into the family across the referral scheme; if a woman is arrested and identified generations and then on into the wider community.The as vulnerable, she can be referred to organisations noble Baroness, Lady Kennedy, has rightly highlighted such as the Nelson Trust for support. A woman had the fact that domestic abuse can lead to desperate events been arrested as a perpetrator of domestic abuse and where victims who were seeking to defend themselves was very distressed. At the women’s centre, they found end up in the dock, having been accused of committing she was covered in bruises; she had experienced horrific a crime. sexual and physical violence during lockdown. She Research by the Ministry of Justice suggests that many had taken to alcohol to cope with the abuse, and then prisoners have experienced or witnessed domestic abuse retaliated against her abuser and ended up in custody. as children, and that these prisoners are more likely to In this case, the Nelson Trust was able to help the be reconvicted within one year of release. The 2019 report woman access a refuge and enabled her to leave her of the Prison Reform Trust, There’s a Reason We’re in abusive partner. Trouble, cites domestic abuse as a driver of women’s Another story I heard was of a woman serving a offending. It sets out that 57% of women in prison report sentence for murder after retaliating against her abusive having been victims of domestic violence. More than partner who had assaulted her for many years, including half, at 53%, report having experienced emotional, physical when she was pregnant with their child. Recently, the or sexual abuse as a child, compared with 27% of men. Nelson Trust advocated for a vulnerable woman who I can well remember visiting Holloway prison and had retaliated against her partner after years of talking to some of the women about their experiences. psychological abuse. She was acquitted, but many like The report goes on to highlight the fact that women her are not. often encounter a culture of disbelief in the criminal These amendments provide an opportunity to extend justice system about the violence and exploitation to much better legal protection to the victims of domestic which they have been exposed. Alternatively, they may abuse whose experiences lead them to offend. At the not be able to reveal what they have been through, and moment, there is very little legal protection within the many women feel that they cannot support criminal system to allow those victims to be diverted away from proceedings against their abuser. As one woman the criminal justice system to vital support. There is commented in a discussion, “You’re too scared to much overlap in the criminal justice system between charge him because you know you’ll get a worse time the victims of crime and those who are the perpetrators. when he comes out.” All this means that women can Last year, a report by the All-Party Parliamentary become trapped in a vicious cycle of victimisation and Group on Women in the Penal System, of which I am criminal activity. Their situation is often worsened by an officer, uncovered cases of women contacting the poverty, substance dependency or poor mental health. police to report domestic incidents, only to end up My noble friend the Minister argued at Second being arrested themselves. The Howard League for Reading that a number of defences are already Penal Reform asked one police force to analyse its potentially available in law to those who commit offences data on arrests of women and girls over a two-year in circumstances connected with their involvement in period. It turned out that almost three-quarters of the an abusive relationship. I hope that this debate will women who had been arrested had previously come to make the Minister pause and think again, because the the attention of the police as victims of violence or present situation is very unclear. In the meantime, we sexual violence. More than half of them had been victims are told that it is being monitored. Can he advise the of domestic abuse. Obviously, much more needs to be Committee of when an assessment was last made, and done with police forces and diversion work, as well as will he make the report of the results available in the changing the law. Library of the House? I am not a lawyer, but I am a passionate supporter of trauma-informed interventions and doing all we Lord Bradley (Lab) [V]: My Lords, declaring my can to recognise the root causes and drivers of criminal interest in the register as a trustee of the Prison Reform behaviour. As a Christian and as a Lord Spiritual, I Trust, I will make a brief contribution to wholeheartedly am committed to a legal framework that emphasises support Amendments 139 and 140, proposed my noble restorative and reparative justice. I wholeheartedly friend Lady Kennedy and other noble Lords. She support these amendments and I look forward to introduced them expertly and I will not attempt to hearing the rest of the debate. replicate any of that excellent material. As the Committee heard, the amendments would provide essential new 9.07 pm protection for survivors involved in alleged offending Baroness Hodgson of Abinger (Con) (V): It is a which results from their experience of domestic abuse. privilege to follow the right reverend Prelate the Bishop Members of this House will be aware, as I am from of Gloucester. I shall speak to Amendment 140 and I my 2009 report on mental health, learning disabilities congratulate the noble Baroness, Lady Kennedy, on and the criminal justice system, of the particularly introducing it so ably and eloquently. I also thank the high prevalence of mental health need among women 2281 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2282

[LORD BRADLEY] I clearly support these amendments to give women in prison. It is getting worse. Ministry of Justice safety the protection they deserve, and I hope the Government in custody statistics tell us that the annual rate of will too. self-harm incidents for women in prison nearly doubled between 2012 and 2019, from 1,558 to 3,130 incidents Lord Paddick (LD) [V]: My Lords, as the noble per 1,000 women. This compares to an increase among Baroness, Lady Kennedy of the Shaws, has so clearly male prisoners from 201 self-harm incidents per 1,000 explained—and I pay respect to her enormous experience men in 2012 to 650 in 2019. As we know and the over decades in this area—Section 76 of the Criminal Committee has heard tonight, the majority of these Justice and Immigration Act 2008 raises the threshold women are likely to be victims of domestic abuse and from disproportionate to grossly disproportionate before other forms of violence against women. the force used by a householder for the purpose of Further, women with a learning disability are more self-defence can be considered unreasonable. likely than those without to experience domestic abuse. The fear generated by being attacked in your own Too little is still known about women with learning home—the visceral reaction, the instinct to defend disabilities in prison, but they are likely to be far more yourself and your property in such circumstances—is over-represented compared to those in the community. considered so strong that using disproportionate force A recent research report, published in 2018 by the to defend yourself is considered to be reasonable in Prison Reform Trust and KeyRing, entitled Out of the the domestic setting. While it can be argued that there Shadows found that, of 24 women with learning should be no distinction and that reasonable force in disabilities who were in contact with or on the edge of the circumstances should be enough, Parliament decided the criminal justice system, most were driven into that being attacked in your own home sets apart this offending as a result of abuse by men. For example, kind of self-defence from other situations. The Minister this included one woman who had been repeatedly will not be surprised to hear me use the same expression drugged and abused by her partner before retaliating as the noble Baroness, Lady Kennedy: what is sauce and finding herself sentenced to prison. For some of for the goose is sauce for the gander. What was seen, at the women, their learning disabilities may have been least by the tabloid newspapers, as the “Englishman’s the result of traumatic brain injury, which is not home is his castle” provision in Section 76 of the 2008 always assessed and identified successfully. Act should equally apply to what will in most cases be The Government have acknowledged the strong a woman defending herself against domestic abuse. links which often exist between women’s offending I have personally been in both these scenarios. I and their experience of abuse. However, I do not feel have cowered behind my front door as a violent stranger confident that the strong links are properly taken into tried to kick down the door of my flat; thankfully, the account in criminal proceedings. The evidence presented police arrived before the door gave way. I have also by the Centre for Women’s Justice, the Prison Reform cowered as my violent partner kicked and punched me. Trust and others suggests that practice on the ground The fear caused by not feeling safe in your home is is, at best, inconsistent and that many women do not truly terrifying, especially when you are being physically even feel confident to disclose the abuse until they attacked. The fear I experienced was similar in both cases, reach the relative safety of prison after they have been but the latter was far more frightening. Being attacked convicted. This is surely not good enough. It is certainly by a random stranger does not hurt as much as being not clear to me why these survivors should not be attacked by someone you have allowed yourself to be entitled to the same level of protection as, for example, vulnerable with, and who has subjected you to coercive trafficking victims who are forced to offend as part of and controlling behaviour over a number of years. their exploitation, or householders facing an intruder Throughout the passage of the Bill, I have been in their home, as in the Tony Martin case, referred to keen to ensure that male victims and those in same-sex so eloquently by my noble friend Lady Kennedy. relationships are not forgotten. Even here, we are We have heard from the Government that they talking about someone who is physically weaker being want to strike the right balance in dealing with these attacked in their own home by a stronger person. In women as suspects and defendants. I therefore urge most cases, but not exclusively, this will be male violence the Government to afford them the legal protection against women. If she is to defend herself against a that they deserve from our justice system. It may well much stronger man, her options are limited and she be a complex task, but it is surely not beyond us or our may have to resort to using a weapon—for example, as justice system. the only way effectively to defend herself, or simply because of the instinctive reaction to grab whatever is 9.15 pm available, such as a kitchen knife. However,if the Government are not minded to accept It is not difficult to envisage how such a use the amendments of the noble Baroness, Lady Kennedy— of force might be considered disproportionate but again, I urge them to do so—will the Minister explain understandable, particularly if you fear for your life precisely what steps are being taken to monitor the use in circumstances such as we heard described when of existing defences and review the need for statutory considering the previous group of amendments, and reform? Also, what further steps will be taken to ensure which the noble Baroness, Lady Kennedy, explained. proper consideration of the context of abuse which I It might be considered disproportionate, but not grossly and other Members of the House have outlined tonight, disproportionate. Can the Minister explain why this and whether it is in the public interest to pursue a amendment should not be accepted, in the light of the prosecution in each and every case involving a suspect higher standard of acceptable force available to a who may also be a survivor? householder under attack from a burglar? 2283 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2284

Awareness has recently grown of how prolonged We have heard excellent speeches in this short and sustained abuse can turn a victim into an assailant. debate from all noble Lords, particularly from the As my noble friend Lady Hamwee has explained, right reverend Prelate the Bishop of Gloucester. I Amendment 139 and the subsequent amendment would endorse all the comments of noble Lords. My noble bring the law into line with these recent developments. friend Lord Bradley, in particular, made a compelling As the right reverend Prelate the Bishop of Gloucester speech. He raised the issue of mental health, its effect has explained, a trauma-based approach needs to be on women prisoners and the need for proper context adopted. There clearly needs to be a change of culture to be taken into account when deciding to prosecute in the criminal justice system in this respect, as well as cases. I look forward to the response from the noble a change in the law. Lord, Lord Wolfson. If he cannot accept these The mental health impact on women prisoners has amendments, I hope he will tell the Committee that he been clearly set out by the noble Lord, Lord Bradley. understands the issue and will go away and reflect on As my noble friend Lady Hamwee has explained, it, and maybe come back on Report. Amendment 140 is almost identical to Section 45 of the Modern Slavery Act 2015. In the same way that I Lord Wolfson of Tredegar (Con): My Lords, I first believe the burden of proof lies on the Minister to offer my sincere thanks and appreciation to the noble show why Section 76 of the Criminal Justice and Baroness, Lady Kennedy of The Shaws, for outlining Immigration Act 2008 should not apply to victims of the case for these amendments. In response to her domestic abuse in relation to Amendment 139, I ask early comments, I can assure her that I have indeed the Minister why Amendment 140 should not apply to listened to her and benefited from discussing these victims of domestic abuse when a very similar statutory matters with her, both outside the Chamber in advance defence is available to victims of slavery and trafficking. of today’s proceedings and in listening to her most The Government must come up with very strong diligently this evening. She has considerable experience counter-arguments if these amendments are not to be in this area of the law. accepted. In effect, these amendments seek to create two new defences: first, a defence of reasonable use of force by victims of domestic abuse who, in self-defence, react Lord Kennedy of Southwark (Lab Co-op): My Lords, to violence from an abusive partner; and, secondly, a we on these Benches fully support Amendments 139, new statutory defence for victims of domestic abuse 140 and 145, in the names of my noble friend who commit a criminal offence. While in tonight’s Lady Kennedy of The Shaws and others. The issues debate the noble Baroness, Lady Kennedy, focused on addressed in these amendments have been raised in the the first of those defences, I have had the benefit of other place by my honourable friend the Member for discussing both issues with her. I have read briefings Birmingham, Yardley, Jess Phillips, and others during on both and therefore hope that my reply will meet the the Bill’s consideration there. points she has made inside and outside the Chamber. The amendments, as noble Lords have heard, are None the less, I will take each amendment in turn, modelled on existing law and should not cause the because they raise different issues. Government any trouble whatsoever; I look forward Amendment 139 is on the reasonable use of force. to the Minister’sresponse.My noble friend Lady Kennedy The Government are aware that what is being sought explained the problems women face when they have here is an extension to the current provisions to enable killed a partner, having been the victim of abuse for victims of domestic abuse to have the same level of years and years and then find themselves in the dock. protection as those acting in response to an intruder in The amendments seek to address that and reflect the the home. I am aware that the proposed new clause realities of domestic abuse. stems from a campaign by the Prison Reform Trust Everybody has been very complimentary about the seeking to clarify the degree of force that is reasonable Bill—it is a very good Bill, long overdue and we wish under the common lawof self-defence where the defendant it success—but to become really effective legislation, is a survivor of domestic abuse. It has been suggested it must incorporate these amendments or government by the Prison Reform Trust that the common-law amendments with the same intent. It is reasonable defences are unsuitable in the context of domestic to afford the victims of domestic abuse who act in abuse. self-defence, often in their own homes, reasonable In that context, as the noble Baronesses, Lady Kennedy protection. They are compelled to defend themselves, and Lady Hamwee, explained, the amendment seeks having suffered years of abuse. As my noble friend to build on existing provisions in Section 76 of the Lady Kennedy reminded us—we have heard it many Criminal Justice and Immigration Act 2008, with the times before—on average, two women a week are intention that, as with householders, the degree of killed by their partner or former partner. That is an force used by the defendant would have to be “grossly horrific figure. disproportionate”rather than simply “disproportionate” Amendment 139 would provide domestic abuse by reference to the circumstances that the victim believed survivors with the same legal protection as householders them to be, and to take into account other factors set have in cases of self-defence. Members have referred out within Section 76. It has been suggested that this to such cases. Amendments 140 and 145 are modelled would fill a gap in the law. on Section 45 of the Modern Slavery Act 2015 and Let me start by saying what I hope does not need to would give victims of abuse a statutory defence where be said, given the terms of the Bill and what has been they have been compelled to offend as a result of said in Committee on this and previous occasions. The experiences of domestic abuse. Government recognise the harm suffered by victims of 2285 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2286

[LORD WOLFSON OF TREDEGAR] Even if such a change were to be made to the law, it domestic abuse. Several defences are potentially available would need to be accompanied by guidance and training in law to those who commit offences in circumstances for the police, CPS, the probation service, defence connected with their involvement in an abusive lawyers and the judiciary in order to ensure that it was relationship, including the full defence of self-defence. applied as intended. Given this, it is not clear why such In addition, the broad definition of domestic abuse in additional improved or revised guidance and training the Bill should assist, I hope, with identifying and on the existing law, in so far as it relates to domestic clarifying the wide-ranging and pernicious nature of abuse victims, would not be a sufficient additional domestic abuse, and alerting all those involved in the safeguard in itself, without unnecessarily further criminal justice system to it. complicating the criminal law in areas where we feel it It is worth mentioning at this point that the courts—by is already robust. which I mean the judges—have developed the common- Therefore, although the Government are sympathetic law defences and their relationship to domestic abuse. to the aim behind this amendment, we are not persuaded We should perhaps pay tribute to the judges for having that there is a gap in the law which needs to be filled. recognised the nature and impact of coercive and Nor does it seem that the situation in which a householder controlling behaviour in the application of the criminal reacts instinctively to an intruder in their home is directly law and in sentencing, as well as in family and civil law. comparable—or, as the noble Baroness, Lady Kennedy, It is sometimes the case that the courts are quicker, put it, there would be a read-across—with the situation more nuanced and more flexible in developing the of a victim who has experienced a pattern of violent common law than Parliament can ever be in introducing, and abusive behaviour, including behaviour constituting by their very nature, more rigid and narrowly drawn an offence under Section 67 of the Serious Crime statutory provisions. For fans of the common law, of Act 2015. which club I am an enthusiastic member, that is an important point to bear in mind. My noble friend Lady Hodgson of Abinger and the noble Lord, Lord Bradley, asked about a review. We There is also a need to balance recognition of the regularly reassess the effectiveness of any law and abuse suffered and its impact on the victim with the associated practices in protecting victims. We have need to ensure that, wherever possible, people do not previously given a commitment to do so in this regard, resort to criminal behaviour. The Government believe and we continue to review it. that the balance is currently reflected in the law, which continues to evolve and which aims to strike the right I turn to Amendments 140 and 145, which seek to balance between those factors. provide a new statutory defence for victims of domestic abuse who commit a criminal offence. Again, I am 9.30 pm sure I speak for the entire Committee when I say that domestic abuse is an abhorrent act which can inflict In a moving and very personal speech, the noble Lord, significant harm on victims, their children and other Lord Paddick, asked what the difference was between family members. That is why we have brought this Bill Section 76 and the proposed new clause in the amendment. forward, which not only targets domestic abuse but I will deal with that head-on. The provisions in Section 76 raises awareness and understanding of its horrific and of the 2008 Act largely cover a specific circumstance destructive nature. where an intruder—in most cases unknown to the defendant—puts the householder in a position where In that regard, I listened carefully to the arresting they are reacting on instinct or in circumstances which statistics put before us by the right reverend Prelate subject them to intense stress.By comparison, in domestic the Bishop of Gloucester, together with two moving abuse cases, the response may well not be sudden and examples of damage done by domestic abuse. Of instinctive, but may follow many years of physical or course I take on board the point made by my noble emotional abuse. The current law on self-defence and friend Lady Hodgson of Abinger as to the long-lasting loss of control allows this to be taken into account. So effects of domestic abuse and, as the noble Lord, it remains appropriate for this law to be applied, rather Lord Bradley, pointed out, the interrelationship that than for it to be extended to a wider set of circumstances. you often find between victims of domestic abuse and I also note that the amendment does not appear to learning difficulties. deal with the defendant’s options to retreat. Section 76 The Bill seeks to raise the profile of domestic abuse makes it clear that there is no duty to retreat, but this in all its forms, and the wide definition should therefore option is still a factor to be taken into account. Again, help to clarify that wide-ranging nature for all involved I note that the circumstances of domestic abuse and a in the criminal justice system. The new clause specifically household invasion case may not be comparable,although proposed by this amendment would apply to victims I am well aware that of course there can be circumstances of domestic abuse who have been coerced or forced to in which—on the particular facts of the case—an commit a crime because of fear or violence directed by abused woman may not have options to retreat. a partner or family member. The defence would apply We have been advised that there are difficulties with equally to cases where the victim commits a crime as a establishing the common-law defence of self-defence result of the domestic abuse that they have endured, in cases of reactive violence by a survivor of domestic which may have been carried out over a period of several abuse against their abusive partner or former partner. years. The proposed new clause originates from a However,according to the Prison Reform Trust briefing, Prison Reform Trust campaign. As the noble Baroness, the rationale for Amendment 139 appears to be that, Lady Hamwee, explained, it is modelled on Section 45 “a jury may well conclude that the response was disproportionate of the Modern Slavery Act 2015—albeit with some without taking account of the long history of abuse.” differences, which I will come to. 2287 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2288

