Report (3rd Day) (Continued)
My Lords, we now come to the group consisting of Amendment 75. Anyone wishing to press this amendment to a Division must make that clear in the debate.
75: After Clause 72, insert the following new Clause—
“Code of practice: employer’s duty of care
(1) In this section—(a) “worker” means an individual who has entered into or works under a contract of employment or any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and(b) “employer” means the person to whom the worker undertakes to perform the work or services in question.(2) The Secretary of State must issue a code of practice (a “code”) containing provision designed to ensure that persons affected by domestic abuse who are workers receive appropriate care and support from their employer in relation to their work.(3) A code may include provision requiring an employer to make reasonable adjustments for the purpose of ensuring that persons affected by domestic abuse are not, by reason of being so affected, placed at a substantial disadvantage in relation to their work in comparison with persons who are not so affected.(4) The Secretary of State may revoke or amend a code.(5) Before issuing, revoking or amending a code the Secretary of State must— (a) issue proposals, and(b) consult the Commissioner and such other persons as the Secretary of State thinks appropriate.(6) Failure to comply with a provision of a code does not of itself make a person liable to civil or criminal proceedings; but a code shall be—(a) admissible in evidence in criminal or civil proceedings, and(b) taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant, including (in particular) any case in which a question arises as to whether an employer is in breach of a duty of care owed to a worker.”Member’s explanatory statement
This amendment would require the Secretary of State to issue a code of practice containing provision designed to ensure that persons affected by domestic abuse who are workers receive appropriate care and support from their employer.
My Lords, I start by thanking the noble Baronesses, Lady Meacher and Lady Bennett of Manor Castle, for their support of this amendment. Time is getting on and we have a lot to go through tonight, so I promise I will not detain the House by repeating the arguments I used in Committee.
I am very encouraged by the letter I received from Minister Scully outlining all the steps that the Government have taken and are taking to make employers aware of what they can do to support victims and signpost them towards help. I also commend the Government on their recent review, Workplace Support for Victims of Domestic Abuse. As we know, the workplace is one of the few places where the victim is usually separate from the abuser. If the workplace culture is positive and the employer knows how to help by signposting the victim, this can make all the difference. Sadly, the review outlined a mostly different picture: a lack of awareness of the warning signs of abuse; stigma around talking about it; and a lack of knowledge of what to do to help.
In his letter to me, Minister Scully said:
“We will now work together with employers, representatives of victims and trade unions to continue to build awareness and understanding of domestic abuse and drive good practice across the board.”
The Chartered Institute of Personnel and Development and the Equalities and Human Rights Commission have produced an oven-ready code of practice. It is only one small step to put implementation into government guidelines on duty of care. What will these guidelines consist of? Will they be incorporated into the other duties of care required of employers? If not, what will it look like?
Regrettably, this knowledge will not filter down to employers by osmosis. We need one small step, such as a government extension of the duty of care to extend to larger organisations incorporating a policy on employee domestic abuse victims into their existing employee policies. That in itself would send a powerful signal not just to victims but to abusers that this behaviour is not okay and that help is at hand. Now, when employees are coming back to work, is an ideal time to welcome them with a policy that confirms their self-worth and the fact that they are regarded and cared for.
The Government have made great strides already. The establishment of a code or duty is just half a step more. The result is a big benefit for all concerned: employees who feel able to bring their whole selves to work; other employees who also feel valued and supported; and, not least, employers, who reap the rewards in terms of enhanced loyalty and productivity. It is a win-win, and the only cost to the employer is a little thought. I beg to move.
My Lords, I am very glad to speak in this debate. I thank the noble Baroness, Lady Burt, for moving the amendment. I was very pleased that the Government confirmed in Committee that domestic abuse protection orders would cover the workplace as well as the home. This is a very important step in ensuring that victims remain protected at work, and it is a first step to ensuring that domestic abuse is seen as a workplace and trade union issue. Home and work cannot be neatly separated, and this has never been truer than during the Covid pandemic.
I declare my interest as a member of UNISON, and I was particularly pleased that its campaign was so successful. I warmly congratulate its new general secretary, Christina McAnea.
There is no room for complacency, as the noble Baroness said. I am certainly convinced of the need to ensure that victims of domestic abuse are protected at work and that their employers do everything they can to support them. I have already said that home and work issues cannot always be neatly separated. Abusive and violent behaviour does not always take place in the home; it can frequently cross into the workplace, where victims experience stalking, threats, harassment and even worse. Equally, work can be a lifeline to independence and survival for victims of domestic abuse, as they are ordinarily able to leave their homes to go elsewhere and can maintain a level of income independent from the perpetrator.
All victims should feel safe in the knowledge that they can take action to put their lives back on track with their employment secure, and that they will be protected while they are at work. The Government have a responsibility to ensure that victims of domestic abuse are protected at work and that their employers do everything they can to support them.