Section 45 provides a statutory defence for victims and therefore what could trigger this defence, is so of slavery and trafficking who are subjected to exploitation. wide-ranging that it could provide a full defence to As I just said, the amendment is modelled on that, but any criminal act, save for those offences specifically it has some important differences, including the listed. replacement of the reasonable person test used in Additionally, a full defence for a defendant who Section 45(1)(d) and (4)(c)—the so-called Bowen test— had been subject to domestic abuse would create difficulties with a new form of objective test. This test has been for other defendants who had been subject to other replaced for a number of reasons, as I understand it. It forms of harm, such as racial harassment or sexual has been suggested that the Bowen test is problematic harassment from strangers. We are concerned that any for defendants who seek to rely on duress, where they new statutory defence would not only overlap with have felt compelled to commit a criminal offence existing defences and prosecution policies but undoubtedly because of the domestic abuse they have experienced. cause confusion as to which law or policy would be It has been said that, for victims of domestic abuse applicable. Uncertainty within the criminal law is who commit a crime to succeed in establishing a something which we really must avoid. defence of duress, they would need to provide evidence We are additionally concerned by anecdotal evidence of battered woman syndrome and learned helplessness. given by law enforcement partners and others that the Additionally, it has been stated that medical evidence Section 45 defence is being misused. It has been reported would need to be produced, which is often not practicable that some offenders falsely claim that they are the in cases where the crime committed may be seen as victims of modern slavery to escape justice. We are low-level offending, such as those tried in a magistrates’ working with criminal justice partners to assess how court. that defence is being used in practice. The amendment proposes a new objective test that Several defences are potentially available in law to would enable a defendant’s experience of domestic abuse those who commit offences in circumstances connected to be taken into account without the need for medical with their involvement in an abusive relationship or evidence, although that could be adduced. The “relevant situation. They include the full defences of duress and characteristics” definition, set out in the 2015 Act, self-defence, as well as the partial defences of loss of would be replaced with a reference to “experience of control or diminished responsibility in homicide cases, domestic abuse”. The noble Lord, Lord Paddick, asked and they are available to a victim of domestic abuse. what the difference was and why we did not read over Additionally, where a person accused of a criminal from one to the other. The answer is that we are not offence has been subjected to domestic abuse, this will persuaded that the model on which this amendment is be considered throughout the criminal justice system: based—Section 45—is right or effective in this context. Of from the police investigation through to the CPS charging particular concern are the anomalies that the amendment decision, to defences under the existing law, and as a could create for other offences. For example, there is a mitigating factor in sentencing. In considering our range of serious offences to which the Section 45 defence response to these amendments, we have sought to does not apply now—generally serious sexual or violent make sure that we continue to strike the right balance offences, which are set out Schedule 4 to the 2015 Act. between all these factors. To conclude, the Government remain unpersuaded The proposed new schedule provided for in of the need to create a new defence of reasonable use Amendment 145 seeks to replicate the list of excepted of force or a new statutory defence for victims of offences in Schedule 4 to the 2015 Act. But pinpointing domestic abuse. A number of defences already exist the behaviour that caused the offence remains problematic. and, given that the courts are able to interpret and Even once we accept that the proposed statutory take account of such matters in their consideration of defence of compulsion to do an act is attributable to a a case before them, this enables the common law to person being a victim of domestic abuse—rather than develop quickly and more flexibly than any statutory being a victim of trafficking, slavery or other exploitation defence would. I fear that I will not have persuaded —the question then becomes: at what point in time, the noble Baroness, Lady Kennedy, that my position is and to what type or level of domestic abuse, should correct, but I hope I have persuaded her that I have any statutory defence be available? listened very carefully to the points she has made this evening and in prior discussions. In those circumstances, The Bill sets out a wide-ranging definition of domestic I invite her to withdraw her amendment. abuse, and it is right that that wide definition helps to inform people seeking to understand the nature of The Deputy Chairman of Committees domestic abuse and assisting in identifying the signs (Baroness Watkins of Tavistock) (CB): I have received that a person may be a victim of domestic abuse. requests to speak after the Minister from the noble However, when it comes to providing a defence to a Baroness, Lady Bennett of Manor Castle, the noble Lord, criminal charge—potentially a very serious one—it is Lord Paddick, and the noble Baroness, Lady Hamwee. not appropriate simply to say that there can be any I call the noble Baroness, Lady Bennett of Manor level of abuse, or that abuse can be defined in the Castle. widest possible sense. That is not the case with modern slavery. The defence there does not apply to the widest Baroness Bennett of Manor Castle (GP) [V]: My definition of exploitation of a person but applies to Lords, I thank the House for the opportunity to ask behaviour that meets an existing criminal offence this question, which applies to all these amendments threshold: a threshold for a reasonable person to but particularly to Amendment 139, to which my withstand behaviour directed against them. We are noble friend Lady Jones of Moulsecoomb is a signatory. apprehensive that what could amount to domestic abuse, She was unfortunately unable to take part in this debate. 2289 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2290

[BARONESS BENNETT OF MANOR CASTLE] the point that there is generally very little option to My noble friend would have referred to the fact retreat in the householder case. Again, that is an that the Covert Human Intelligence Sources (Criminal instance where you cannot simply read across to the Conduct) Bill allows blanket legal protections for domestic abuse case. I hope the noble Lord is content undercover police and informants. The forthcoming with those responses, but I am very happy if he wants overseas operations Bill creates similar new protections to take those points up with me hereafter so that we against prosecution for military personnel acting overseas. can discuss them. The Government have fought intensely for these protections against prosecution for the police and the Baroness Hamwee (LD) [V]: My Lords, I understand military; they have fought against many attempts in the points that the Minister has made about the common your Lordships’ House to reduce or check these law developing—that is inherent in it—but, like my protections. In that context, how would the Minister noble friend, I want to pursue the point about flexibility. explain—having granted such broad protections to If the courts were that flexible—I suppose this is a the police and military, even in cases of fundamental rhetorical question—would we be moving and speaking wrongdoing—why the Government should refuse what to these amendments? are comparatively far more limited legal defences for The proposed new clause in Amendment 140 is survivors of domestic abuse, particularly with such modelled on—but, I accept, does not completely repeat— well thought-out and well drafted amendments by the the provisions of Section 45 of the Modern Slavery noble Baroness, Lady Kennedy of The Shaws? Act, referring to “the person’s circumstances”. As far as I am aware, I have not received the briefing from the Lord Wolfson of Tredegar (Con): I am grateful to Prison Reform Trust, but does the Minister accept the noble Baroness, Lady Bennett of Manor Castle, that the remarks of the right reverend Prelate and the for that question. I do not wish to be thought flippant noble Lord, Lord Bradley, go very much to the point in any way, but the short answer is that the situations about a person’s circumstances? The Minister referred are different, and therefore you have different to concern about misuse. At Second Reading, I think I considerations and different legal results. However, if made the point that if there is misuse we should be she will permit me, given that I am not personally looking at the misuse, not at not applying a defence acquainted with that sort of detail—certainly of the which should be a good defence in general. overseas operations Bill—to respond to her this evening, Finally—again, I suppose this is rhetorical—with I will add to my reply in writing. regard to the balance, and we are for ever searching for the right balance, does the Minister agree that, given 9.45 pm the fast-developing understanding of domestic abuse Lord Paddick (LD) [V]: My Lords, I am very grateful and its impact, civil society will likely pretty quickly, in to the Minister. I have two questions which rather parallel, be developing its ideas about what is the right puzzle me. First, he talked at length about praising balance? judges for how they can quickly and flexibly adapt the Lord Wolfson of Tredegar (Con): I am grateful to common law of self-defence to new cases and how the noble Baroness, Lady Hamwee, for those various beneficial it is for it to be dealt with in that way, rather questions. On the issue of the person’s circumstances, than with rigid primary legislation. Can he therefore I hope I set that position out in my reply. Perhaps it is explain why Section 76 of the Criminal Justice and the sort of point I could set out to her in writing in a Immigration Act 2008 was thought necessary? couple of paragraphs, if she would not mind. Secondly, the Minister talked about the option to We are concerned when defences may be being retreat in domestic abuse cases. Referring to the two misused; I made it clear that there are some concerns scenarios that I spoke about from personal experience, with the victims of slavery defence in that context. On I certainly had the option to escape out of the flat—luckily the last point, which I think the noble Baroness accepted it was a ground-floor flat—when somebody was trying was somewhat rhetorical, she is certainly right that we to break the front door down in the burglar scenario, always seek a balance. The point she makes that the but when my abusive partner had me up against the law must keep up with the expectations of civil society kitchen wall, I had very limited options to retreat. I is a profound one; it is, indeed, one of the big advantages cannot see how the option to retreat is more valid in of the common law. I am sure, therefore, that the issues the burglar situation than it is in the domestic abuse raised by these amendments will continue to be discussed. situation. Perhaps the Minister can help me. The question before the Committee this evening is whether the legislature should provide for explicit Lord Wolfson of Tredegar (Con): I am grateful to statutory defences in these terms. For the reasons I the noble Lord, Lord Paddick, for those questions. have sought to set out, in my opinion, it should not. First, Section 76 of the Criminal Justice and Immigration Act dealt with a specific circumstance,whereby Parliament Baroness Kennedy of The Shaws (Lab) [V]: My considered that that instance ought to be reflected by Lords, I should tell the Committee that I turned way of a specific statutory defence. The question for a page too soon in my opening address on these this evening is whether there is a suitable read-across amendments. I did not have the chance to really lay into the matters we are discussing. For the reasons I out the second of the statutory defences I am promoting, sought to explain, I suggest that there is not. in Amendment 140. Secondly, as to the option to retreat, I hope I made I regret that I used the term “read-across,” because it clear that I was not saying that there is always an there are always lawyers who will use language literally. option to retreat in domestic abuse cases; I was making Of course, I did not mean it is an absolute read-across 2291 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2292 to talk about a householder as distinct from a victim The failure to make those links and to understand of abuse, but the gravamen is the same. The core of it this may be because one has not spent enough time is about somebody put in fear in the place they want to sitting in a cell with people who are coming up for feel safe: their home. I cannot think of any domestic trial. I can tell the Committee that that is the circumstance, homicide where I have represented a woman who has and if you can afford, because the Daily Mail demands killed her partner or ex-partner that did not happen it of you, to lower the standard of reasonableness and within a household—a place where she was hoping to be more flexible for a householder—as indeed you feel safe but did not, and where experience had taught should—then that kind of flexibility should be available her to feel fear and terror. to those who have been experiencing long-term abuse. I am afraid I have to say to the Minister that some I ask that the noble Lord look again at the double time, I will take him by the hand into a women’s prison standard that is operating here. It is partly, of course, and have him sit down and listen to the accounts of because Governments always want to play the law-and- women, by asking them to look him in the eye and tell order card and do not want to be seen to be soft on him their stories. They are so often there because of people who commit crime. But very many of the childhood abuse, having been brought up in abusive women who end up in prison did what they did households and with direct experience of partner abuse. because they were under the coercion and control of We could almost empty our prisons without them somebody else, and were absolutely in fear of that having women who are there because of their mental person. I really regret the response I have received health. They are not mentally ill for no reason; almost from my friend, the noble Lord. I ask him to take his invariably, it is because of the kind of abuse we have great lawyer’s skills and go back to the drawing board heard about in the debates on this Bill. again, because he is missing something very important I say this respectfully, but the Government are here, which is about justice for women. I beg leave to again falling into the trap of saying there are nice withdraw the amendment, with great regret, and I am victims and bad victims, or of saying: “We will change really disappointed in the ministerial response. the law for the good, conforming victims but not for the victims who somehow transgress”. These are the Amendment 139 withdrawn. victims who, in the end, defend themselves because they are so in terror for their lives, who are so in fear of a partner that they commit a crime—carrying the Amendment 140 not moved. drugs from A to B or hiding them in their sock drawer, for example. All I am saying is that there is a double standard in this debate: as soon as you move to that The Deputy Chairman of Committees (Lord McNicol which involves crime and a woman, or anybody who is of West Kilbride) (Lab): We now come to the group abused, is in the dock, then suddenly your compassion consisting of Amendment 141. I remind noble Lords for the issue of domestic abuse somehow dissipates. that anyone wishing to speak after the Minister should I am very concerned that there is not enough real email the clerk during the debate, and that anyone consideration of the toll of abuse: we are moving into wishing to press this amendment to a Division must the field where somebody ends up transgressing the make that clear in the debate. law but it is really because of what they are experiencing. If a psychiatrist were to speak to this Committee, they Amendment 141 would tell noble Lords that when somebody has experienced fear for their life—we have heard about it Moved by Lord Marks of Henley-on-Thames in relation to strangulation—and thought “I am going 141: After Clause 68, insert the following new Clause— to die at the hands of this person”, and then suddenly “Controlling or coercive behaviour by persons providing smells that level of fear again, in the air, in those psychotherapy or counselling services circumstances they might take a knife and defend themselves, or take a heavy weapon and hit somebody (1) A person (“A”) commits an offence if— fatally on the head. The test of “reasonableness” or (a) A is a person providing or purporting to provide psychotherapy or counselling services to another whether the force was “disproportionate” has to be person (“B”), read in the context. That is why I am saying that it (b) A repeatedly or continuously engages in behaviour would have to be “grossly disproportionate” for it not towards B that is controlling or coercive, to afford a defence of self-defence for somebody who has experienced long-term and serious abuse. (c) the behaviour has a serious effect on B, and (d) A knows or ought to know that the behaviour will What we are seeing here are the very double standards or may have a serious effect on B. that are so often experienced by victims of abuse and (2) A’s behaviour has a “serious effect” on B if— by women. It goes back to the nature of law and its patriarchal roots. It is about saying that, yes, women (a) it causes B to fear, on at least two occasions, that violence will be used against B, or who are abused deserve all our compassion but if they overstep the mark, they do not. (b) it causes B psychological harm which has a substantial adverse effect on B’s usual day-to-day Our prisons are full of women who have had these activities. experiences—indeed, I have acted for women who have (3) For the purposes of subsection (1)(d) A “ought to ended up killing a partner. They do not do it because know” that which a reasonable person in possession of they suddenly want to wreak vengeance; they do it in the same information would know. exactly the circumstances of the householder who (4) In proceedings for an offence under this section it is a feels in absolute terror for their life. defence for A to show that— 2293 Domestic Abuse Bill [LORDS] Domestic Abuse Bill 2294