We know from a TUC survey from 2015 that one in 10 of those who experienced domestic violence reported that the violence continued in the workplace. Over 90% of respondents to the survey who had experienced domestic violence reported that it had caused conflict and tension with co-workers, and a quarter of respondents reported that their co-workers were harmed or threatened.
This is where discussion about the code of practice comes in. The requirement that the code should be
“designed to ensure that persons affected by domestic abuse who are workers receive appropriate care and support”
is certainly an interesting suggestion. From listening to the noble Baroness, Lady Burt, I can certainly see the attractions of a code of practice. As she said, she has had discussions with relevant organisations on it.
However, I put to the noble Baroness the risk that, in any criminal or civil proceedings, compliance with the code by an employer may become the issue, rather than the domestic abuse carried out by a perpetrator. In the experience of UNISON, with which I have discussed the amendment, the introduction of a policy would seem to be much more effective in encouraging victims to volunteer that they are affected by domestic abuse, enabling referral to appropriate support agencies. In other words, while employers must ensure that they are meeting their duty of care, this might be seen as a blunt instrument. But I recognise that it is being moved with the best of intents and, in the work that goes forward, I am sure that it will be important to consider a code alongside the other measures that are clearly important to take.
My Lords, as someone involved in a small business as an employee, and having run a number of small businesses over many years, I can certainly applaud the general sentiment behind this amendment. However, its scope would potentially enmesh a category of small business that could be regarded as disproportionately wide. We should bear in mind that many are microbusinesses: they do not have HR departments and may well operate, as my employer does, in a very dispersed and diffuse mechanism. Setting in place a code and signposting this issue is, however, certainly desirable.
Work environments are not always on fixed premises—they may be in all sorts of places. In construction, certainly, they can be literally anywhere and in all sorts of circumstances. All sorts of people may be involved in those setups as an employer or employee, within the definition proposed here.
I want to refer to the other examples that we have for ensuring better workplace consciousness. We had this on health and safety: ultimately, that was backed by statutory provisions but it had a massive effect on the culture of safe working in construction, in particular—possibly not so much on farming, where children were particularly at risk. More recently, we have had what might be described as a much more voluntary process on mental health. Much has been said about this over the last two or three years to do with employees looking out for what might be troubling their colleagues and just asking them: “Are you all right?” So often it is that which is brought to the attention of somebody who matters and can achieve an effect, rather than necessarily the employer, who may be somewhere else and not in direct contact.
This is a matter of best practice. It goes along with general health and bereavement, and that sort of thing. I am less sure that making it prescriptive is the right way forward. As I said, I applaud the principle and general sentiment behind the amendment. If the Minister felt that she could concede to the point of at least producing some detailed statutory or other guidance that could be followed, it would be a material step forward.
My Lords, I want to make one brief point. A code of practice or something which is a guide to employers—and is obviously to be shared with people in the workplace—would and should be welcome to employers. I say that in the context of increasing awareness of domestic abuse, that it happens so often and what it comprises. There must be employers who are now and have been wondering what they should be doing. Assistance to employers is a part of the range of responses that we are becoming so conscious of needing to be in place.
My Lords, it is a pleasure to follow the noble Baroness, Lady Hamwee, and to build on her points. In the hugely powerful debate on the previous amendment, the noble Baroness, Lady Royall of Blaisdon, said that the system has to change. That is what this amendment is all about. Employers are very much part of the system that has to help the victims and potential victims of domestic abuse. I rise briefly to offer the support of the Green group for the amendment and I thank the noble Baroness, Lady Burt of Solihull, for tabling it. I am pleased to join the noble Baroness, Lady Meacher, in supporting it because that expands the cross-party nature of its backing. I thank in particular Hestia, the London-based domestic abuse service, for its useful briefing, and the charity Surviving Economic Abuse.
As I said in Committee, the statutory need for paid leave to deal with the impact of domestic abuse is urgently needed and a code of practice for employers, including a provision for reasonable adjustments, would be a good start. An economic case can easily be made for allowing employees to sort out their issues to end any drag on their productivity, but there is also the humanitarian case and indeed simple responsibility and duty of care, as well as the basic principles of health and safety in the workplace. For everyone to be safe at work, both the survivors of domestic abuse and those around them need to know that the framework is in place. A 2017 study found that 86% of employers agreed that they had a duty of care to support employees experiencing domestic abuse.
The will is there but the knowledge can often be lacking. I have been thinking back over my professional life as a journalist and a manager of journalists. That management started in my mid-20s when I frequently had a pastoral duty of care to staff, which, in retrospect, as a young and untrained manager, I was not well equipped to handle. I have never knowingly had a staff member who was the subject of domestic abuse, but I had a much older male boss, who I suspect was rather at a loss, who asked me to do what I could to support a colleague, which I did, although I fear not terribly well. That was a long time ago and there was certainly no guidance then, although there should be now: a binding code of practice with the resources to back it up, along with a step-by-step guide to action, would be a great relief to the many businesses and managers facing the complicated pressures that they are today.
The noble Earl, Lord Lytton, expressed concern about the extra pressure on very small businesses. I think that they would be among those most relieved to have a code to follow—a map that should, I suggest, recognise the different capacities of different sizes of business, and provide appropriate support routes where businesses do not have the resources themselves. The vast majority of businesses want to do the right thing, but they need government support, help and guidance to do so. It also makes economic sense for individual businesses and for the whole community to do so.
A broader point can be made here, not only in terms of this amendment but on something that has arisen across our debates, but perhaps it has not often been set out explicitly. Domestic abuse is a problem for the whole community, not only for victims, law enforcement and social workers; every part of the community needs to be involved in tackling it, and that includes employers in particular.
My Lords, I support Amendment 75 tabled by the noble Baroness, Lady Burt, to which I have added my name. Surely one of the attractions of this amendment for the Government is that it will not cost any taxpayer money, but it would, as the noble Baroness, Lady Burt, has indicated, make a big difference to the lives of an awful lot of people and, indeed, improve their productivity at work.
Many employers are already extending their duty of care responsibilities to employees who are the victims of domestic abuse. The aim of the amendment is to extend this good practice to all employers through the use of a code of practice. There are strong reasons for the Government to accept this amendment. According to research carried out by the Home Office in 2016-17, police handling of domestic abuse in England and Wales cost £1.3 billion—10.2% of the policing budget. The same research showed that the lost output and reduced productivity resulting from domestic abuse cost the country £14 billion, although presumably a lot of that will have been borne by employers in lost output. It is therefore not surprising that BEIS has made it clear in a recent report that it supports employers acting on domestic abuse. The department pointed to three challenges, including the need to raise employer awareness and to spot the signs of abuse. What better way to do that than with a code of practice for employers issued by the Government? The BEIS report committed to establishing a working group made up of the Government, employers, representatives of domestic abuse victims, and trade unions to convene regularly to find practical solutions, drive culture change and establish best practice. Of course, such a working group could usefully contribute to a code of practice.
As has been widely publicised, Covid has greatly exacerbated the problem. Calls to the Refuge national domestic abuse helpline have increased by 66% and visits to the website increased by an extraordinary 957% in the two weeks prior to 27 May 2020. These are extraordinary figures, and this is therefore a peculiarly appropriate moment for the Government to support this proposal. We know that domestic abuse remains shrouded in shame and secrecy, so that too often victims do not seek the help that they need. As one victim, a police officer, said: “There is no way that I would have even framed what I was going through as abuse. It had just gradually become my normal. The chances of me reaching out for help or support would be zero.” Hence the importance of employers taking the initiative to make it clear that they understand the issues and are there to provide support in relation to work.
Thanks to the tireless efforts on this issue of Elizabeth Filkin, chair of the Employers’ Initiative on Domestic Abuse, and her colleagues, many well-known employers are already offering support to employees who are domestic abuse victims. I quote from a report by Elizabeth Filkin, Theresa May and others, to illustrate the examples of employer support which could and should be followed by others, and which would be stimulated by a code of practice as proposed here by the noble Baroness, Lady Burt. The report says that
“Lloyds Banking Group has informed staff that if they need to leave home, it will arrange hotel accommodation and help them move”,
which is pretty impressive, and
“Chelsea Football Club are supporting Refuge. Boots, Morrisons and pharmacies are providing safe spaces in their shops for customers facing domestic abuse to gain access to domestic abuse services. … Thames Valley Police created a Vulnerability Task Force during lockdown which focussed on historic victims of domestic abuse who may have been unable to report due to COVID-19 restrictions. From the beginning of lockdown to 5 June they had over 1500 contacts with victims … The feedback from these contacts has been extremely positive”.
Following on from the contribution by the noble Earl, Lord Lytton, clearly the code would need to take account of the very different circumstances of many small businesses. One government department, BEIS, is already committed to the employer domestic abuse agenda represented by this amendment. I hope that the Minister can assure the House today that the Government accept the proposal for a code of practice on this issue. I look forward to the Minister’s response.
My Lords, I am delighted to support Amendment 75, tabled by the noble Baroness, Lady Burt of Solihull. As she explained, it will require the Secretary of State to issue a code of practice containing provisions designed to ensure that workers affected by domestic abuse have appropriate care and support from their employer.
We had a good debate on this issue in Committee. We are all aware that we spend a lot of time at work, so a victim of abuse can spend a lot of time with their work colleagues. This code will set out the reasonable steps that an employer should be taking to support their employees, and is very welcome. Like the noble Baroness, Lady Bennett of Manor Castle, I have been a manager in the past, and I certainly had staff who had problems and issues and I have tried to be supportive. I do not believe that anybody had domestic abuse issues, but there were certainly other problems. I hope that as a manager I took the right actions to support work colleagues and get them over their problems. Having a code provides, for the employer, staff and managers, guidance on what reasonable adjustments can be made. That is really important.