(a) in engaging in the behaviour in question, A believed the clients projecting on to the therapist or counsellor that he or she was acting in B’s best interests, and feelings that they originally held towards a parent or (b) the behaviour was in all the circumstances reasonable. other important figure in the client’s early life. The (5) A is to be taken to have shown the facts mentioned in clients’ parents and other close family and friends are subsection (4) if— supplanted by the counsellor in the client’s affections (a) sufficient evidence of the facts is adduced to raise by a learned dependence on them. an issue with respect to them, and In our debate last March, I said that such clients are (b) the contrary is not proved beyond reasonable “brainwashed by unscrupulous and controlling individuals. These doubt. charlatans play on their clients’ suffering, deluding them into a (6) The defence in subsection (4) is not available to A in false belief in their treatment”—[Official Report, 2/3/20; col. 477.] relation to behaviour that causes B to fear that violence Everything that I have read and learned since that will be used against B. debate in relation to this issue and in preparing for this (7) A person guilty of an offence under this section is liable— debate has strengthened my concern not only that that (a) on conviction on indictment, to imprisonment for a description was fair but that I underestimated the term not exceeding five years, or a fine, or both; extent of the problem. (b) on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both.” These issues have been widely recorded in the press and I will not detail them now, but I will repeat a question posed in the Daily Telegraph not long ago: Lord Marks of Henley-on-Thames (LD) [V]: My “What made two seemingly happy young women from loving Lords, this amendment, in my name and the names of homes sever all contact with their families and friends, renounce my noble friend Lady Jolly and the noble and learned their inheritances and vanish into thin air?” Lord, Lord Garnier, addresses an extremely serious The journalist investigated how issue that affects far more lives than noble Lords “a self-styled ‘personal development coach’ digging for ‘forgotten’ might have expected. Psychotherapists and counsellors childhood memories opened a door to catastrophe.” are not in any way regulated by law. In opening a debate on this issue on 2 March last year, my noble The article went on to describe how a rogue counsellor friend Lady Jolly pointed out: had ruined two young lives in the way I have described, pointing out that there had been absolutely nothing “The terms ‘counsellor’ and ‘therapist’ are not protected. All of us could call ourselves such”. the courts could do about it, given that the clients were adults—although they were young. The law offers no She also pointed out that there is protection whatever for the victims of what is so … “no assurance of the level of training or competence nor clearly abuse by coercive control. The fact that such a redress system to access should something go wrong”.— counsellors often charge their clients substantial fees, [Official Report, 2/3/20; cols. 468-69.] as the rogue counsellor did in those cases, only serves We should all be clear that this amendment is not a to make the matter worse. criticism of the work undertaken by manystraightforward, honest and understanding therapists and counsellors Our amendment would introduce the following offence: up and down the country, who are dedicated to helping “Controlling or coercive behaviour by persons ... providing or their patients or clients address difficult issues in their purporting to provide psychotherapy or counselling services”. lifw and get through particularly troubling periods. The proposed offence is closely modelled on Section 76 Nothing I say is intended to disparage their commitment of the Serious Crime Act 2015, which covers “controlling or undermine their work. However, it is a tragic reality or coercive behaviour in an intimate or family that a combination of this lack of regulation and the relationship”. The definition of coercive and controlling cruel techniques of coercive control adopted by some behaviour in that Act is mirrored in this amendment, who offer so-called therapy and counselling services and the definition of the required relationship for the leads to many—mostly young—lives being, quite literally, Act is mirrored in Clauses 1 and 2. ruined. As the noble Lord, Lord Astor of Hever, who There is a pattern to these cases of abuse: charlatan would have liked to speak today but is unable to do so, therapists or counsellors secure clients—usually young said when we debated this issue last March: and always troubled people—and proceed, over a period, “Section 76 of the Serious Crime Act covers domestic abuse. to take over their life. Sadly, the typical case involves The Government accept that individuals can be coercively controlled, such so-called counsellors persuading their clients, and they have rightly made it illegal for a spouse, partner or quite without foundation in fact, that they have been parent to coercively control somebody with whom they have a dreadfully wronged or abused by their parents or relationship—that is an imprisonable offence. However, in the families during their childhood. They generally implant case of coercive control, the law does not apply equally to everyone. A person coercively controlling their daughter would be entirely false memories in those clients. As the clients breaking the law, but the same person coercively controlling come to believe, under an insidious form of persuasion, someone else’s daughter is not covered by the law. There does that these false memories represent reality, they are led appear to be a gap in the law, so will the Government look into to blame their parents and families for all that has this?”—[Official Report, 2/3/20; col. 472.] gone wrong in their life and all that troubles them. In The logic of that question is inescapable. This amendment this way, the clients involved are gradually alienated is directed to filling the gap identified by the noble from their parents and families in a sinister process of Lord, Lord Astor. The gap has been filled by legislation coercive control. in France, Luxembourg and Belgium. The French The well-known and well-documented phenomenon litigation broadly criminalises persistent or repeated of transference, originally explored by Sigmund Freud pressure on a person which abuses a vulnerable person’s in the 1890s, plays its part in this sad process. It involves weakness or abuses a person in a state of psychological 2295 Domestic Abuse Bill [3 FEBRUARY 2021] Domestic Abuse Bill 2296 dependency resulting from serious or repeated pressure From the outset, I have had in mind some young, or techniques used to affect their judgment in a way adult women whose experiences were brought to my which is seriously harmful. attention by their parents and families. In essence, I have been grateful for the support of the noble Lords, they had been brainwashed or suborned by quack Lord Astor of Hever, Lord Fairfax and Lord Dannatt, counsellors. They persuaded these young people to and my noble friend Lord Alderdice and others, who break off all contact with their families, infected them have not been able to speak tonight. Numbers of noble with false memories and got them to pay fees for the Lords have told me that they know families and young so-called counselling. Some of these young women people who have fallen victim to the actions of charlatan were well-off and suggestible but all of them, for no psychotherapists who would be liable to be prosecuted apparent reason, broke off all contact with their families. for the new offence proposed by this amendment. As the noble Lord, Lord Marks, has just said, My hope is that the Government will agree to France,Belgium and Luxembourg have laws to criminalise legislation reflecting this amendment and that it will the behaviour of predatory charlatans who exploit be supplemented in the future by provisions requiring others in a state of emotional or psychological weakness psychotherapists and counsellors to be licensed and for financial or other gain. It must be assumed that regulated, with a register of qualified members, recognised their laws do not conflict with those articles of the qualifications and a clear statement of ethical standards. ECHR that protect the right to private and family life, Meanwhile,serious cases where charlatan psychotherapists the right to freedom of expression and association, and counsellors are guilty of coercive control which is and the right to freedom of thought, conscience and plainly abusive should be met by their prosecution for religion. Totake the French example, in that jurisdiction a criminal offence, as set out in this amendment. I beg it is an offence punishable by imprisonment and very to move. heavy fines to abuse the ignorance or state of weakness of a minor or of a person whose particular vulnerability Lord Garnier (Con) [V]: My Lords, I apologise for due to age, sickness or infirmity, to a psychological or not taking part on Second Reading, although I have physical disability or to pregnancy is apparent or read the Official Report. I also apologise for keeping known to the offender. It is also an offence to abuse a my noble friend the Minister, new to his job, a bit person in a state of physical or psychological dependency longer at the crease. resulting from serious or repeated pressure or from Amendment 141 proposes a new clause that is within techniques used to affect his judgment in order to the scope of the Bill, but its value is not dependent on induce the minor or other person to act, or abstain the Bill. The wording and effect of Amendment 141 is from acting, in a way seriously harmful to him. self-explanatory but, if it needed any further elaboration, Amendment 141 is clearly different but, I believe, as the noble Lord, Lord Marks of Henley-on-Thames, useful. One way of considering whether the proposed has just provided it in his excellent speech. I cannot defence in Amendment 141 would work is to ask improve on what he said, but now is the moment when oneself the following questions. Would it be prosecutable Parliament must at last legislate to outlaw the quack in theory and in practice? Could each of the elements counsellors who predate on vulnerable people through of the offence be proved in a real-life example? Would controlling or coercive behaviour, and to provide some the measure deal with the mischief that was identified, sort of protection to their victims or intended victims. and would it catch no one else? The answer to those I have been concerned about these quacks and questions is yes. How would it affect partners, husbands, trying without success to get the Government to legislate wives, teachers, gurus, salesmen, priests and employers, for some years. I worked with Oliver Letwin and all of whom are likely to have power and influence? It Tom Sackville, two former Ministers, as well as need not do so. Would it allow the mentally capable parliamentary counsel and Ministry of Justice officials who want to give away their fortunes and leave their with the support and encouragement of David Cameron, families to do so? Of course it would. Would it make who had a constituency interest in the matter. I spoke sufficiently clear what was criminal behaviour and about these quacks at Report on the Modern Slavery what was not? Would it comply with the European Bill in November 2014 and the Serious Crime Bill in Convention on Human Rights? Yes, it would. What February 2015 when I was a Member of Parliament, effect would it have on religious freedom, or freedom and then again in your Lordships’ House on 2 March of expression or association? In my view, none at all. 2020 in the debate on the unregulated treatment of The victims of these bogus therapists have been mental health, initiated by the noble Baroness, Lady Jolly. waiting far too long for Parliament to help them. The Now, thanks to the noble Lord, Lord Marks, the noble amendment is humane and practical, and it has nothing Baroness, Lady Jolly, again, and the other contributors whatever to do with party politics. If the laws of France, to this debate—as well as my noble friend Lord Astor Belgium and Luxembourg can protect the people that of Hever, who spoke in the debate last March about this amendment seeks to protect, the law of England the Serious Crime Act—we are making real progress. can and ought to do so as well. Amendment 141, or We have laws to protect children and those under a something like it, should be added to the Bill. mental incapacity through intellectual impairment, disability or the effects of old age. We can prosecute Lord Parkinson of Whitley Bay (Con): My Lords, I those who dishonestly take old and frail people’s money, am afraid we have to leave it there for this evening. but we leave unprotected adults who may succumb to Debate on Amendment 141 adjourned. pressure exerted on them by others of malevolent intent because their exploitative activities currently do House resumed. not come within the criminal law. House adjourned at 10.14 pm.

GC 325 Arrangement of Business[3 FEBRUARY 2021] BriberyAct2010:Post-legislativeScrutiny GC 326

Grand Committee DPAs were a creation not of the Bribery Act but of the Crime and Courts Act 2013. However, the Liaison Wednesday 3 February 2021 Committee, when recommending the setting up of the bribery committee, specifically invited us to consider The Grand Committee met in a hybrid proceeding. DPAs as they have affected the conduct of companies, both to prevent corrupt conduct and in the investigation Arrangement of Business of such conduct when it is suspected of having occurred. Announcement DPAs apply to many economic crimes other than 2.30 pm bribery, but it appears that their principal use to date has been in relation to corporate bribery. As your The Deputy Chairman of Committees (Baroness Henig) Lordships will see from the report, the committee (Lab): My Lords, the hybrid Grand Committee will considered that DPAs can perform, and have to date now begin. Some Members are here in person, respecting performed, a very useful function in combating corporate social distancing, and others are participating remotely, bribery.Wewere not persuaded, as some have suggested, but all Members will be treated equally. I ask Members that they provide an easy way out for rich companies, in the Room to wear a face covering except when seated but not poor ones, to avoid prosecution. There are, at their desk, to speak sitting down and to wipe down however, three aspects that I want to stress. their desk, chair and any other touchpoints before and after use. If the capacity of the Committee Room is The first is that we consider it vital that, unlike in exceeded or other safety requirements are breached, I other countries, DPAs continue to be subject to judicial will immediately adjourn the Committee. If there is a control—in other words, only initiated after judicial Division in the House, the Committee will adjourn for scrutiny if the judge is satisfied that an agreement is five minutes. The time limit for the debate is three hours. likely to be in the interests of justice and that the proposed terms are fair, reasonable and proportionate, and sanctioned publicly by the court only if the judge Bribery Act 2010: Post-legislative Scrutiny is satisfied that the final terms do in fact satisfy these (Select Committee Report) requirements. The second point is that DPAs must not Motion to Take Note be used as a means of avoiding the prosecution of the individuals actually responsible for the bribery in question. 2.31 pm The third point relates to the financial penalty. Under Moved by Lord Saville of Newdigate the present law, the amount of the penalty should be That the Grand Committee takes note of the Report broadly comparable to the fine that a court would from the Select Committee on the Bribery Act 2010 have imposed on conviction following a guilty plea. In The Bribery Act 2010: post-legislative scrutiny general terms, this results in a discount of one-third of (HL Paper 303, Session 2017–19). the maximum that could be ordered. However, the discounts given in some DPAs in recent years have Lord Saville of Newdigate (CB) [V]: My Lords, the been as high as 50%. report of the committee charged with post-legislative I stress that the committee in no way considered scrutiny of the Bribery Act 2010 was published almost that the judgments in these cases were wrong, as there two years ago. The delay in the report coming before was clearly ample justification for the greater discount. this House was caused by general elections, Brexit However, they were cases where the company had not and, to some extent at least, the Covid epidemic. self-reported the bribery. We took the view that self- I start with the good news. In the view of the reporting by companies should be encouraged and committee, a view shared among all our witnesses, the that, accordingly, a company that has not self-reported Act is an excellent piece of legislation, sweeping away should normally receive a lesser discount than a company many unsatisfactory features of the previous law and that has done so, whatever co-operation the company instead creating offences that are clear and all-embracing. later provided. In their response to the report, the In particular, the new offence of corporate failure to Government noted this recommendation but made no prevent bribery puts the onus on companies to conduct commitment towards encouraging self-reporting by themselves in an ethical way and, where necessary, to companies. I, for one, hope that they will at least keep take adequate steps to prevent persons associated with this matter under review as, at present, we see a risk them from indulging in bribery.In light of this provision, that companies will consider that there will be little or the committee was not persuaded by the suggestion no benefit to be gained from self-reporting. that companies should be made criminally vicariously On another topic, we were firmly of the view that responsible for bribery. The report is therefore mainly there should be no exceptions to the offence of bribery devoted to considering how the Act has operated in in cases of so-called facilitation payments. These are, practice and whether improvements can be made to in general, small payments in cash or kind to bribe the way it is being implemented. officials into properly performing their public duties Time does not permit me to address all of the matters rather than failing to do so or taking undue time. that we considered, but there are some that I would There is no doubt that there are some countries where like to raise today.The first relates to deferred prosecution officials are low paid in the expectation that they will agreements, a novelty in English law. These are bargains add to their wages by this means. This state of affairs between prosecutors and a company under which the often puts the person asked for a bribe in a very prosecutor agrees not to proceed with a prosecution difficult position. For example, a ship’s captain with a against the company for a fixed time in return for the valuable perishable cargo on board risks losing it company mending its ways and paying a financial penalty. through delay if he does not sweeten the harbour-master GC 327 BriberyAct2010:Post-legislativeScrutiny[LORDS] BriberyAct2010:Post-legislativeScrutiny GC 328

[LORD SAVILLE OF NEWDIGATE] had to set aside $3.6 billion last year to cover settlements to let him berth in due time, by giving him a bribe of with authorities in the US, France and Britain after cigarettes or whisky of miniscule value compared with admitting it had paid huge bribes on an endemic basis that of the cargo. The committee is heartened by the to secure contracts in 20 countries. Furthermore, the fact that the Government have stated unequivocally Covid-19 pandemic has opened up opportunities for that no exceptions should be made for facilitation or bribery and contracts for cronies worldwide, including similar small bribes. It is noteworthy that some countries in Britain where an uncommon number of ministerial that did enact exceptions have now abolished them. mates seem to have benefited. A good deal of the report is taken up with the Nevertheless, as the committee reported, the Bribery question of educating people on the Bribery Act. We Act does not seem to have prejudiced UK business. had quite a considerable body of evidence to the effect Perhaps, as the noble Lord, Lord Gold, suggested in a that people were either ignorant of its provisions or recent article, the Act has resulted in companies improving misunderstanding them. There is not sufficient time their governance and compliance by not using third-party today to go into this question in detail, but for example, agents and therefore, as he wrote, has, many seem to have had difficulty in distinguishing “frightened many companies into honesty”. between unobjectionable corporate hospitality and However,perhaps the strikingly low rate of prosecutions attempts to gain an improper advantage. This is said, under the Bribery Act, as the committee pointed out, among other things, to have had an adverse effect on is because of the slow pace of bribery investigations, financial support through corporate hospitality for with a number of witnesses criticising the time it had sporting activities. taken for bribery charges to be brought and cases to On the general matter of guidance on the Bribery reach trial. The committee rightly recommended that Act, we made a number of specific recommendations the director of the Serious Fraud Office and the for improvement. As will be seen from the Government’s Director of Public Prosecutions publish plans outlining response to the report, we failed to persuade them to how they will speed up investigations into bribery and adopt or carry forward many of the suggestions that improve communication with those placed under we made. However,we do urge the Government to ensure investigation for bribery offences. that these matters are best kept under constant review, However, is not the real problem that there are simply especially in the case of SMEs seeking to open or enlarge not enough resources being invested by the Government their trade with other countries, a vital part of our into enforcing the Bribery Act and money laundering economy. Greater knowledge and understanding of legislation? Enforcement and investigative agencies, the Bribery Act can, in our view,only assist in combating such as the Serious Fraud Office, the National corruption. Corruption is an evil that, if allowed to Crime Agency and the Financial Conduct Authority, flourish, is extremely damaging to our society. require proper resourcing to utilise the legislation to At the time of our report, we did not know what conduct investigations—some very complex—and bring the Brexit outcome would be. Concerns were expressed prosecutions. Yet across the world that has not been the about the possible effects on European co-operation, case. In the UK, these agencies have not had anything since there were many EU measures in force to support resembling the resources required to combat financial and enhance security and law enforcement, some of crime in recent years, leading to a request in 2019 from which were of particular importance in the investigation the head of the National Crime Agency for an additional and prosecution of bribery offences, which often cross £2.7 billion in funding for that agency alone. That is national borders. I have asked the Minister present just one of the agencies involved in combating bribery today to give us an update on the position. requesting an additional £2.7 billion to enable it to do On a final note, I pay tribute to those who fashioned its job properly. No wonder London is regarded by the Bribery Act. Faced with an extremely unsatisfactory many as the money laundering centre of the world, state of affairs and a long history of less-than-successful where the legislation is stringent but the enforcement attempts to remedy matters, they produced what I and policing is certainly not. would describe as a model piece of legislation, bringing As I demonstrated in debates in 2017-18 in your simplicity, clarity and certainty to an important part Lordships’ House on the Sanctions and Money of our criminal law. I beg to move. Laundering Act, London-based global corporates such as HSBC, Standard Chartered and Baroda Bank 2.42 pm facilitated massive looting and money laundering from Lord Hain (Lab) [V]: My Lords, I thank the noble South African taxpayers under former President Zuma and learned Lord, Lord Saville of Newdigate, for his and his cronies the Gupta brothers. London-based instructive introduction and welcome the report of the corporates McKinsey, KPMG, and Bain & Co admitted committee. to raking off multi-million fees from President Zuma’s The international scope of both the UK Bribery Act regime, its state agencies and state-owned enterprises. —introduced by Labour when I was a Cabinet Minister So guilty of complicity in corruption were these corporates —and the US Foreign Corrupt Practices Act is important, that, when it was exposed, they sacked their top South with anti-corruption campaigners reporting a continuing African-based executives and made promises to pay rise in global bribery and corruption. For instance, back millions of fees they had received. Goldman Sachs has agreed to pay $2.9 billion, or Why, however, were they not prosecuted in London £2.2 billion, to settle a US-led investigation and its under the Bribery Act? Is it because, like another Malaysia division also agreed to plead guilty to violating London-based corporate guilty of whitewashing foreign bribery laws linked to the alleged looting of corruption and securing a lucrative fee, Hogan Lovells, the country’s sovereign wealth fund, 1MDB. Airbus the international law firm, told the Solicitors Regulation GC 329 BriberyAct2010:Post-legislativeScrutiny[3 FEBRUARY 2021] BriberyAct2010:Post-legislativeScrutiny GC 330

Authority that their South African arm enjoyed the Bribery Act. The only reason I can imagine for that same name only for “branding purposes”, and that squeamishness is that somehow it thinks it is a competitive London bosses were therefore not culpable in any advantage to shield directors in a way that they are not way? You could have fooled me looking at their website shielded elsewhere, such as in the United States. and their activities internationally: they are a global A read of the call for evidence background document corporate like the others that I have named. Surely gives a good exposition of how bad matters are and many corporates operating from London should be bound of the reasons why evidence of failures in prosecutions by the Bribery Act. Otherwise, people will ask: is it is relatively scant—because prosecutors know they cannot worthless? I hope the Minister will reassure me on succeed against large companies and give up, unless these questions and I will be interested in any observations sector-specific legislation has been introduced such as by the noble and learned Lord, Lord Saville of Newdigate. the “failure to prevent”regimes or the now systematically compromised financial services senior managers’regime. 2.48 pm The current common law “directing mind”principle, Baroness Bowles of Berkhamsted (LD) [V]: My Lords, first expounded in 1915, is unfairly discriminating to I welcome this report and commend the work and small businesses. The Crown Prosecution Service’s legal conclusions of the committee and the opening speeches guidance, under “Further Evidential Considerations”, by the noble and learned Lord, Lord Saville, and the states: noble Lord, Lord Hain. “The smaller the corporation, the more likely it will be that guilty knowledge can be attributed to the controlling officer and I will speak about “failure to prevent”offences generally, therefore to the company itself.” but before that will speak briefly on the lack of clarity Given the general guidance for prosecution that there about what is meant by procedures being “adequate”for must be a “realistic prospect of conviction”, no wonder preventing bribery. This was brought about by the evidence is scant and statistics show a preponderance subsequently enacted tax facilitation offences using of prosecutions against small companies. the alternative phrase “reasonable in all circumstances”. How can that unfairness be left to stand? What does This is despite that having been dismissed in the Bribery it say about the culture of our country and why people Act debate as too high a standard by referring to “all feel left out? While acknowledging the fact of wrongdoing, circumstances”. In that context “adequate”was thought people nevertheless rightly resent there being one law to be a lower bar. Certainly, if I congratulated a for the big and another for the small. Dancing-on-pins fictitious noble Lord on their “adequate speech”, it excuses do not cut that. may not be taken as altogether complimentary. Civil law developed to take account of the complexity Others switched the emphasis around so that, looking of modern companies, but not criminal law. Civil law after the event, the bar is suddenly higher because is not enough: the ultimate deterrent of deprivation of procedures had failed and must therefore be inadequate. liberty cannot apply to corporations, and in the end it I am comforted that a senior judge said that he would does not apply to directors in large corporations. have accepted them as both meaning the same had it Culture will not change until it does, and the UK being been presented to him, but clarification on what is “a good place to do business”is a tainted phrase—maybe intended is desirable for both purposes. even a loaded phrase. Surely directors should be required I have mentioned the two “failure to prevent”offences to ensure systems to prevent all bad corporate behaviour. and the reason for their existence is to strengthen the Only then will action make its way to the boardroom, prospect of finding responsible parties guilty—which rather than be kept away in the safety of the executive is very difficult because of the need to find a directing committee or below. mind, and is tantamount to impossible with the board But if the ministry is reluctant—whatever the cause— structures of large firms. Therefore, I welcome the will it at least not stand in the way of further sectoral point made in paragraph 109 that there are arguments facilitation of crime measures? to make corporations vicariously liable more generally, even though there is not a recommendation due to the inquiry’s scope. 2.54 pm It is some time since the Ministry of Justice made a Lord Gold (Con) [V]: First, I thank the noble and call for evidence on corporate liability—to which I learned Lord, Lord Saville, for securing this debate made a submission—and, after a long delay,the response and for ably chairing the Select Committee, and also is that there was not a sufficient evidence base on which thank the noble Lord, Lord Hain, for plugging my to base reform. It has been sent off for lengthy procedures recent article. in the Law Commission, which already said in its 2010 The Select Committee report we are considering paper on Criminal Liability in Regulatory Contexts that today stated that the Bribery Act “the identification doctrine can make it impossibly difficult for “is an excellent piece of legislation which creates offences which prosecutors to find companies guilty of some … crimes, especially are clear and all-embracing.” large companies”, I agree and, in doing so, declare my position as a member and in its 2019 paper on suspicious activity reports that of the committee. The new Section 7 offence of corporate “The identification doctrine can provide an incentive for companies failure to prevent bribery was innovative and has been to operate with devolved structures in order to protect directors most successful, not because there has been a plethora and senior management from liability.” of prosecutions but rather because it has made CEOs Regrettably, I do not believe that the department and boards undertake their own review of their businesses has any heart to follow through on the Prime Minister’s to satisfy themselves that they comply with the new call for action in 2016 and the good start shown by the legislation. GC 331 BriberyAct2010:Post-legislativeScrutiny[LORDS] BriberyAct2010:Post-legislativeScrutiny GC 332

[LORD GOLD] The committee recognised the need for careful judicial The immediate reaction from businessmen when oversight of DPAs and identified two key conditions the Bribery Bill was enacted was that British companies for one: first, whether the company self-reported; and, would find it harder to compete internationally. There secondly, whether it then co-operated with the criminal was a particular concern that facilitation payments prosecution. A further essential requirement is that were being outlawed and there was a fear—clearly the company embraces compliance and governance unfounded—that the new Section 7 offence would be and demonstrates that it is committed to clean business onerous. It was particularly interesting to the Select in future and, as required by Section 7, will put in Committee that no witness giving evidence suggested place processes and rules which will reduce the risk of that there should be any relaxation of the prohibition this recurring. This commitment has to come from the on facilitation payments. very top of the company, fully supported by the board, Recognising the success of the Section 7 “failure to demonstrating by their actions, not just words, that prevent”model, the Select Committee recommended that non-compliant business is unacceptable. the Government should consider whether this should Over the past 10 years, I have worked closely with a be adopted in other areas, notably to prevent economic number of major international businesses that have agreed crime. This issue is now being considered by the Law a DPAand, in the run-up to securing that, have completely Commission. I ask the Minister to confirm that the overhauled their compliance regime.I have been heartened Government will keep under review the possibility of by the approach adopted by each of those companies, extending the Section 7-style offence to this and, possibly, and in every case I believe that the business has been other areas. strengthened by the measures adopted. In practice, as the Select Committee found, there is Finally, it is of concern that, where DPAs have been little sign that the Bribery Act has prejudiced UK business. agreed, there have been so few successful prosecutions If anything, it has resulted in companies improving against individuals responsible for the criminal act. their governance and compliance. Indeed, by not using While strongly supporting DPAs, the committee reiterated third-party agents, which has been a cause of problems the importance of prosecuting the “culpable individuals”. for many international businesses, companies have been I ask the Minister to let us know whether the Government better able to compete internationally, as they have have any plans to address this issue and, if so, what developed closer direct relationships with their customers, they are. instead of relying on middlemen to be the link. Another area where the Bribery Act has been successful 3 pm is in cutting corporate hospitality. The committee Lord Stunell (LD) [V]: My Lords, it is a pleasure wondered whether the pendulum had swung too far to follow the noble Lord, Lord Gold, one of the and many companies were shying away from giving many distinguished and high-powered members of the any hospitality to their customers, even though, properly committee, on which I too served, under the very administered, corporate hospitality can be a necessary effective chairmanship of the noble and learned Lord, and legitimate part of doing business. Lord Saville.It was as well-informed and expert committee The Ministry of Justice guidelines on what is as your Lordships would expect. permissible are clear and, although the committee However, I was not one of those experts. I came on suggested that the Government should consider adding to it straight off the Clapham omnibus, via the Committee further examples of what might constitute acceptable on Standards in Public Life. For me, the test was: how corporate hospitality, the Government declined to do can we get to the gold standard of effectiveness in the so. They explained that the guidelines were drafted fight against corruption, in the punishment of bribery, “in a deliberately high-level, non-prescriptive way to encourage and in the deterrence of anyone from using bribery or organisations to examine their own internal systems and procedures”, corruption in other forms as a route to business success? and identified other sources for guidance—notably, The UK has one of the better legal frameworks for Transparency International. I rather agree with this. tackling bribery—certainly up to silver standard but Frankly, common sense should largely dictate what is definitely not gold standard. We are high in the permissible. A modestly priced working lunch or dinner international corruption perceptions index, which is is clearly on the right side of the line; an airplane being good, but we are not top of that list. Our score has delivered to a customer, carrying a Rolls-Royce car as fallen from 82 points out of 100 in 2017 to 77 points a sweetener gift, is not. Over time I am sure that last year. A five-point decline in four years is not a companies will find the right balance. world-beating performance, and we have now dropped out of the top 10 on that index. Surely we should be The Select Committee reviewed deferred prosecution moving towards the gold standard, and not dropping agreements which, as the report states, down to bronze, in the years ahead. I will pick out two “have had a major influence on some of the largest recent cases of of our recommendations that show where we could corporate corruption, allowing them to be settled without the reverse that decline and comment on another where I companies involved being convicted of the offences.” fear that the UK is now anyway committed to going This is terribly important, because the existence of further downhill. a conviction may well mean that companies are First, regarding our skilfully drafted recommendation debarred from undertaking certain business, notably 9 on vicarious liability, on which others have already government contracts, in all parts of the world. This spoken, the issue for me is whether, when the ship would put companies at risk of close-down, with sinks, the captain should go down with the ship or ensuing unemployment of their staff. whether, so long as he did not realise that someone GC 333 BriberyAct2010:Post-legislativeScrutiny[3 FEBRUARY 2021] BriberyAct2010:Post-legislativeScrutiny GC 334 was steering on to the rocks, he should get away in the 3.06 pm lifeboat with no court of inquiry to follow.Tothe lawyers, it is “mens rea”—not much spoken of on the Clapham Lord Morris of Aberavon (Lab) [V]: My Lords, the omnibus. What normal people expect the law to do is Select Committee of your Lordships’ House is to be to hand out just deserts to those in authority who congratulated on an impressive and comprehensive show reckless ignorance of wrongdoing on their watch. report, which is a good example of post-legislative scrutiny. I well remember that, when I was a member Instead, protected by the current law, it is absolutely of a similar scrutiny committee on the Defamation in the best interests of those who run large businesses Act, there was a steep learning curve. and multinational companies to keep themselves carefully ignorant of any evidence of bribery by underlings In the short time available, I can touch on only when they bring home big contracts and boost company some of the report’s subjects. The first is the role of profits.When knowledge means taking legal responsibility the CPS and the SFO. In my time as a law officer, I and ignorance means acquittal, the incentives are perverse. had to initiate reform of the CPS by setting up the The committee noted evidence that, as a result of that, Glidewell inquiry. In my supervisory role, I had regular it is much easier to convict the boss of an SME than meetings with the Director of Public Prosecution and the boss of a multinational company. That, too, is a less frequent meetings with the director of the Serious wholly perverse outcome of the current framework of Fraud Office. My first point is that, as a criminal law legislation. practitioner,I was very conscious of the immense burden that prosecutors carried in investigating and prosecuting The committee’s recommendation does not endorse fraud cases, which were becoming more complex than this perversity, but nor does it recommend any change. they had been in the past. It is essential that investigators But if we ever want to get to gold standard, we will and prosecutors have sufficient resources to tackle the have to find a way to reconcile our legal principles problems. May I ask the Minister to place on record with common sense, as has already been achieved in the financial resources that the CPS and SFO have the United States and other jurisdictions to good been getting annually since the beginning of the period effect. My question to the Minister is: does he actually when austerity cuts began? I believe that the Ministry want to be world-beating? Does he aspire to reach of Justice accepted far too readily reductions in finance gold standard on corruption? If it is not via vicarious and, hence, manpower. Specifically, can we have the liability provisions,what does he propose as the alternative? figures for both? That brings me to the committee’srecommendation 20, I regard it as important that the Director of Public where we pressed the Government to introduce a “failure Prosecutions and the director of the SFO should to prevent”offence to a wider range of economic crimes publish plans outlining how they will speed up bribery and corrupt practices. There is clear evidence that a investigations and improve levels of communications “failure to prevent” offence is an effective inducement with those placed under arrest under the Bribery Act. to companies to put in place a culture of compliance That is not to denigrate the Government’s response, and systems and processes to support that culture. which I welcome; my query is whether it goes far Among other important benefits—like actually stopping enough. The committee received evidence of relatively bribery happening—it means that bosses cannot so low salaries for lawyers and investigators at the SFO easily shelter behind ignorance if a case does come to and the CPS in comparison with their private sector light. It is, therefore, very disappointing that the counterparts. That is only partially taken on board in Government have given a very tepid response to our the Government’s endorsement of the SFO’s increased recommendation. I could quote the Government’s budget. I make the same point as regards the rank of response at length, but I will summarise it by saying it police investigators and the resources that the police was pretty much a lemon. It is a clear opportunity to are able to devote. I regard the Government’s response raise our score on that index, so I hope to hear the to paragraph 85 of the report, where the committee Minister say that he will now quickly revisit this key makes a valuable recommendation, as inadequate. I issue and get things moving in the right direction. submit that the Government should look again at this Lastly, recommendation 14 focused on the European now and repeatedly in future years. arrest warrant, where we said: I welcome the scrutiny that the committee has given “The fight against international bribery will be significantly to deferred prosecutions and pay tribute to the noble impeded if there are not in force … measures with equivalent and learned Lord, Lord Garnier, for his advocacy. The effect to the European Arrest Warrant.” emphasis is clear in the report that the judgment of the court should be public, and the public should be aware In his evidence to us, the Minister, Ben Wallace MP, of what has happened and the conclusion. said that the loss of the EU arrest warrant

“would have a degrading effect on our ability”. On post-Brexit issues, the lower figures for applications for European arrest warrants at Westminster magistrates’ In the event, as your Lordships will know, the UK has court in recent weeks are alarming. I am concerned by ditched the European arrest warrant—a clear step the Government’s claim that they have the available backwards in the fight against corruption. So my final tools to ensure the safety of our realm and that we can question to the Minister is: what concrete plans do the get hold of people whom we require to face justice. I Government have to reverse this slide down the league suspect that the tools are inadequate and we are less and to rebuild our record of ethical business practices, protected than we were. Perhaps we could have the both at home and abroad? observations of the Minister specifically on the issue GC 335 BriberyAct2010:Post-legislativeScrutiny[LORDS] BriberyAct2010:Post-legislativeScrutiny GC 336