We all know what goes on with abusers: they seek to disrupt and cause chaos in the victim’s life, drive them out of work and make them economically dependent so that they are even more under the abuser’s control—and, of course, abuse is all about control. This code is important; it would be a really good tool for employers. I hope the Minister will be able to get this right and put it on a statutory footing. The overwhelming majority of employers want to do the right thing; the noble Baroness, Lady Meacher, listed a number of organisations which are clearly doing just that—but we should not assume that everyone knows the right thing to do. I hope we can support this. I look forward to the Minister’s response.
My Lords, I am grateful to the noble Baroness, Lady Burt of Solihull, for again raising the important issue of support in the workplace for the victims and survivors of domestic abuse, and to all noble Lords who have spoken in the debate again this evening. As the noble Baroness said in Committee, the workplace can be an important safe haven for victims, and the Government are clear that domestic abuse is everyone’s business. We know from our recent review just how important the role of employers can be, and that guidance is an important and useful tool. As the noble Baroness, Lady Bennett of Manor Castle, and the noble Lord, Lord Kennedy of Southwark, said, employers and managers want to know how they can best help in this area. That is why we are including information for employers in the statutory guidance associated with the Bill.
The guidance that we have published in draft form refers to the exemplary toolkit provided by Public Health England, Business in the Community and the Employers’ Initiative on Domestic Abuse, which will improve the support available for employers and their employees. We have also welcomed and promoted the excellent guidance provided by the Equality and Human Rights Commission and the Chartered Institute of Personnel and Development.
The power to issue guidance under Clause 73 is wide-ranging; it would enable guidance to be issued on any matter relating to domestic abuse. Accordingly, we do not believe that it is necessary to include in the Bill a separate, specific provision relating to guidance for employers. Moreover, we have committed to producing guidance and tools for employers which will enable more victims to come forward and ask for help in the workplace. Amendment 75 recognises the importance of the consultation process in developing guidance and sees a role for the domestic abuse commissioner. As we set out in a report earlier this year, we will work with employers, trade unions and representatives of victims and survivors.
We are grateful for the support provided by the designate commissioner for the BEIS review last year and we want to continue to make use of her expertise as we move forward in this important area. This approach will help to design effective guidance and to reach the maximum number of employers. It is important that we continue to bring employers with us, and work together to harness their full potential to tackle domestic abuse. It is also important that guidance can be responsive to changing circumstances and evolve with best practice and the examples of employers in different areas.
However, guidance is not the only tool to engage employers in relation to this issue. There have been some significant achievements already. Last year, we partnered with the Employers’ Initiative on Domestic Abuse to raise awareness and provide guidance to employers on domestic abuse in lockdown. We continue strongly to encourage all employers to join the Employers’ Initiative, which I believe has seen a remarkable growth in its membership. This shows just how interested employers are in this important issue. The noble Baroness, Lady Meacher, mentioned a couple of specific employers; I was pleased to mention some other examples in Committee.
The Government have also implemented the Ask for ANI scheme in thousands of pharmacies. Most recently, the Department for Work and Pensions, together with the Sharan Project, has launched the Employers Domestic Abuse Covenant. By signing up to this covenant, businesses pledge to raise awareness and identify opportunities to help women affected by domestic abuse with access to work and skills. I hope and believe this demonstrates that the whole Government have a clear course of action and a strong commitment to working in partnership with employers and the specialist sector to support victims in the workplace.
In summary, we wholeheartedly agree with the noble Baroness on the important role that employers have to play in supporting victims of domestic abuse. I hope that she will recognise the work that we have set in train to build on the important work of the Employers’ Initiative and others and that, on that basis, she will be content to withdraw her amendment.
My Lords, I am very grateful to all noble Lords who have spoken this evening. Their knowledge always delights and surprises me, and we have heard knowledgeable contributions tonight from different perspectives.
I thought the contribution of the noble Lord, Lord Hunt, was very perceptive; he said that you cannot separate home from work. One of the things on which I probably bore for England is the fact that work is so important—you cannot just be a different person when you go to work; you have to bring your whole self.
We learned from the noble Earl, Lord Lytton, about the experience of small businesses. He expressed one or two concerns. I do not think the code was intended for implementation straightaway, certainly for small businesses—larger businesses will have to show the way.
My noble friend Lady Hamwee talked about how the code of practitioners would be welcome to employers; it is a help, not an effort to dictate to them. That theme was echoed by the noble Baroness, Lady Bennett; employers would certainly reach out for a guide, because of the lack of knowledge within companies.
I loved the comment of the noble Baroness, Lady Meacher, that it costs nothing to the Government—it also costs very little to employers—who reap the reward many times over in the savings and in terms of misery to them and to the country. Figures of £1.3 billion to the police and £14 billion to the country were given. There are also examples of what companies are doing already, which demonstrates the willingness and thirst to embrace that code of practice and to incorporate that duty of care into the other duties of care that employers have.
The noble Lord, Lord Kennedy, made a number of very supportive comments, for which I am grateful.