[LORD MORRIS OF ABERAVON] evidence will be in electronic form on a multitude of of why there has been such a reduction in applications different platforms. Identifying and comparing strands for extradition in recent weeks at Westminster magistrates’ of an investigation will be much enhanced by the use court. of AI. I welcome the committee’s scrutiny. I turn to that The SFO evidence provided to the inquiry and the part of the report that deals with corporate hospitality, report itself raise the question of vicarious liability. although it has been dealt with so adequately by the That case has just been outlined by my noble friend noble Lord, Lord Gold. The bottom line is that it is a Lord Stunell; the report does not rule it out but says matter of common sense, as he said—and I repeat that it is beyond its scope. The SFO, in supporting the that. Many years ago, my friend the late Sir Melvyn case for this approach in its evidence, states: Rosser, one of the senior partners at Deloitte and a “From a prosecutor’s point of view this lack of clarity”— member of the Royal Commission on Standards of Conduct in Public Life, said that a possible yardstick —that is, the identification principle approach— of the measure of hospitality was that a bottle of “is a significant disadvantage in attributing corporate liability”, whisky at Christmas might be permissible but certainly and says that not a case of whisky at any time. The Bribery Act was “the clear principle of vicarious liability for criminal acts by never intended to prohibit reasonable and proportionate employees acting for a company creates a much stronger enforcement hospitality or other similar business expenditure. I do regime.” not go along with the committee’s attempt to get the In response, the committee’s report states that this Government to give clearer examples in the Ministry issue goes beyond offences under the Bribery Act. of Justice guidance. It is common sense at the beginning In view of that response, can the noble and learned and the end, and no more advice is really needed. Lord, Lord Saville, the chair of the committee, say With those brief words, I am conscious that I do whether he considers that a further investigation not do justice to the committee’s hard work, which I into that measure alone by the House of Lords commend, and I appreciate the forbearance of the House. would be appropriate, and whether he might consider recommending it to the House? It would also be 3.12 pm important to understand the view of the Government Lord German (LD) [V]: This is a very welcome in their response to this debate. report, and it is pleasing to note that the Act in itself is I turn to another matter that has arisen in the robust, and that most of the concerns expressed are period between the publication and response to this related to the operation of the Act. Of course, this report, which is the OECD Working Group on Bribery debate has been a long time coming, as noble Lords conclusions on the UK Government’s report on the have said. Between its publication in March 2019 and follow-up to the phase 4 evaluation. The Government’s the Government’s response in May 2019 and now, follow-up report was presented in March 2019, and nearly two years later, a great deal of time has elapsed, the OECD gave its evaluation later that year. Many of and progress in our courts has been held up significantly the OECD recommendations have been fully or partially by the pandemic. Looking at this in a positive way, implemented, but there are several where no progress this delayed debate provides an opportunity to review has been made, and where there is a read-across to the the report and the response by looking at what has committee’s report. changed over the intervening period since their publication. There are two issues in the OECD report which are I have the impression that at, about, or close to the of particular concern. The working group welcomed period of publication, a major change of internal the committee report’s recommendation that the emphasis took place in the Serious Fraud Office. I got Government should review the guidance to commercial a sense of a clearing out, a refreshment, and a new organisations, but noted that approach to its work. This was very encouraging. However, “no steps have yet been taken to address the Working Group’s I would be grateful if the Minister in reply could Phase 4 recommendations in this respect”. indicate whether my impression is born out of reality. Those OECD recommendations in 2017 preceded the I note the report’s comments on how the SFO committee report that we are now considering. I would handled large amounts of documentation, which was be grateful for the Government’s response to this a contributory factor to the long delays in producing matter, given the time that has elapsed. outcomes to its investigations. For example, it talks of millions of documents being scrutinised in the course The second issue relates to the independence of of the Rolls-Royce investigation. The reality is that investigation and prosecution of foreign bribery and data, by which I mean documents and digital information, in particular the implementation and use of Shawcross will increase, not decrease. The report mentions the exercises in foreign bribery cases. Taken alongside introduction of artificial intelligence as a means of what noble Lords have previously talked about in aiding this scrutiny. That approach is essential, because terms of the European arrest warrant, could the the demand for better correlation of information and Government say whether this matter has now been timeline creation, sometimes spanning multiple sources corrected or needs to be put right, and what deficiencies of information, will increase as the number of data there are now in the system? sources increase. I would be grateful for an update Finally, I turn to SMEs. The report outlines a from the Minister on how this challenge is being met. number of recommendations on the approach to gifts Does the Minister agree that this approach will be an and hospitality and on better guidance.The Government’s important tool in the armoury of the SFO in dealing response to better guidance is that SMEs could find with the complexity of modern business activity? Much information on bribery on the Government’s web pages GC 337 BriberyAct2010:Post-legislativeScrutiny[3 FEBRUARY 2021] BriberyAct2010:Post-legislativeScrutiny GC 338 or by phoning a helpline. So they say that the information as the noble Lord, Lord German, pointed out a few is there, if you want to look for it. But above all SMEs moments ago, that the person running a small business, need to be aware of the issue, because you cannot look up a lane in a garage somewhere, would not necessarily for things that you do not know exist. There is certainly have the grasp of the issues that a large corporate has, room for a more systematic approach to awareness which can afford to employ expert legal advice and raising, and the Government as yet seem to have not have people to deputise. That needs to be watched very taken the opportunity to take this forward. This is carefully. We need to push the SME sector to export, crucial if we are to encourage more and more companies and the biggest fear it has is not so much getting to look for export opportunities across the globe. sucked into bribery but not getting paid for its products Awareness-raising can follow a wide range of routes, in a foreign market. That needs to be taken into account. but the Government need to address this matter urgently. The other issue that we touched on was how this The committee witness who said that you cannot take matter will be continuously kept under the eyes of someone out to dinner without committing a crime government and Parliament. There is, or was at the exemplifies the need for a balanced and understood time, a parliamentary advocate, who I think was John approach to these matters. As the report states, corporate Penrose MP, and we were a bit concerned that a hospitality is a necessary and legitimate part of doing Back-Bencher might not necessarily be the right person business. The Government must do more to raise to promote the whole concept of keeping bribery awareness of that balance— under control. I would also like to raise one another matter, which The Deputy Chairman of Committees perhaps the Minister could address in summing up—no (Baroness Henig) (Lab): My Lords, I reinforce the one would be better qualified. We took evidence from point that the time limit for speeches is six minutes. Scotland; of course we know that Scotland has a different law and has had for centuries. One issue that 3.19 pm came up was whether there was a risk that the law in Lord Empey (UUP) [V]: My Lords, I begin by Scotland could become sufficiently different from the thanking the noble and learned Lord, Lord Saville of law in the rest of the United Kingdom that we could Newdigate, for his chairmanship, which it was a pleasure allow a loophole to develop whereby location of a to serve under throughout this report. I also extend business in one part of the United Kingdom would my thanks to the clerk and the staff of the committee, leave it less vulnerable to charges under the Bribery who served us extremely well, dealing with voluminous Act than if it was located in another. I would appreciate amounts of evidence that came in throughout the it if the Minister could address that in his summing inquiry. up. While we were satisfied that it was adequate and If I had one impression from the committee, it was equivalent in current circumstances, that may not that perhaps we were looking at the issue a little earlier necessarily be the case in future. Could that particular than might have been appropriate given that it takes a matter be kept under review? long time for a piece of legislation like this to drill down to the actual business on the ground. However, I 3.25 pm would have to say that we are not unique in having a Lord Hodgson of Astley Abbotts (Con) [V]: My report debated here 18 months to two years after we Lords, I too was a member of this committee and I published it. Earlier this week I attended Grand enjoyed serving under the chairmanship of the noble Committee when the noble Lord, Lord Howell of and learned Lord, Lord Saville of Newdigate. Like my Guildford, was making a report on the Pacific Alliance, noble friend Lord Empey, I also pay tribute to our and that was 18 months old as well, so we are not in excellent staff, marshalled expertly by Michael Collon. any way unique. I chaired a different committee which Michael was It was encouraging to hear that by and large the clerk to, and so I spoke to him just before Christmas legislation was working, and it was also good to hear and found that he was retiring from the House on that the United Kingdom has a relatively good reputation 31 December last. I am sure that I speak for the internationally on its approach to bribery. However, as committee and indeed the whole House when I wish the noble Lord, Lord Stunell, pointed out, that was him on behalf of all of us a very happy retirement. I the position nearly two years ago, and obviously it has expect that he may well have tuned in to watch this changed. I hope that that is not permanent. I also note debate this afternoon. that I watched an interview last night with Senator In my remarks I will focus on just three points: the Menendez of the US Senate, during which Russia and position of SMEs in relation to the Bribery Act; the what was happening in the Navalny case came up. A role of the Government’s anti-corruption champion; throwaway remark was made that London was awash and finally, like several other noble Lords, including with Russian money, we were very soft on dealing with my noble friend Lord Gold, I shall urge the Government money laundering, and so on. One has to be aware to reach a decision on the widening of the “failure to that our reputation is under scrutiny by the world, and prevent”offence. These three points need to be considered questions need to be answered about how we approach in the context of the overall conclusion of our report, large sums of money which seem to come without any which is, as our chairman said in his opening remarks, clear evidence of how they were earned. that the Act is an excellent piece of legislation. The other issue that has perplexed me somewhat First, on the SMEs,it is important that the Government has been the balance between small and medium-sized always remember how narrow the management bandwidth enterprises and the large corporates. While our inevitably is. Unlike big companies, they cannot double- recommendations are as they are, one still has a feeling, bank roles. Management time is a precious and scarce GC 339 BriberyAct2010:Post-legislativeScrutiny[LORDS] BriberyAct2010:Post-legislativeScrutiny GC 340

[LORD HODGSON OF ASTLEY ABBOTTS] widened to cover economic crime generally.The original commodity. It is therefore critical that decisions on consultation paper was issued by the MoJ in January 2017 whether to prosecute are taken promptly. To have a and the consultation closed at the end of March that sword of Damocles hanging over an SME will, if not year. Now, four years later, we are still awaiting a paralyse it, certainly render it much less effective. decision. Can my noble and learned friend please give Therefore we were not impressed by the slow pace of us a heads-up on the latest position on this when he progress by investigations of these cases. Most disturbing replies? was the stop-start nature of many of them. Interviews would take place followed by long periods of silence: 3.31 pm 12, 15 or 18 months, we were told in the evidence we Lord Woolf (CB) [V]: My Lords, it is a pleasure to received. speak on this matter. I do so from a different perspective The Government’s reply to this at paragraph 17 in to the earlier speakers from whom we have heard so their response document was that progress was being far. I say first that, in my view, the Act was undoubtedly made, and they prayed in aid that now all preceding the most constructive and sorely needed legislation of cases over two years old will be given special treatment which I am aware. It has played an important role in to speed the decision. Two years of uncertainty is a promoting higher standards of ethical conduct in global quite unacceptable burden on any company, but companies internationally and has helped to make the particularly on a smaller one, where ownership and concept of the “responsible capitalist” a reality. management may well be combined. SMEs whose Having said that, I should disclose that I make business is focused particularly on exports have, of those remarks as a result of experience I had before course, to face the grey area of corporate hospitality, the Act that we are considering came into force. In 2008, and it would be good to know what progress has been I became the chairman of a committee that delivered a made in fulfilling the pledges made in paragraphs 73 report on business ethics in global companies and, in to 75 of that document. Overall, one was left, as other particular, the defence industry, based on the conduct noble Lords have said remarked, with an underlying of one company, BAE Systems, one of the world’s suspicion that SMEs could be seen as a happier hunting largest global defence contractors. In addition, I was ground for prosecutors. The directing mind principle, for 10 years chairman of the judges of FIRST magazine’s referred to by the noble Baroness, Lady Bowles, the competition to identify the responsible capitalist of inevitably less well-resourced defence and the pressure the year—a task now performed by my noble and on small management claims to clear up and move on learned friend Lord Judge. will all be factors that may lead prosecutors to see an I mention my impressions on the basis of ancient opportunity to make an example. In the Skansen experience because it is important that we should realise Interiors case, which we examined in some detail, it that great progress has been made. In our comments was interesting that it was not even offered the opportunity today, we must recognise that the criminal justice system of a deferred prosecution agreement. in this country is facing probably the biggest challenge The next point I want to make concerns an update that it has faced since the last war. The number of cases from my noble and learned friend on the Front Bench outstanding is horrific. Any changes that we would like on the role of the Government’s anti-corruption to promote before the Minister must take place against champion. I make it clear at the outset that I am not in the reality of that background. A terrible danger exists any way attacking John Penrose MP, who currently now of injustice being caused by delay. The remarks holds that position. He is in an unenviable and probably from the noble Lord, Lord Hodgson, about SMEs impossible position. In that old country phrase, he is having a sword of Damocles hanging over them should set to get most of the kicks and none of the ha’p’orth. certainly be taken into account. His role seems to be a token nod towards the importance The reality is that the capacity of the system to that the Government place on anti-corruption activities, expedite more cases that could take a long time to and he appears to have neither the clout nor the investigate is limited at the present time. Certainly, resources to be able to carry out the detailed investigations what has been suggested about further reports in the or effect real change. Indeed, until July last year, future should be paid attention. With great diffidence, Mr Penrose was combining the role with that of a I suggest that the help that has been given now could Minister of State in the Northern Ireland office. be of double value if it were to be given once the When my noble and learned friend comes to wind present situation of arrears in dealing with criminal up, can he lift the curtain on the Government’s policy cases is not as pressing as I have suggested it is. objectives for this post? What is its budget, what staff In 2008, it was thought that legislation of the sort does it have and to whom does the anti-corruption that was concluded in the 2010 Act would tie the hands champion report? What practical results can the of British companies internationally. I am very pleased Government point to? It is interesting that, if you do a to know that, in fact, that has not been the consequence. Google search, one of the only entries on the website We thought that being a responsible company was is Mr Penrose’s appearance before our committee on becoming more and more important and, therefore, it 10 July 2018. was vital to make clear that there was some sanction. I return to the issue of Section 7 on failure to prevent, I note that there has been no comment so far this which is seen, as many noble Lords have said, as one afternoon about consent being required. I thought of the key parts that drives against corruption and that that might be a matter that would cause concern— which has proved pretty successful. The Government though I was not sure why it would cause concern, have taken an inordinately long time to reach a decision because the consent that is required now is from the as to whether the scope of this offence should be very people who would be responsible for prosecutions GC 341 BriberyAct2010:Post-legislativeScrutiny[3 FEBRUARY 2021] BriberyAct2010:Post-legislativeScrutiny GC 342 if they take place. They presumably will be the best the Government have the stomach for the fight against watchdogs over this situation. Of course, they must bribery.This is, after all, the Government who champion have—as had been pointed out already—the resources the global buccaneers who will swashbuckle their way to go into matters of this sort in so far as can be around the world with scant regard for the niceties practical, which is very limited at present. and who are only too willing to act as money launderers There has been talk also of deferred prosecutions. to the world, as the noble Lords, Lord Hain and DPAs are making very slow entry into our criminal Lord Empey, pointed out. justice system. Our Act overtook the law in the United So we will listen carefully to the Minister’s response. States, but, in the United States, much greater use is The Committee has rightly pointed to the slow progress made of facilities of that nature. It is obviously the of bribery investigations and prosecutions and rightly sensible way to deal with acts of corruption. Nothing asks how the Government intend to bring a sense of will influence the directors of companies—no matter urgency to implementation and enforcement. It is what their size—more than if the punishment is on the encouraging that in Transparency International’s 2020 company’s finances. For that reason, it is important report, Exporting Corruption, the UK is one of only that it takes place. four countries, along with the USA, Switzerland and Israel, cited as active enforcers of anti-bribery measures, but the report also finds that active enforcement has fallen 3.38 pm off since 2018 and there is real danger of us falling out Lord McNally (LD) [V]: My Lords, it is always an of the top group—as my noble friend Lord Stunell honour and pleasure to follow the noble and learned indicated. Key to avoiding that slide will be ensuring Lord, Lord Woolf, with all his wisdom and experience. the availability of funding for the Serious Fraud Office On 13 May 2010, I became Minster of State for to pursue serious cases and ending the delay in bringing Justice in the coalition Government, as deputy to the forward prosecutions. noble and learned Lord, Lord Clarke of Nottingham, There is also the general responsibility to prevent who was then Secretary of State for Justice and economic crime. The review that we are considering Lord Chancellor. In my in-tray when I arrived at the today states that department was a gift from the departing Labour “the new offence of corporate failure to prevent bribery is regarded Government in the shape of the Bribery Act. The as particularly effective”, noble Lord, Lord Bach, had done much of the heavy and Transparency International UK has called for the lifting in this House in delivering the Bill to the statute Government to extend the “failure to prevent”approach book and had been supported from these Benches by used in Section 7 of the Bribery Act to corporate the late and sadly missed Lord Goodhart and my criminal offending in economic crimes such as fraud noble friend Lord Thomas of Gresford who, happily, and money laundering—I was pleased to see the noble is with us today and from whom we will hear later. Lords, Lord Hodgson and Lord Gold, lend their It is perhaps not surprising that those who opposed weight to that, as well as my noble friend Lord Stunell. the Act saw the change of Government as an opportunity Bribery is often seen as a victimless crime where to push back on bringing the Act into force. This one man’s bribe is simply another’s facilitation of the meant a delay in implementation, for which we were wheels of commerce. It is not. It is corrupting to both criticised at the time. The Secretary of State and I ends of the transaction. It distorts the benefits of the carried out a consultation with a variety of interested free market by preventing the best product or service parties. We heard all the familiar objections: how being provided for the best price. It diverts resources burdensome it would be on business, particularly SMEs; from the needy to the criminal and inflates the cost of how it would inhibit the use of legitimate corporate development. The Select Committee is in our debt for hospitality; how many grey areas there were between a pointing the Government in the right direction in tip and a bribe; and, of course, the plea that we would updating the Bribery Act for the new circumstances lose out to the dastardly French, who would steal all we face in the decades ahead. We are grateful to the our business by ignoring such Anglo-Saxon sensitivities noble and learned Lord, Lord Saville, and his colleagues to the greasing of palms. for their work. That second round of consultation by the incoming Government emphasised the cross-party support for 3.43 pm the legislation and its greater acceptance. We took the flak about the delay,and the Act reached commencement Lord Rogan (UUP) [V]: My Lords, I welcome the on 1 July 2011. I took some satisfaction from reading Select Committee’s report and commend its members in the Select Committee’s report that it had received for their sterling work in producing it, especially and no “major”criticisms of the legislation and that, overall, including my noble friend Lord Empey. “the structure of the Act, the offences it created, its deterrent One of the great privileges of serving in your Lordships’ effect, and its interaction with deferred prosecution agreements, House is the sheer volume of knowledge and expertise are only some of the aspects which have been almost universally that we possess as a collective body. We are also not praised”. known for giving compliments lightly, particularly when We are entitled to ask whether the Conservative it comes to our primary role of scrutinising legislation Government elected in 2019 would have been as willing from the Government of the day.It is therefore noteworthy as the coalition to pick up the Bribery Act and guide it that the Select Committee report describes the Bribery to commencement. The noble Lord, Lord Hodgson, Act 2010 as asked some pertinent questions about the role of the “an excellent piece of legislation which creates offences which are anti-corruption champion and rightly questioned whether clear and all-embracing”. GC 343 BriberyAct2010:Post-legislativeScrutiny[LORDS] BriberyAct2010:Post-legislativeScrutiny GC 344

[LORD ROGAN] 3.48 pm To be fair, Ministers did have quite a bit of time to give proper consideration to its provisions, since the Bribery Baroness Fookes (Con) [V]: My Lords, when I joined Act received Royal Assent 121 years after the first the committee, I had had no previous experience of attempt to put the common law offence of bribery on post-legislative scrutiny. I came away from it greatly to a statutory footing. However, coming eight years impressed by the value of this form of consideration. after the Act became law, the Select Committee report As we have had ample evidence of this afternoon, the makes it clear that the wait was worth it and that the House of Lords seems brilliantly equipped to undertake legislation can now rightly claim to stand as an example such inquiries. Having listened to many other speakers, to the rest of the world on how to combat bribery. it seems to me that there would be definite value in resurrecting this process in another five years or so to Of course, there is always room for improvement in see how matters have developed. It is clear that the Act an ever-changing world. The report offers some helpful itself is remarkably good legislation, but how it is suggestions on how the Act’s measures might be made implemented and develops seems worthy of consideration even more effective. I echo the comments and suggestions further down the line. made by the noble Lords, Lord German and Lord Empey, regarding SMEs. One point that concerned me during our taking of evidence was the reluctance of small and medium-sized Over some 40 years as an owner and director of companies to give evidence in public. I can understand several Ulster SMEs, I have been fortunate to experience that, but it left a slight gap in the knowledge that we many different countries and diverse cultures in my wanted to obtain, but I suppose that is water under commercial working life. I welcome in particular the bridge. Select Committee’s recommendation that Her Majesty’s Government provide UK companies with support on I turn now to the question of facilitation payments, corruption issues in countries to which they either referred to earlier in the debate. This does not have the currently or expect to export, and on the business spurious glamour, of course, of enormous companies norms and culture in countries where they currently doing bribery and corruption on a grand scale; operate. The report adds that such support should be nevertheless, they can have a very damaging effect on provided by properly trained officials and that smaller small companies seeking to open enterprises abroad. I embassies should have at least one official who is an had direct experience of this some years ago, when expert in local customs or cultures who can contact two friends of mine wanted to set up a very small officials of foreign government departments on behalf enterprise in an Asian country. They kept meeting of companies facing problems in this field. In its enormous obstacles, from their point of view. They formal response to the Select Committee’s report in never knew whether the rules they thought had obeyed May 2019, the Ministry of Justice, to its credit, endorsed would suddenly be changed and a little payment would these helpful suggestions. be required. In the end, because they were so keen, they won through, but I am certain that many small The ministry’s response also stated: enterprises would not continue to the end, and that is “The DFID-funded Business Integrity Initiative … is currently a great pity. undertaking pilot work in Kenya, Mexico and Pakistan”— I had experience of this myself. To my astonishment, countries in which I have done business— they needed the signature of a local official on some final piece of paper before they could set up in business. “… to identify appropriate ways to support UK companies I was taken up six flights in great heat, where we were … operating in these markets and provide new guidance and tools received by the said official, and when a large bottle of for staff in post.” whiskey was handed over, the document was signed. It further stated that Slightly later in the afternoon, when he said that he was going to take us out for lunch, we found that my “as evidence from the … pilot emerges, DIT will consider how to include business integrity work in its future activity”. friends were actually paying for lunch for this chap and his cronies. He actually had the gall to say, very I would be grateful if the Minister could update the proudly, that there was no corruption in his neck of Committee on the progress of this pilot. What lessons the woods, so I suspect that this kind of thing is pretty have been learned and what measures have since been pervasive and very difficult to deal with. introduced as a result of the knowledge gained? That is why I so applaud the point made by the noble Those of us who supported Brexit were promised Lord, Lord Rogan, I think—or one of our number—who that it would allow the UK business community to spoke about the role of embassies in helping small and access new markets in all parts of the world that were medium-sized companies with this kind of problem. It previously either fully out of reach or difficult to get is not simply that the staff should have expertise, it is into. I hope that those commitments still ring true. If also important that they actually go out and talk to Brexit is to be the success that we all hope it will be, no local officialdom to try to get them onside. It is clearly matter which stance noble Lords took in relation to very difficult for one small company to get anything the referendum, it is critical that UK businesses are done, but if it can rely upon embassy staff to have given proper, professional advice and guidance about much greater clout, this would be considerably helpful. those markets with which they may not be sufficiently I commend this and I want to know from the Minister familiar. The Select Committee in its excellent report how many people have this expertise in the various has clearly identified this need. Once again, I commend embassies, and how much work they are doing. That is it for its work. extremely important. GC 345 BriberyAct2010:Post-legislativeScrutiny[3 FEBRUARY 2021] BriberyAct2010:Post-legislativeScrutiny GC 346

Turning closer to home, I am also concerned that mens rea. I listened with interest to the noble Lord, there are not sufficient people with real expertise and Lord Stunell, as he drew his analogy with a captain understanding of the very complicated nature of crime and escaping all liability as his ship went down. I share his corruption, which is so widespread even now. So, I was discomfort with this situation. very disappointed when one of our recommendations, The committee made no recommendation on the that the City of London Police’s Economic Crime issue of vicarious liability, but neither did it rule it out. Academy should be given additional resources, was It was looking towards the report of the committee rejected. We also recommended that every police force the Government had already established to examine should have at least one senior officer with specialist corporate liability for economic crime. Indeed, when training in dealing with bribery and corruption. I the Government published their response to this Select should be very interested to know whether this has Committee report, in May 2019, they said that the come about and, if not, why not. It has unfortunately issue of vicarious responsibility was under review, and been, as has been said, some time since the report was their response would be issued “shortly”. That was in published. I hope the Minister will be able to tell us May 2019. “Shortly”, turned out to be 18 months later what other actions the Government have taken since and, after such lengthy deliberation, the Government to deal with the particular problems that we raised, so concluded that the call for evidence on corporate that we can be assured that the Bribery Act, so excellent criminal liability was inconclusive.They therefore proposed in itself, is fully implemented. to ask the Law Commission to examine the issue and report on the options by late 2021. By any standards, 3.54 pm this looks like kicking a difficult issue into the long Baroness Wheatcroft (CB) [V]: My Lords, it is a grass. pleasure to follow the noble Baroness, Lady Fookes, However, the evidence was not in everyone’s view who, after more than 50 years of continuous service in inconclusive. Three-quarters of respondents to the Parliament, is deserving of everyone’s attention when call for evidence agreed that the identification doctrine she speaks. I also thank the committee for its work in inhibited holding companies to account for all economic producing this report and the noble and learned Lord, crimes. The noble Lord, Lord German, called, earlier Lord Saville of Newdigate, for his introduction to this this afternoon, for a new Select Committee report into afternoon’s proceedings. Given the believed scale of vicarious liability—I would be very interested to hear bribery on the international stage, either the Act is the Minister’s response to that. I would also like to proving incredibly successful and, as the noble Lord, hear his view on why there has been such reluctance to Lord Gold, said, frightening many companies into address the issue of vicarious liability, when it is quite honesty, or bribery is going undetected. clear that larger companies are not being held to As the report points out, bribery is a crime that is account in the way that smaller companies are, because generally detected only when it goes wrong. I was the people at the top are able to dodge the issue. therefore concerned by the comment in the report that Finally, I raise again, as have others, the issue of the suspicious activity reports have very little follow-up. Government’s anti-corruption champion. This is not, by Companies know when competitors seem to be enjoying any standards, a high-profile position. Will the Minister disproportionate success: if they report suspicious tell the Committee whether the current incumbent, activity, that report should be followed up. Will the John Penrose MP, needs greater powers if he is to be Minister comment on how the follow-up of suspicious an effective champion of anti-corruption, both in activity reports could be improved? If that were done, government and in business, as his job description says? perhaps we would see more cases of bribery come to court. 4 pm The committee’s report was largely positive about Lord Bhatia (Non-Afl) [V]: My Lords, in November the way the Bribery Act is working. It welcomed the 2009, the then Bribery Bill was introduced in the refusal to allow facilitation payments, and I concede House of Lords. Its purpose was to reform and update that while this can disadvantage British business in bribery and corruption legislation. This included creating many markets, it is impossible to be, as the noble and offences for offering, promising or giving an advantage— learned Lord, Lord Mackay, once said, “a little bit bribing another person—and requesting, accepting or pregnant”. Facilitation payments are bribery, however agreeing to receive an advantage: being bribed. Both common they may be in some countries, so this country offences carry the same maximum penalty of 10 years’ is right to rule out bribery of any kind—unlike the United imprisonment and/or a limited fine for individuals, States, for instance. I also agree with the committee’s with offences relating to commercial organisations endorsement of deferred prosecution agreements. It carrying a maximum penalty of a limited fine. In seems that these are proving effective in persuading addition to the UK, the jurisdiction scope of these companies to own up to partial failings and improve offences covers those which took place either partly or standards for the future, while not preventing prosecution entirely outside the UK, providing that the alleged of individuals. perpetrator of the offence is a British citizen or is The aspect of this report on which I shall concentrate considered to have close connections to the UK. my remaining remarks is that of vicarious liability for On 17 May 2018, the House of Lords Select Committee companies. The noble Baroness, Lady Bowles, was on the Bribery Act 2010 was established to conduct a eloquent in her criticism of the way prosecutions for post-legislative review of the legislation. The House of bribery have hit the small business sector rather than Lords recommended that the committee focus on several the large. The issue is that of the identification principle: areas around bribery, including whether the Act has that the controlling minds of the company do not have led to stricter prosecution of corruption conduct or a GC 347 BriberyAct2010:Post-legislativeScrutiny[LORDS] BriberyAct2010:Post-legislativeScrutiny GC 348

[LORD BHATIA] I looked at this report, not because I was on the higher conviction rate in the reduction of such conduct. committee—I was not—but from the aspect of exporting. Can the Minister state whether the directors of commercial I have been involved in exporting all my life since organisations can be imprisoned instead of the company leaving Cambridge with a decent degree in economics paying the higher fine? and having had the privilege to listen to the lectures of Professor Walt Rostow on his stages of growth. I lived 4.02 pm in India and Sri Lanka in the mid-1960s, working for Lord Bradshaw (LD) [V]: My Lords, I was not a the Reckitt and Colman group as a marketing manager. member of the committee, so I have had to rely on In the 1960s, I wrote a pamphlet called Helping the reading the documentation provided. On reflection, Exporter with one of our colleagues, my noble friend the revision down the line that the noble Baroness, Lord Vinson. On entering Parliament, I joined the Lady Fookes, called for is probably necessary, because All-Party India Group and the All-Party Pakistan a lot of issues have been placed before the Grand Group, and started the All-Party Sri Lanka Group. Committee today. The reputation of the country for Later on, I started the All-Party Maldives Group. In honesty and straight dealing is not improving; anybody the following years, I travelled and had negotiations who thinks so is probably deluding themselves. It is and discussions with the rest of south-east Asia, important, however, that our reputation is restored; particularly Singapore, Malaysia and Indonesia, which we should not be complacent when we are told in debate I continue to do. that we are slipping down the world’s league tables. I congratulate the committee on the depth of its The issue of what is to succeed the European arrest analysis. The Government’s responses are clear in warrant is very important. There are criminals waiting what the response is but lacking, as I will indicate in a to come here in the knowledge that they will probably few seconds. It is a great pity that a work of this nature be beyond the reach of the law. The problems in the gets so little reporting in the major national press, court system to which the noble and learned Lord, particularly the Financial Times and other business Lord Woolf, referred are a scourge on the country. The publications. I urge the House authorities to get a grip fact that a criminal trial cannot now be arranged in on this issue; it is not a new issue but it needs to be less than about two years is a real indictment, because attended to. justice delayed is justice denied. I will focus my comments on small and medium-sized However, I want to speak particularly about the companies. They are vital to our future as a country police service, of which I have experience. To train and are experienced in the sense that many of them police officers to deal with issues such as fraud—you take part in trade visits, usually underwritten or promoted can choose anything you like; child abuse is another or organised by the relevant chambers of commerce. one—is a long-term commitment. Such officers are The ones that I think about are, obviously—I was very attractive to other people who would seek to an MP for the East Midlands—the Leicester and employ them. It is important that we take seriously the Northampton chambers, which are very active, and recommendation that the police service—particularly many others. the City of London Police service but all other police services as well—have people trained to look out for For those chambers of commerce—and I have all sorts of corruption. discussed this with the current people—as small and There are large problems about money laundering, medium companies, the comment that they make is on and the issue of vicarious liability needs attention. I focus. First, they do not think that our embassies or understand the mens rea issues, and I certainly agree high commissions, when they go out and visit whatever with my noble friend Lord Stunell that if the ship goes company they choose to go to, are well enough briefed. down, it is really quite regrettable if nobody above the I concur with that, as I travel to that part of the world rank of, as it were, able seaman gets prosecuted. and, in my judgment, Her Majesty’s Government now People look to people being prosecuted where they need to get a grip on it. Every embassy and high have done wrong. commission should have somebody very senior who is I would also like to encourage the use of DPAs to totally responsible for trade and development—and, encourage people to own up if they find that wrong within that, for how people should operate in the has been done, not necessarily by the directors of a context of the country where they serve. Our people company but by somebody within it. Finally, when the representing us on the ground need to be fully briefed Minister sums up, will he tell us how much time John on the Bribery Act and the implications for companies Penrose is devoting to his role as anti-corruption that come to seek their advice. Frankly, that is not champion? It seems to be an almost invisible role. happening, and it is time that we got a grip on it. Secondly, the UK has good trade associations, which 4.06 pm brief us politicians well when we talk about particular Lord Naseby (Con) [V]: My Lords, it is my privilege subject matters, and Her Majesty’s Government should to read this— provide specialist courses for them, covering all aspects of exporting—like the ECGD, which I have worked The Deputy Chairman of Committees (Lord Duncan with—particularly, in the context of this debate, on of Springbank) (Con): The noble Lord is very quiet; the implications of the Bribery Act. It would be no could he lean closer to the microphone? bad thing if the chief executives of trade associations were brought into the government departments and Lord Naseby (Con) [V]: Is that better? It will have given proper briefs and some structure to it all. Ideally, to be. they could use a business school to help in this project. GC 349 BriberyAct2010:Post-legislativeScrutiny[3 FEBRUARY 2021] BriberyAct2010:Post-legislativeScrutiny GC 350

Thirdly, small and medium companies are very rule in Scotland is that no prosecutions whatever can important, but their management structures for exporting take place unless in the name or under the authority of are likely largely to consist of an export team with an the Lord Advocate. I recall having to point this out on export director or manager with the involvement of several occasions during my time in the Crown Office the chief executive. These are busy people and, again, as an advocate depute, to the great irritation of bodies the department needs to make simple, short and efficient such as the then Customs and Excise, which were used courses for export directors and managers—not just to handling these matters themselves in England. That online and not just saying that something has been is how the law works in Scotland, and it has long been posted in some note somewhere, which they have recognised that there is no need to say anything about to find. They need something good and easy and a it in a UK statute. helpline managed by an experienced official, not somebody I see great merit in the recommendation that the who just reroutes them somewhere else. I realise that, Secretary of State for Justice should amend the guidance with Covid and so many staff working from home, it is published under Section 9 of the Act so that it deals not easy, but it has to be addressed—and, in my adequately with the law and practice in Scotland, and judgment, all those involved in exporting need to that the websites in use on both sides of the border come into the office at least once a week. should be updated so that they each refer to both sets The department has been seeking collaborative of guidance. As the guidance is for use in all parts of approval on export advice since May 2019. What came the United Kingdom, it is important that it should out of the pilot scheme? That is so important. take account of the differences in law and practice I conclude with two comments. First, the City of there. I note, however, that no mention is made of London Police get 2% of the police budget but at least Northern Ireland in this paragraph, nor indeed is 25% of fraud crimes, so they need a bit more money to Northern Ireland mentioned at all in the Ministry of see that through. Finally, I wholeheartedly support the Justice’s quick start guide. I hope that the Minister will comments made by the noble Lord, Lord German. feel able to suggest to the Secretary of State for Justice that he should look at the position in Northern Ireland 4.13 pm too when he considers that recommendation. Lord Hope of Craighead (CB) [V]: My Lords, I very As for what the committee says about civil settlements much welcome this report, and congratulate warmly in Scotland—the alternative to the deferred prosecution all those who have contributed to it. As it happens, I system in England and Wales—I do not wish to take was a member of the Liaison Committee when it anything away at all from what my noble and learned considered on two occasions whether to recommend friend Lord Saville said about this matter in his this Act for post-legislative scrutiny. On each occasion introduction. However, the differences between those there were a number of other statutes on our list, and two systems are perhaps less troublesome than the we could recommend only one of them. I was glad committee seems to have thought in commenting on that on the second occasion my suggestion that this the Scottish position. Take, for example, the suggestion Act should be put forward for scrutiny was agreed to, that judicial supervision should be regarded as a vital and I am very pleased with the result. element for the conduct of civil settlements in Scotland, One concern that we had on the Liaison Committee which does not happen just now. This takes me back was whether UK businesses were being put at a to the golden rule that I mentioned earlier. Another competitive disadvantage by the standards set by this way of putting it is that the Lord Advocate is the legislation in obtaining foreign contracts, a point made “master of the instance” in Scotland; he is not subject by the noble Lord, Lord Gold. I recall similar concerns to the direction of the courts as to whether a prosecution being expressed at a conference that I attended in should be brought, and it is entirely up to him to Hong Kong shortly after the Act was brought into decide whether or not to settle a case without resorting force. Corporate hospitality and facilitation payments to prosecution and, if so, on what terms. Scotland were mentioned as areas of particular difficulty. I was does not have sentence bargaining, but agreements particularly pleased to read that, of the 100 witnesses about pleas and settlements are within the discretion from whom the committee received evidence, not one of the prosecutor. I doubt whether anyone in Scotland had any major criticisms of the Act, and its structure would want that system to brought under the supervision and the offences that it created were almost universally of the judges. praised. Comments that were quoted were remarkably positive in their support. I take from all of this that, by As to consistency, the lack of a statutory basis for and large, the warnings given at the outset—I suspect the scheme does not trouble me, given the way in to try to undermine what this Act stands for—have which these matters are handled by the Crown Office not been borne out by experience. That is very good in Scotland, although a statutory basis would be needed news. for a financial penalty if this was thought appropriate. However,I see merit in the points made by the committee I shall comment briefly on what the report has to about the ways in which the scheme lacks transparency say about Scotland. Questions of policy are, of course, and the need to improve the quality of the information for the Scottish Ministers. Nevertheless, I welcome on the Crown Office website. I am sure that the that fact that the committee took the trouble to examine Lord Advocate will pay close attention to what is said the position in Scotland as part of its scrutiny review.I am about this in the report. glad that the committee saw no reason for any change in the law and practice regulating the commencement Finally, I noted the remarks of the noble Lord, of proceedings in Scotland. With the exception of Lord Empey, and his concern about the differences that private prosecutions, which are very rare, the golden might emerge between the law and practice in Scotland GC 351 BriberyAct2010:Post-legislativeScrutiny[LORDS] BriberyAct2010:Post-legislativeScrutiny GC 352