In conclusion, I want the Government to accept the proposal for a code of practice. It does not have to be in this Bill; I am persuaded of that because of the progress they are making. Taking all that into consideration and having raised the issue, I am hopeful that this will spur on the Government, the trade unions and other organisations to start to look at the practicalities of how a code would move things forward and all the different things they can do to embrace and understand how employers can help. With that, I beg leave to withdraw the amendment.
Amendment 75 withdrawn.
Amendment 76 not moved.
We now come to the group consisting of Amendment 77. Anyone wishing to press this amendment to a Division must make that clear in debate.
77: After Clause 72, insert the following new Clause—
“Screening for acquired brain injury in domestic abuse cases
(1) A woman who has been the subject of domestic abuse, including female prisoners and those awarded community sentences under probation supervision, must, with her consent, be screened for traumatic brain injury, and other forms of acquired brain injury, including concussion.(2) For the purposes of this section, a woman has been the subject of domestic abuse if—(a) she is the person for whose protection a domestic abuse protection notice or a domestic abuse protection order has been issued, or(b) she is the person against whom it has been alleged that domestic abuse has been perpetrated when the accused is charged with an offence within the meaning of section 1 of this Act.(3) The purpose of screening under subsection (1) is to assist in the determination of whether a woman has been the subject of domestic abuse.(4) If screening under subsection (1) shows that there is an acquired brain injury—(a) an assessment must be made of whether such an injury has been acquired as a result of domestic abuse, and(b) the woman must be given appropriate rehabilitation treatment and advice.”Member’s explanatory statement
This amendment seeks to improve the state’s understanding of the prevalence, causality and impact of brain injuries sustained during incidents of domestic abuse. It seeks to ensure that this is done quickly and thoroughly in order to start rehabilitative treatment.
Amendment 77, in my name and that of my noble friend Lady Finlay of Llandaff, is an amalgam of the two amendments I tabled in Committee. It is also an amalgam of the amendments tabled in the other place by Chris Bryant MP, chairman of the All-Party Parliamentary Group on Acquired Brain Injury, in which I should declare an interest as a vice-chairman. I should also declare an interest as chairman of the Criminal Justice and Acquired Brain Injury Interest Group, which consists of a number of practitioners in the field and officials from the Department of Health and the Ministry of Justice.
In Committee, I outlined just why it was so important that all victims of domestic abuse should be screened and assessed for any acquired brain injury as quickly as possible after the event, and was very happy that the draft guidance to be issued by the Home Office to the police contains just such an instruction. I am keen that such an instruction should also be issued to the Prison and Probation Service, I hope statutorily, based on evidence produced by one of the members of the interest group the Disabilities Trust at HMP Drake Hall, a women’s prison in Staffordshire.
After Committee, I wrote to Ministers appealing to them to adopt my amendment as a government one, and I am most grateful to the noble Lord, Lord Parkinson of Whitley Bay, for seeing me to discuss that. I am still hopeful and will not decide whether to divide the House until I have heard what he says in response.
Noble Lords often raise matters that they think should be in legislation during the detailed scrutiny that all Bills receive in this House, which Bill teams almost invariably brief their Ministers to turn down, but there is often method behind the apparent madness of the mover of a particular amendment, because officials simply cannot be expected to know as much detail as professionals in the field, and their successors may one day be grateful that they included a particular reminder or nuance.
I admit that I had not realised the importance of domestic abuse victims being screened for an acquired brain injury before I was educated, any more than did some of the victims screened at Drake Hall. Some of them realised that an injury had been inflicted during the abuse only when the reason for some of their symptoms was explained.
My Lords, I am not getting any messages through on my iPad or my phone, so if there is anything I need to know I hope the Whip will let me know. I call the noble Lord, Lord Naseby. The noble Lord has scratched, so I call the noble Baroness, Lady Finlay of Llandaff.
My Lords, this amendment is important and it has been carefully worded to cover all the suggested improvements, as my noble friend Lord Ramsbotham said. It must be incorporated into guidance to prisons. The victim of a domestic abuse brain injury, normally a woman, may suffer memory loss, get confused and her speech become slurred because of brain injury. There is no physical wound or bruise; the damage is internal and invisible. Some in the criminal justice system doubt her because she appears confused and disorganised through loss of some executive functions. The brain injury remains unrecognised, and most victims will never have consulted a doctor, often through fear of talking about the abuse.
The Disabilities Trust’s work in Drake Hall prison which my noble friend Lord Ramsbotham referred to found that 64% of women prisoners coming on to the secure estate for the first time had a brain injury, and almost two-thirds were from a domestic violence incident. Some 40% of the women had a traumatic injury labelled as a mental health diagnosis, and for many this was the first time anyone realised the cause of their behavioural symptoms. Similar work with male prisoners has verified exactly the same situation.
Women who have experienced domestic abuse need treatment. They may need surgery to remove a chronic clot on the brain, and they certainly need neurorehabilitation services to understand the condition and cope with it. As I said, the data from male prisoners is similar, and it is similar in young offenders too: around 40% have an acute brain injury affecting their behaviour.
We cannot ignore the size of the problem, with almost two-thirds of women having a brain injury that came about from domestic abuse. This must be incorporated into guidance. I feel that if the Government will not agree to do that, my noble friend will be forced, unfortunately, to divide the House.
My Lords, it is a pleasure to follow the noble Baroness, Lady Finlay, who is so immensely knowledgeable in these matters. I recall clearly the debate we had in Committee and what we learned about the shocking prevalence of acquired brain injury among prisoners and domestic violence victims alike.
As regards this amendment, women victims should be screened if they have been subject to domestic abuse, including women in prison. The amendment sets out quite strong qualifying criteria for screening and treatment for whether the woman qualifies as a domestic abuse victim.
In Committee, the noble Baroness, Lady Finlay of Llandaff, expressed concern about the practicality of being able to perform scans within two weeks, given the large waiting lists, which have been made appreciably worse by the pandemic. She also cast a depressing light on the fact that much acquired brain injury is irreversible. Therefore, I believe it is a balance between what is practical and what is desirable.
However, we know that productive discussions have been had by the Safeguarding Minister, with the noble Lord, Lord Ramsbotham, and Chris Bryant MP in the Commons. The noble Lord has done a great service to the House in raising this issue, and I greatly commend the work he has done over many years to raise awareness of the importance of acquired brain injury.
The noble Lord also secured a commitment from NHS England and NHS Improvement to add further questions to their existing screening tool to identify how an acquired brain injury occurred and whether violence was involved. He told the House about the extensive health examination given to new prisoners. That has certainly improved since my prison days. Much seems to be being done—or planned—by the NHS through non-legislative means. I agree with the noble Lord, Lord Ponsonby, who spoke in Committee, that it is not totally necessary to include this amendment in the Bill.
My Lords, I too pay tribute to the noble Lord, Lord Ramsbotham; he has a long-standing interest in this subject and I have heard him bring it up in other forums many times. As he said, he has worked constructively with Chris Bryant in another place; they have worked in tandem in bringing this issue to the fore and to the attention of Ministers. I am glad that the noble Lord, Lord Parkinson, has met the noble Lord, Lord Ramsbotham, and maybe the noble Baroness, Lady Finlay, as well.
The noble Lord, Lord Ramsbotham, indicated that he is undecided about whether to divide the House on this matter, and it will depend on the Minister’s response. From my party’s perspective, I am not sure that this needs to be in the Bill, and we would abstain if the noble Lord were to press the matter to a vote.
I was also very persuaded, for a second time, by the noble Baroness, Lady Finlay. She made a very stark speech about the seriousness of these brain injuries and how they are potentially irreversible; she drew the problem even wider, saying that they are prevalent among male prisoners and those in young offenders’ residences.
I once again congratulate the noble Lord, Lord Ramsbotham, but I urge him not to press his amendment.
My Lords, I thank the noble Lord, Lord Ramsbotham, for once again outlining the case for his amendment. Along with Chris Bryant MP, he has raised the importance and profile of the issue of acquired brain injury and the importance of early screening, for which both he and Mr Bryant should be commended. I was grateful to have the opportunity to discuss the issue in greater detail with the noble Lord, as he mentioned. However, as I indicated in Committee, we remain of the view that legislation is not the right course of action, for the reasons that I will now set out.
The amendment would introduce screening for acquired brain injury for female victims of domestic abuse, including female prisoners and those to be protected by a domestic abuse protection order. It is important that the healthcare and support provided for victims of domestic abuse and female prisoners, including those with acquired brain injury, meets the healthcare needs which may result from their abuse. We believe that this Bill is transformational in the support that it will provide for victims of domestic abuse in bringing their perpetrators to justice and raising awareness of domestic abuse, including the impact it can have on survivors.
It is for the NHS to provide the most appropriate care and treatment, based on an individual’s medical history and clinical need. That is the basis on which the NHS operates, providing healthcare and diagnostic tests for those who need it, including urgent referrals.
As I mentioned in Committee, domestic abuse can manifest itself in many ways, not just through physical injuries but mental harm through coercive control and financial abuse. We do not think that such victims should be screened for brain injury, or that this would be an effective use of NHS resources. In addition, we would not want to deter women from coming forward to receive support if they are concerned about the possible outcomes of a brain screening.
I set out in Committee the improvements we have made to existing screening processes through non-legislative measures in prisons. This was in acknowledgement that more could indeed be done to improve current screening processes. The process I described will now identify and address specific circumstances where head injury or loss of consciousness has resulted from domestic abuse and other forms of violence. That is an important step forward.
As I explained, the national screening tool is reviewed and updated by NHS England and NHS Improvement on an annual basis to allow for any changes in NICE guidance or any recommendations arising from a coroner’s report to prevent future deaths. NHS England and NHS Improvement have agreed the precise questions to be asked and how these will be reported against. The coding within the clinical system has been agreed, and we expect these changes to be implemented next month. I am sure noble Lords would agree that this is an important and significant step forward and a good demonstration of how we can make improvements without legislative measures.