[LORD HOPE OF CRAIGHEAD] In response to the recommendation from the and that in England, Wales and Northern Ireland in Committee regarding training and awareness of the how the Act is administered. I doubt very much that act, the Government said there was not enough evidence that is a matter for real concern. The terms of the to commit to providing additional resources to the statute are perfectly clear and the prosecutors themselves City of London Police’s Economic Crime Academy are well aware of the need to maintain consistency to expand its training programme. The noble Lord, throughout the United Kingdom in dealing with these Lord Hain, asked about resources. What has happened important matters. since the publication of the Government’s response? Has there been a change of heart, and do they now 4.19 pm intend to give resources to the Economic Crime Academy for training purposes? Baroness Ritchie of Downpatrick (Non-Afl) [V]: My Lords, it is always a pleasure to follow the noble and On supporting companies on corruption issues in learned Lord, Lord Hope of Craighead. I congratulate the countries to which they export, the Government the chair of the committee, the noble and learned said that DfID’s business integrative initiative was Lord, Lord Saville of Newdigate, on securing this undertaking pilot work in Kenya, Mexico and Pakistan. debate, and congratulate him and his committee on a According to the Government, the Bill aims to comprehensive report on the post-legislative scrutiny “identify appropriate ways to support UK companies operating of the Bribery Act, for which the committee has had in these markets” to wait nearly two years for the Government’s response. and will provide new guidance and tools to staff in It is important that the Government use the powers these companies. Has this role been taken on by the within the Bribery Act effectively to tackle economic FCDO with the dissolution of DfID? Has that new crime and the corrosive effect that corruption has on guidance been provided? companies, individuals and society in general. This Many questions have been posed to the Minister, Act encourages companies to adopt honesty in all but we are undoubtedly better served by the operation their dealings. of the Bribery Act and by the committee’s report and The committee wisely focused on several areas around the Government’s response to it, all of which have bribery, including whether the Act had led to enormous potential. The bottom line is that companies “a stricter prosecution of corrupt conduct, a higher conviction have no real choice but to enforce a stringent anti- rate and a reduction in such offending.” corruption regime to minimise their risk of conviction It is remarkable and excellent that not one witness had and uphold proper standards of integrity and ethics in major criticisms of the legislation. However, the report their business operations. expressed concern at the slow pace of bribery investigations, with a number of witnesses criticising 4.26 pm the time it had taken for bribery charges to be brought Lord Thomas of Gresford (LD) [V]: My Lords, as a and for cases to reach trial. member of the committee, I, too, pay tribute to the What is also interesting is that companies were careful chairmanship of the noble and learned Lord, concerned about the potential for the legislation to be Lord Saville, and I thank Michael Collon and his staff prejudicial to businesses in the operation of their and the expert advisers for all the hard work they work, but the committee found that this was not the put in. case. The noble Lord, Lord Gold, referred to that Bribery is an offence which occurs in the shadows. today and in the article he published on his blog some It is a transaction which brings advantages to both time ago. parties, neither of whom can complain, whether satisfied Recommendations dealt mainly with the or dissatisfied with the corrupt bargain. Its detection implementation and enforcement of the Act, urging may well depend on a chance: an auditor stumbling on the director of the Serious Fraud Office and the it in the course of an audit, a report from a whistleblower, DPP to speed up investigations into bribery and improve or a complaint from a competitor. Nevertheless, like communications with those placed under investigation all corruption, it can be highly corrosive and potentially for bribery offences. The Government response centred damaging. Even when the active agents are identified, on the committee’s concern surrounding the “slow the individual in the higher echelons of a corporate pace” of bribery investigations, and they noted that body who authorised or turned a blind eye to what several measures had been introduced within the specialist was going on may still be too hard to pursue. Hence, it fraud division of the Crown Prosecution Service to is justifiable to introduce the concept of corporate “ensure that cases progress effectively”. criminal responsibility, although the company itself is That included bribery cases now having two allocated a legal person which can neither speak nor hear, much prosecutors, and legal managers being provided with less form an intention. weekly data on pre-charge cases, such as bribery, to I was involved in the pre-legislative committee prior ensure cases are regularly reviewed and progressed. to the passing of the Bribery Act in 2010. The policy How many cases have progressed to prosecution and which emerged was to create a climate in corporate conviction or release since these appointments, and business which would lead to the elimination of bribery how many are still awaiting trial and conviction? Has altogether. One way of doing that would be, as my noble all this led to zero tolerance within companies and within friend Lord Stunell argued, to make a corporate body the judicial system of bribery offences and economic vicariously liable for crimes committed by its employees crime? I also ask the Minister where the new Financial or agents. But it could not be right to criminalise a Services Act and the National Security and Investment company with absolute liability, and therefore there Bill fit into the existing Bribery Act. would have to be a right to a statutory defence—for GC 353 BriberyAct2010:Post-legislativeScrutiny[3 FEBRUARY 2021] BriberyAct2010:Post-legislativeScrutiny GC 354 example, that the company had taken all reasonable On investigations, the report points to the fact that steps to prevent bribery and, once its existence were only 12 out of 45 police forces had taken advantage of known, had not covered it up. specialist training in the Bribery Act, and it recommended that a senior specialist investigator trained in the provisions Of course, if there is sufficient evidence that the of the Act should be employed in each of the 45 forces. director or manager of a company—the captain on As my noble friend Lord Bradshaw said, training is a the bridge of the sinking ship—was complicit in bribery, long-term commitment. Can the Minister tell us whether “wilfully blind”, as my noble friend Lord Stunell said, this recommendation has as yet been taken up? or if he covered it up, he will be charged accordingly under Sections 1, 2 or 6 of the Act or with conspiracy. When guilt in a case against a corporate body depends on whether it has employed adequate procedures, For corporate criminal responsibility, however, it the field to be covered will be much larger than establishing was thought preferable not to introduce vicarious the mere fact of an incident of bribery. The report criminal responsibility but to encourage a company to calls for investment in artificial intelligence, document put in place systems of training and supervision and sifting and similar modern technologies which can to frame the criminal offence as “failure to prevent handle what have been in some of the cases millions of bribery”. Thus, the company is not prosecuted and documents. Like my noble friend Lord German, I would convicted vicariously for the bribery which its agent welcome the Minister’s report on the Government’s has committed. As an inanimate legal person, the up-to-date position on greater investment in these areas. company can have no knowledge of the offence, nor DPAs have been a success under strict judicial can the company be convicted positively of failing to control. However, I underline the one concern of the have adequate procedures in place, whether or not noble and learned Lord, Lord Saville. In all criminal bribery has been proved. An offence delineated in proceedings, lesser sentences encourage pleas of guilty; those terms would put the onus on the prosecution to defence counsel always brings this to the attention of a prove that the company did not have adequate procedures. defendant at the earliest moment. Self-reporting should Under Section 7 of the Act, the burden of proof is similarly lead to similar discounts otherwise there is where it ought to be. If bribery has taken place on no benefit in self-reporting. I do not propose to debate behalf of a company, the onus under Section 7 is on whether the concerns expressed about co-operation in the company to show, as a defence to the charge that it criminal investigations with the EU after Brexit have failed to prevent it, that it had adequate procedures to been met by the trade and security agreement, save to prevent bribery in place. My noble friend Lady Bowles say that they manifestly have not. But that is surely for was concerned that the phrase “adequate procedures” another day. is too low a bar for a defendant company to surmount. I hope that the work of the committee and the However, I am happy that the decision as to what is report it has produced has given direction to the adequate is one for the jury, which imports the investigators and prosecutors of bribery. I hope it also standards of the ordinary citizen, not the standards of gives confidence to the business community that there the City. is in place an effective weapon against bribery, and The investigation carried out by the committee that it has encouraged the climate of honest and demonstrated that the architecture of the Bribery Act successful business that was intended without being has been well conceived—a tribute to the noble Lord, too onerous a burden of time and cost, despite the Lord Bach, in fathering it, and to my noble friend many naysayers, to whom the noble and learned Lord, Lord McNally in acting as its midwife. Its definition of Lord Hope, and my noble friend Lord McNally referred. what constitutes bribery and its use of the defence of My noble friend Lord Bradshaw referred to the UK adequate procedures are well received and applauded slipping down the league table, and money laundering internationally. It is regarded as the gold standard. is a real issue. However, in the field of bribery, this Act No significant legislative changes have been recommended. has served to uphold our reputation for fair dealing across the world and, as the noble and learned Lord, Where concerns are expressed in the report, they Lord Hope, said, without commercial disadvantage. refer to advice, delay in investigation, and resources. Guidance could be improved in important areas, such 4.35 pm as facilitation payments.But the idea that the Government Lord Davidson of Glen Clova (Lab) [V]: My Lords, I should set up an advice bureau to authorise the conduct declare an interest as a Queen’s Counsel in practice in of an individual or a company before a transaction Scotland, whose work from time to time involves cases takes place was rightly rejected by the committee. where the Bribery Act is required to be considered, Nevertheless, consular services to advise on overseas and as a former Advocate-General in post at the time trade customs and norms should be strengthened, as of the Act’s introduction. I also take this opportunity the noble Baroness, Lady Fookes, emphasised. to congratulate the Minister on his appointment as An unintended consequence of the Act was that Advocate-General, to which he brings not only his corporate sponsoring of events took a hit: sporting considerable professional ability but a calm and measured and musical events in particular. It is a matter of approach. balance and common sense, as both the noble Lord, The noble and learned Lord, Lord Saville of Newdigate, Lord Gold, and the noble and learned Lord, Lord Morris, and the committee, are to be complimented on this noted, which defies statutory definition. However, the excellent review of the Bribery Act, as other noble Lords committee concluded that guidance could be improved have observed. It is gratifying that the Act, introduced by the inclusion of examples to illustrate what is or is by the then Labour Government, is now so well regarded not acceptable. I am sure that that would be helpful. by so many.It is fair to say that it received a considerable GC 355 BriberyAct2010:Post-legislativeScrutiny[LORDS] BriberyAct2010:Post-legislativeScrutiny GC 356

[LORD DAVIDSON OF GLEN CLOVA] most bribery offences, that jurisdictional differences amount of criticism as being a shackle on British might be thought somewhat undesirable in this area, international business at its introduction—a point that given that it applies a UK statute. I echo the concern was observed by the noble Lords, Lord Gold and of the noble Lord, Lord Empey. Lord McNally, and which was picked up by the noble One further criticism that is levelled regarding the and learned Lord, Lord Hope of Craighead. Act in practice is the paucity of prosecutions. One The committee notes that there have been a number immediately understands the difficulty in gathering of positive assessments of the Act which chime with reliable evidence and carrying forward the question of the general view of the it as broadly perceived. The resources, a matter that my noble friend Lord Hain noble and learned Lord, Lord Woolf, added his weighty stressed as an important requirement. My noble and and positive commendation, followed by the noble learned friend Lord Morris also identified this, as did Baroness,Lady Ritchie,with her eloquent commendation. the noble Baroness, Lady Fookes, and the noble Lord, Lord Bradshaw.Bribery is, by its very nature, covert—in The range of topics covered by the committee’s report the shadows, as the noble Lord, Lord Thomas, put it, is extensive, so I will confine myself to only a few with perpetrators often taking steps to disguise the matters. The first of these arises not from the Act but crime as innocent activity. What can be less easy to is scrutinised by the committee: the success of deferred understand is the absence of prosecution when, in civil prosecution agreements. I share the commendation of proceedings, bribery has been uncovered and held by the noble and learned Lord, Lord Morris, of the noble the court to have occurred to the civil standard with a and learned Lord, Lord Garnier, for having pushed high level of confidence. It is unclear how often this this innovation forward. Similarly, Sir David Green, as situation arises, but anecdotes suggest it has arisen former director of the Serious Fraud Office, can be from time to time. Perhaps the Minister may even have congratulated on putting the DPA into practice very encountered this problem in his own practice. This is a effectively. While it is not unknown for the SFO to be variation on the point made by the noble Lord, Lord Gold, criticised, it should be given considerable credit, as the about DPAs and the lack of individual prosecution. Is noble Lord, Lord German, observed, for its innovatory the Minister aware whether any research has been use of artificial intelligence in the Rolls-Royce case, carried out to identify such occurrences? If so, is there identified by the committee at paragraph 72. What any explanation for this apparent dissonance? might have taken many months if not years of document analysis was reduced to weeks and greatly accelerated The area of corporate hospitality, which perhaps the resolution of a highly complex case. It is encouraging received the most criticism at the time of the introduction to see that the SFO is now deploying AI-powered of the Act, remains, as the report indicated, an area analysis across its new casework and embracing new where greater clarity is desired, where context is critical technology ahead of many in the private sector. to assessing the appropriateness of a level of hospitality. The committee correctly recommends clearer guidance One specialist in bribery law, Eoin O’Shea, now at by way of examples being given. Is the Minister committed CMS, who gave evidence to the committee and who is to leaving the guidance as it is, or is he really content, a supporter of the Act, has commented that DPAs as the Government’s report suggests, that clarity may may reduce the opportunity for senior courts to grapple be outsourced, in a way, to Transparency International? with the key concepts from the legislation: for example, If outsourcing to Transparency International is favoured, the defence of adequate procedures. Is the Minister able there are certainly a number of areas where TI offers to say whether the statutory guidance will be amended guidance to the Government. to equiparate “adequate” to the familiar “reasonable in the circumstances” approach, as the committee and Hospitality, in its various forms, is of course one the noble Baroness, Lady Bowles, emphasised? area that comes close to the conduct of government. The very first words of the report state: What may be less encouraging are the observations made by the committee on the corresponding Scottish “Societies are built upon trust.” regime to DPAs. Most Scots lawyers would be opposed Nowhere is trust more important but less prevalent to a proposition that Scots law should always copy the today than in government. Transparency International laws and procedures of the southern jurisdiction. However, UK, in its recent report, Corruption and the UK, opined: the committee raises some clear and forceful criticisms “The corrosive influence of big money continues to undermine of the civil settlement regime in Scotland. the integrity of the UK’s political system.” I note that the government response identifies The noble Lord, Lord McNally,referred to TI’sperception that some but not all of these criticisms have been of a sliding of UK enforcement. The noble Lord, addressed. Having been a Scottish Solicitor-General Lord Empey, gave a caution to the position of London’s some two decades ago, I was conscious of a then reputation in the world and the noble Lord, somewhat overdeveloped resistance to transparency in Lord Bradshaw, added his concerns. the Crown Office. I had assumed that that resistance There is an insidious form of bribery that provides might have reduced substantially by now. hospitality and financial support in many forms, but The noble and learned Lord, Lord Hope, sees little which never expresses a direct quid pro quo; rather problem in the absence of judicial oversight of civil access, favours and influence are the implicit anticipated settlement, but is the Minister aware what reasoning reward, which may come all too easily. Does the lay behind the unwillingness of the Scottish Government Minister agree that such conduct should be criminalised to adopt judicial oversight of civil settlement? One to restore integrity to the political system? Should not might expect, given the international dimension of the definition of bribery be extended to cover such GC 357 BriberyAct2010:Post-legislativeScrutiny[3 FEBRUARY 2021] BriberyAct2010:Post-legislativeScrutiny GC 358 activity wherever it may arise? Does he agree with the At the same time, the Government also sought to chief executive of Transparency International UK, provide the private sector and affected companies with who in a press release of 21 September 2020 said: greater certainty and consistency around bribery and “To win back public trust, Parliament should legislate to the obligations on companies and businesses. It was remove the corrupting influence of big money from our democracy.”? hoped that this would ensure justice for those involved in or affected by bribery, and a reinforcing of proper 4.45 pm ethical conduct in commercial business and society in The Advocate-General for Scotland (Lord Stewart of general—a matter of culture to which many speakers Dirleton) (Con): My Lords, I thank the noble and today adverted. learned Lord, Lord Saville of Newdigate, for calling A further main policy objective of the Act was to the debate today in his capacity as former chairman of address issues raised in relation to our international the committee for post-legislative scrutiny of the Bribery anti-corruption obligations by putting in place an Act 2010. I also wish to thank him and all other effective mechanism for prosecuting bribery involving former members of the Bribery Act Committee for the foreign public officials, and to establish effective corporate important and comprehensive post-legislative review liability for bribery where it takes place. Perhaps most process, which they carried out between May 2018 and importantly of all, however, it was envisaged that the March 2019, before the publication of the official Act would support the Government’s wider strategy report. The breadth of issues covered in the committee’s for tackling international corruption by not only deterring report has led to the very interesting and lively debate and penalising bribery offences but encouraging and we have heard today. Finally, I thank all noble Lords supporting business to apply appropriate standards of who took part in this discussion. ethical business conduct. We will all agree that bribery is a very serious crime, In this regard, the Government had a specific objective and the importance of having a law for bribery which of combating the use of bribery in high-value transactions is clear, effective and robustly enforced is not in doubt in international markets and, in particular, in large-scale either. This Government remain committed to tackling public procurement or tendering exercises where the economic crime and see the Bribery Act as an important largest businesses operate and predominate. Although and effective tool in that endeavour. As the committee the legislation would ultimately apply to all companies makes clear in the report, however, the task of the falling within scope of the definition of the offence, it legislature is not just to make the law but to see was recognised that small and medium enterprises whether major legislation enacted is having the effect would not usually engage in the business environment it was designed to achieve; that is why scrutiny is so described above, so it was never envisaged that they important. would be the main focus of any enforcement activity. As we have discussed this afternoon, the main focus As the committee itself observed, however eagerly of the committee’s scrutiny centred on three areas. anticipated or well received a Bill may be, it is by no The first is whether the Act has indeed led to stricter means guaranteed that the resulting Act will live up to prosecution of corrupt conduct, a higher conviction those expectations. Fortunately—again, I endorse noble rate and a reduction in that behaviour. The second is Lords’ observations on the topic—the Bribery Act is whether UK businesses have been put at a competitive now recognised internationally as being the leading disadvantage in obtaining foreign contracts under the model, alongside the United States Foreign Corrupt stricter provisions of the Bribery Act and whether Practices Act, for effective criminal anti-bribery legislation. small and medium enterprises were sufficiently aware Moreover, the United Kingdom is recognised as one of the provisions of the Act. A further area is how far of the top four enforcers of the Organisation for deferred prosecution agreements have affected the conduct Economic Co-operation and Development’s convention of companies, both in preventing corrupt conduct and against bribery. Following the OECD’s review in 2017, investigating it once it has been discovered. the UK received a very positive assessment of its It is worth reminding ourselves why we needed the legislative framework. I hope that I will not be thought Bribery Act in the first place—a number of speakers complacent in that I cite these figures without specific today touched on this. Bribery was not reported as a reference, at this stage, to the observations about dropping high-volume crime in the days before the Bribery Act down the international league table, moving from the came into being, so it could be said that it was not gold standard to the bronze. born of a need to address an urgent domestic problem Alongside the praise received for being a successful of the day. However, in the face of growing criticism anti-corruption tool internationally, the Government’s by both domestic and international stakeholders, it own initial assessment was that the Act was performing was apparent that reform of the previous law on as Parliament had intended. Much of the evidence bribery was increasingly necessary to deal effectively submitted to the committee supported this, and with ever more sophisticated, cross-border use of bribery the Government are very grateful that no major in the modern world. The main objective in the criticisms were made, reflecting the quality of the Act development of the Act was therefore to provide modern in its drafting. While there is always a case for listening legislation which reformed the existing common law to suggestions about where there might be further and statutory offences of bribery by introducing a new improvement, the Government were again grateful for consolidated scheme of bribery offences designed to the committee’s positive assessment that the overall give the police, prosecutors and the courts an effective structure of the Act, the offences it created, its deterrent way of tackling bribery, whether committed at home effect, and interaction with deferred prosecution or abroad. I will return to the extraterritorial aspect of agreements are some of the main aspects which have the 2010 Act in due course. received almost universal praise. GC 359 BriberyAct2010:Post-legislativeScrutiny[LORDS] BriberyAct2010:Post-legislativeScrutiny GC 360