In addition, NHS England and NHS Improvement are continuing to work with the Disabilities Trust on a training package for healthcare practitioners to increase effectiveness when supporting people with impaired neurological functioning, either as a result of domestic abuse or due to other reasons. This training is also designed to provide practical steps for those working with patients, and self-help tools for the individuals themselves to reduce and overcome the impact of any brain injury.
In his amendment, the noble Lord, Lord Ramsbotham, seeks to link screening to the issuing of a domestic abuse protection order against a perpetrator. It is important not to conflate the two issues. Domestic abuse protection orders, like other protection orders, are designed to impose requirements on the perpetrator. They cannot impose requirements on the person to be protected by the order, such as requiring them to undertake a screening for an acquired brain injury. However, we can, and we will, use the statutory guidance to the police on DAPOs to recommend that the police refer victims to an independent domestic violence adviser or other specialist advocate who will be able to advise victims on their options on a range of issues, including healthcare. We will also include information on where victims can go to seek medical attention in the DAPO advice materials for victims which we will be producing ready for the pilots of the orders.
We remain of the view that these non-legislative interventions are the appropriate way forward to address the important issue that the noble Lord has again raised and will help improve screening for acquired brain injury. On that basis, I hope that the noble Lord, Lord Ramsbotham, will be reassured and will be content to withdraw his amendment.
My Lords, I thank the Minister for that considered response, and I also thank all noble Lords who have spoken in this short debate. I am very relieved to hear that NHS England and NHS Improvement are working with the Disabilities Trust, and on that basis I beg leave to withdraw the amendment.
Amendment 77 withdrawn.
Amendments 78 to 81 not moved.
We now come to the group consisting of Amendment 82. Anyone wishing to press the amendment to a Division must make that clear in the debate.
82: After Clause 72, insert the following new Clause—
“Repeal of defence of reasonable punishment
(1) Section 58 of the Children Act 2004 is repealed.(2) In relation to any offence, battery of a child cannot be justified on the ground that it constituted reasonable punishment.”
My Lords, as we approached the start of Report, I looked at the progress made in the Government adopting a significant numbers of amendments proposed in Committee and at the sensible amendments achieving broad cross-party support on Report, some of which I hope we will see adopted, and there was cause for some satisfaction. There was a feeling that this Bill, pushed along by a huge amount of hard work by campaigners outside your Lordships’ House who have provided us with extensive briefings and support showing the level of society’s concern about the failure to protect victims of domestic abuse, truly can protect people in their own homes. This is a humanitarian Bill about preventing physical and mental suffering, damage to health and well-being, and even death.
But as the deadline for amendments approached, it struck me that there was one remaining gaping hole in protections for children. There is the amendment tabled by the noble Baroness, Lady Stroud, on in utero protection, but until now we have not even debated broad protection for children in the domestic setting, despite this being the major, long-awaited and much-debated Bill specifically covering that area of life.
In retrospect, that is extremely surprising, particularly when we look at what is happening elsewhere on these islands. Last November, in Scotland, a law giving children the same protection from assault as adults enjoy, in domestic and all settings, came into force. In Wales, the same protection will come into force in 2022. In Northern Ireland, it is under serious consideration. And of course the UN Convention on the Rights of the Child, which the UK adopted in 1990, requires the abolition of corporal punishment in all settings.
There are now also 58 other nations around the globe that have brought in what is generally known as a smacking ban, Sweden having been the first state to do so, way back in 1979. I am not generally, however, going to use the term “smacking ban”, because, although it is helpful for public understanding, having wide currency, it to some degree trivialises the protection from assault that I am talking about.
Let us make no mistake: children in England can now be assaulted in ways that, were one adult to do to another, would be considered absolutely unacceptable by the law and the public. Imagine being on a bus and seeing one person lean over and slap another across the legs with clear intention to shock and cause pain; you would be on your mobile phone to the police in a second. At night, down the pub—if you can still imagine such a thing—the same behaviour would see the bouncers approaching in full force to restore order. Yet we still explicitly in law allow such behaviour towards children, the most absolutely vulnerable individuals in our society.
In the school playground, should one child behave towards another as their parent may have done the previous evening towards them, officialdom would rightly swoop down, and, should it be a pattern of behaviour, there is a real chance that that child might receive the extreme penalty of exclusion from school.
Amendment 82, which I am presenting, is simple. I apologise for my oversight in not providing an explanatory note, but I think the meaning is clear: it abolishes the defence of “reasonable punishment” that currently exists under Section 58 of the Children Act 2004, and it says that
“battery of a child cannot be justified”.