[LORD STEWART OF DIRLETON] process proved inconclusive, it is extremely positive The committee’s final report—which we have covered that we have had progress on the issue since the in detail this afternoon—made 35 conclusions and committee’s report—and indeed the Government’s recommendations around the implementation and response—was published. As I am sure many noble enforcement of the Act. Although the Government’s Lords are aware, the Law Commission has agreed to position on each recommendation was made clear in carry out an in-depth review of the current law on the response document, we will continue to consider economic crime. Work has already started on this, and and, where possible, explore opportunities for increasing I know that there is a good deal of support for the awareness of the associated guidance. However, I think work of the commission in this House. The delay it is clear that the Act is indeed working well and doing arises not out of any attempt to kick the matter into what it was intended to do. To illustrate this, I highlight the long grass, as one speaker said earlier—or at least a few of the successes of the Act as an effective referred to the possibility of it being interpreted as enforcement tool since its coming into force in 2011. such. It is a reflection rather of the polarisation of Since that time, the Serious Fraud Office has secured views with which we were presented. its first conviction after trial for corporate offences The terms of reference for the project have been involving bribery of foreign officials and its first guilty published on the Law Commission’s website but, in plea by a corporate body for an offence under Section 7— summary, it is envisaged that the first part of the process the provision that we have discussed. Nine deferred will be to draft an options paper,in which the commission prosecution agreements have been put in place with will analyse how effective the law is and where it could United Kingdom companies since their introduction be improved. The commission will then present various in 2014, six of which are for overseas corruption offences. options for reform of the law, so that we can continue This is in addition to the imponderable, impossible to ensure that corporate entities can be held appropriately to quantify, deterrent effect that the Act continues to to account. Initial findings are expected later this year, have on those who would seek to commit bribery and it is hoped that this will lead eventually to the end offences. The Act has had a positive impact in helping of the long-running and often contentious debate on businesses and corporations to reshape their culture. whether further changes to economic crime law are The Government are not complacent over issues necessary. This will include consideration of a potential relating to economic crime, which remains a key priority extension of the “failure to prevent” offence set out in for the Government. We are committed to exploring the Bribery Act, so I am sure that it will be of great ways to continue to improve our response to this type interest to all former committee members and to those of offending. Weshould not forget that we have achieved who have contributed to our debate today. some other important milestones following the The chairman of the committee sought specifically introduction of the Bribery Act itself. The Government’s to learn about developments since the conclusion of anti-corruption strategy, launched in 2017, provides our departure from the European Union. The safety the framework for their domestic and international and security of our citizens is the Government’s top priorities on corruption and details each of the policies priority.Wehave reached an agreement with the European and actions being taken forward to combat that evil Union, which delivers a comprehensive package of up to 2022. Despite the challenges that last year brought capabilities that will ensure that we can work with to every aspect of life, the year 2 update on that counterparts across Europe to tackle serious crime, strategy was published, as expected, in July. terrorism and other offences, protecting the public Speakers this afternoon have made reference to the and bringing criminals to justice. This includes fast-track provisions for training. The multi-agency National extradition arrangements similar to those in place Economic Crime Centre, based in the National Crime between the EU and Norway and Iceland. These Agency, has been established to co-ordinate and task arrangements are intended to be as fast and effective the United Kingdom’s response to economic crime, as those under the European arrest warrant, while including high-level fraud and money laundering. For providing greater safeguards for those who are arrested. the first time, the centre encourages and facilitates closer ties between its partner organisations in law The agreement also puts in place arrangements that enforcement and the regulated sector, including the will simplify and speed up co-operation with EU member Financial Conduct Authority, Her Majesty’s Revenue states on mutual legal assistance and asset freezing and Customs, the City of London Police, the Home and confiscation, building and improving on the relevant Office, the Serious Fraud Office and the Crown Council of Europe conventions. This is the first time Prosecution Service, all of which played an important that the EU has agreed such a comprehensive agreement part in the committee’s review. The Crown Office and with a third country in this area. I recognise that, in Procurator Fiscal Service in Scotland also contributed. the case of economic crimes, effective extradition arrangements will be important to ensure that we Another issue that was highlighted by the committee prosecute individuals effectively.Wehave these streamlined was the lack of progress on next steps following the arrangements based on the EU’s surrender agreement corporate criminal liability call for evidence in 2017. I with Norway and Iceland. am conscious of the criticism made by a number of noble Lords about the delay that has occurred since We are no longer part of the EAW. These new that date. This is an extremely complex area of law, arrangements provide stronger protections for individuals, and the Government received a number of diverse and including provisions that make it clear that a person often conflicting views to the call for evidence. This cannot be surrendered if their fundamental rights are resulted in a considerable delay to an announcement at risk, or extradition would be disproportionate, or on the way ahead. Although the results of the original they are likely to face long periods of pre-trial detention— GC 361 BriberyAct2010:Post-legislativeScrutiny[3 FEBRUARY 2021] BriberyAct2010:Post-legislativeScrutiny GC 362 all evils identified under the EAW scheme. They also is somewhat fluid and dynamic in terms of measures allow the UK courts to refuse a warrant if they believe coming into force. As we will discuss later, the types of that it has been issued to prosecute someone because offence with which the Act is concerned and the of their political views, and to guarantee rights of investigations put forth under it have a very long lead access to translation, legal advice and consular assistance time. for British citizens arrested abroad. The noble and learned Lord, Lord Morris of Aberavon, The deal that the Government have reached in called for figures on the operation of the bodies charged relation to our departure from the European Union with investigation of crimes of this sort. I can advise enables arrangements with Europol and Eurojust that him and others that the gross budget for the Serious reflect the scale of our contribution to these agencies Fraud Office went up from £44.6 million in the financial and facilitate effective operational co-operation. It enables year 2009-10 to £60.6 million in 2018-19, that being the fast and effective exchange of national DNA, the last year for which figures are available. I regret fingerprint and vehicle registration data via the Prüm that I do not have figures for the Crown Prosecution system to aid law enforcement agencies in investigating Service or other agencies. I shall endeavour to discover crime and terrorism. We have agreed fast and effective those and to write to the noble and learned Lord. I can arrangements for exchanging criminal records data tell him that the Government are committed both to through shared infrastructure and have ensured that the Serious Fraud Office and to the maintenance information can be exchanged for crime prevention of the Crown Prosecution Service. We will always and safeguarding purposes.Wehave secured the continued ensure that those bodies are fully supported to deliver transfer of passenger name records from the EU to their objectives, and they make their financial details protect the public from terrorists and criminals. As I available year on year. said, we have also put in place arrangements that will My attention is drawn to the clock. I agree with the simplify and speed up co-operation with EU member submission by the noble Lord, Lord German, that states on mutual legal assistance and asset freezing artificial intelligence will be an important and developing and confiscation, building and improving on the relevant tool. Council of Europe conventions. Perhaps I may turn to some of the thoughtful On advice given to small and medium-sized enterprises, submissions made by speakers in the debate. The noble the Government have sought to group matters together Lord, Lord Hain, referred to specific examples and on a specific landing-site website. That means that endorsed the essay of the noble Lord, Lord Gold, on inquiries on this matter will come to a central site and corporate culture. The noble Lord spoke about the there will be easy links to places where information importance of adequate resourcing and questioned and advice can be discovered. the Government’s commitment to the operation of the The role of the anti-corruption champion was raised Act abroad and the enforcement of anti-bribery measures by a number of noble Lords. Mr Penrose MP holds abroad. I draw to his attention Section 12 and emphasise that office; he is a prime ministerial appointment and that the Bribery Act is an extraterritorial matter. Persons reports to the Prime Minister. The anti-corruption can be prosecuted where they have a close connection champion is committed to his role, which can be seen with the United Kingdom, and it does not matter if by the fact that he has weekly meetings with the joint acts are committed abroad. anti-corruption unit and regular meetings with Ministers The noble Lord’s observations about London as a and businesses. That matter was raised by the noble centre for money laundering are matters of urgent Lord, Lord Bradshaw, as well as by my noble friend concern, but I sense that they also reflect something of Lord Hodgson of Astley Abbotts. London’sparticular pre-eminence and status as a financial My noble friend Lord Hodgson also made reference centre. to the committee’s scrutiny of the Skansen case. I I agree with the observations of the noble Baroness, share his concern about aspects of the prosecution in Lady Bowles,as to the importance of deferred prosecution that matter, and I am sure that the practice will have agreements. I advise her that guidance and indeed developed and will continue to develop so that what practice emphasise that the existence of a deferred might be seen as errors in the prosecution’s approach prosecution agreement does not bar prosecution of will not be made in future. individual persons who were themselves responsible The noble Lord, Lord McNally, referred to his gift for acts of bribery. We encourage the prosecution of from the outgoing Labour Government of the 2010 individuals. That has taken place already and is taking Act. I am happy to say that the noble and learned place in the context of DPAs. Lord, Lord Davidson of Glen Clova, my predecessor As well as contributing an article which attracted in this role, was responsible for that, and I thank him positive views from members of the committee, my for his kind words. I am happy that the gift to the noble friend Lord Gold also spoke. I am happy to noble Lord, Lord McNally, on coming into post was endorse his question and say that we will keep under merely the 2010 Act and not a case of whisky—a review the possibility of extension of Section 7 of the reference to the sensible observations from the noble 2010 Act into other areas. and learned Lord, Lord Morris of Aberavon, about I hope that I have already reassured noble Lords who the nature of facilitation payments and the obviousness mentioned the risk of complacency. It was the noble of bribery. Lord, Lord Stunell, who spoke of our decline from the I have made reference to funding concerns and gold medal position to the bronze medal position on cited figures for the Serious Fraud Office and its the podium. I suspect that this will be a matter which increase in budget. GC 363 BriberyAct2010:Post-legislativeScrutiny[LORDS] BriberyAct2010:Post-legislativeScrutiny GC 364

[LORD STEWART OF DIRLETON] My observations in relation to the last point follow his I am grateful to the noble Lords, Lord Rogan and remarks that the Government are not a trade body in Lord Empey, and my noble friend Lord Naseby, who relation to the provision of advice to members. spoke from experience of business abroad. The noble I suspect that I have gone over time and I apologise Lord, Lord Rogan, referred to the existence of a pilot for trespassing on your Lordships’ patience and that project operating in Kenya, Mexico and Pakistan. It is of the clerk and others here. I thank noble Lords for important that consular, high commission and other their thoughtful contributions and am particularly embassy advice is available to businesses practising in grateful to the committee for its work in scrutinising foreign countries. The Government are aware of that. this piece of legislation. I am happy that the legislation Time may not permit me to refer noble Lords to the and its operation, broadly speaking, enjoy such support range of training in place but, again, I can write to across the Benches in your Lordships’House. I apologise noble Lords who raised the question. I can say in to noble Lords if I have not responded, owing to the relation to the specific point raised by the noble Baroness, times constraints, to specific points that they have Lady Fookes, that we will respond in writing to the raised, but I will go over my notes and those taken for question of how many people are involved in training me in relation to points raised by noble Lords, and will in the embassies—and that also goes to consular and correspond in due course. high commission facilities. In answer to questions raised by the noble and learned Lord, Lord Davidson of Glen Clova, my predecessor 5.12 pm in office, the self-report system that operates in Scotland Lord Saville of Newdigate (CB) [V]: My Lords, is, as he and the noble and learned Lord, Lord Hope during the course of the debate, a number of speakers of Craighead, observed, distinct from the system of raised the question of applying vicarious criminal deferred prosecution agreements that operates in England, liability to companies in cases of bribery. There are Wales and Northern Ireland. The initiative must be very strong views held on both sides of this question, reviewed and approved each year by the Lord Advocate, but I simply draw attention, once again, to Section 7 and was most recently extended until June 2021. The of the Act, on the failure to prevent bribery. This fact that business is required to put in place measures avoids all questions of mens rea and other difficulties to prevent unlawful conduct is viewed as an effective and provides, in my view, a ready means of catching means of preventing corruption in future. out the company if it has failed properly to take In 2018, the committee asked the Lord Advocate adequate measures. If we apply that section to the ship about a perceived lack of transparency with the self-report captain who has lost his ship, then he would not get scheme, because the matter does not go before a judge away with it if he had failed to take adequate measures in open court. The Lord Advocate does not accept to keep his ship seaworthy. that there is a lack of transparency in the Scottish I take this opportunity to publicly thank the staff system. Following the conclusion of any settlement who worked for this committee. The advice and guidance under the self-reporting scheme, as part of a proactive of our clerk, Michael Collon, proved quite invaluable. strategy, the Crown Office invites publicity and provides We could not have been better served. I wish him a information for media releases which are published on long and happy retirement. The same could be said— a dedicated bribery page on the Crown Office and except that he is not retired—of Ben Taylor, our policy Procurator Fiscal Service website. analyst. His historical and other research was of the In response to a further point raised by the noble highest quality. Alasdair Love and Rebecca Pickavance and learned Lord, there are no current plans to amend also formed part of the team, and we were all very the Act, but we will await with interest the findings of impressed by the hard and good work that they did for the Law Commission review of corporate criminal us. I also thank Anne-Marie Ottaway, a solicitor with liability. In relation to the concern raised by a number extensive knowledge of the working of the Bribery of noble Lords about the guidance on offer in relation Act, whose assistance as our specialist adviser made to corporate hospitality, we believe strongly that an important contribution to our work. Finally, I professional organisations and trade associations are thank the other members of the committee, all of better placed to provide both sector-specific and bespoke whom played a vital part in our deliberations. It was a guidance on corporate hospitality. In relation to the very great pleasure to work with such people. broader point raised by the noble and learned Lord, we can readily see that there may be a difficulty if, further down the line to the provision of specific Motion agreed. tailored advice in specific circumstances, one side might plead that it was being prosecuted having followed advice, and the other might declare that material facts The Deputy Chairman of Committees (Lord Duncan that would have influenced any advice given had not of Springbank) (Con): That completes the business been disclosed. It is that sort of matter that the before the Grand Committee this afternoon. I remind Government’s approach seeks to avoid. all Members to sanitise their desks and chairs before leaving the Room. I thank the noble Lord, Lord Thomas of Gresford, for his characteristically thoughtful analysis of the matter and his endorsement of the operation of Section 7. Committee adjourned at 5.15 pm.