I know well that this debate is not new to many in your Lordships’ House. A quick internet search demonstrated just how hard many participating in the debate today worked back in 2004 to try to bring protection from assault to children. That led to restrictions on corporal punishment by a parent, so a parent can still be charged with common assault if a physical punishment causes bruises, grazes, scratches, swellings or cuts. However, a defence of “reasonable punishment” is still available in the law, even when there is physical evidence of severe punishment. It is pretty well impossible to prove that punishment is unreasonable. It is a test of intent, and we are talking about events that generally happen behind closed doors. That was a degree of progress in 2004, but not nearly enough, and it is certainly not enough for 2021.
Among the people who worked enormously hard back in 2004 were the noble Baronesses, Lady Walmsley, Lady Whitaker and Lady Finlay, who have kindly signed this amendment—bringing broad cross-party and non-party support to it—and who will be speaking shortly. I know that a number of others would have signed the amendment, had there been space. I thank all of them for their support and their experience.
They are reflecting the view of a large number of campaigners and experts. Many noble Lords will have received a briefing from the Association of Educational Psychologists that contains a very long and distinguished list of organisations, from campaigning to medical professionals, that support such a move as this. I particularly thank the Social Workers Union, which has published an article doing that just today. That the AEP has been leading recent campaigning in England on the issue is not surprising when you see the evidence that it has assembled. It reports how the physical punishment of children causes anxiety and depression, damages self-esteem and models aggressive behaviour, which is often copied. The evidence also shows that it damages the quality of parent-child relationships.
I suggest that we also have to consider the context of the Covid-19 pandemic, which affects everything today. Children have had a hugely difficult time: for a five or 10 year-old, it is a major chunk of their life—a dominant experience that will certainly continue to have impacts on them. They need our protection and support.
Before I bring this intervention to a close, I have one final point to make. I have no doubt that some will suggest that this amendment would run the risk of unreasonably penalising struggling parents trying to do their best in extremely difficult circumstances, with the lockdown, poverty, inequality and all the other stresses of life today. But this is very much the opposite—a necessary message from a society that, surveys show, already understands that physical attacks on children are not a good thing.
We need to support parents to use positive parenting strategies to better understand and anticipate their children’s behaviour and be more confident about how to set boundaries and support their children in developing self-regulation—and to control their own behaviour. Force escalation is a key issue in protecting children from assault. Research shows that when force is used, there are changes in brain activity that can lead to an escalation in the degree of force used. The AEP notes that, in a survey of parents, two in five admitted to going further than they had intended.
However, as important as it is to support parents, on its own it is not sufficient. We need to understand that parents who have been subjected to assault themselves as children, who have often had little or no education in methods of managing child behaviour, and who all too often are under enormous pressure need support.
When smacking bans have been brought in in those 58 other countries that already have them, there has not been a rush to litigation or a flood of parents locked up in jails. Back in 1999, research for the Children’s Society spoke to the experts themselves, the children. A seven year-old said:
“I was just thinking that if they changed the law then a lot of people will realise what they had done to their child and they would probably … be happy that the law was changed. If they don’t change the law they will think ‘oh well, the child doesn’t mind so we can keep on doing it’.”
That voice of a seven year-old is an excellent place to finish my argument.
I will not push this amendment to a vote. My extremely experienced and knowledgeable collection of supporters from your Lordships’ House persuaded me, somewhat against my natural inclinations, that that would not be the right thing to do at this time. Of course, that does not prevent the Government deciding to incorporate it into the Bill as its progress continues. I ask the Minister to consider that carefully. I am not expecting sudden action today, but certainly in future.
I have a further ask of the Minister: will she agree to meet campaigners, fellow Peers and me to examine the evidence and discuss ways forward or, if it is more appropriate, to approach the relevant Minister on our behalf to arrange such a meeting? In the meantime, I beg to move.
I now call the noble Baroness, Lady Whitaker. Is she there? No. Let us go on to the noble Baroness, Lady Walmsley. Lady Walmsley, we cannot hear you.
My Lords, I am sorry; I had not realised I had been called and did not hear the Deputy Speaker.
I am most grateful to the noble Baroness, Lady Bennett, for seeing the opportunity to bring this really important issue before your Lordships again. As she said, now is a very good time to return to a subject I first raised in your Lordships’ House 20 years ago, soon after I was introduced as a Peer. The time was right then, and it was also right when a group of us tried unsuccessfully to completely remove the reasonable punishment defence during the passage of the Children Act 2004. It is even more right now, as violence against children has increased during the Covid-19 pandemic. Any time is a good time to stop violence against children.
The fact is that if this country cannot give its children equal protection under the laws of assault, such as their parents enjoy, it cannot say that it values its children and protects their rights. The committee on the UN Convention on the Rights of the Child agrees and has been very critical of the UK. Public opinion also agrees: 20 years ago, 80% of the public thought it should be illegal for anyone to hit a child. Indeed, many thought it already was. I suspect it is even higher now. Most people think violence against a child is a particularly egregious act, especially when it happens in a child’s own home, from which she cannot escape, and is done by someone she should be able to trust to protect her.
Of course parents have a right to bring up their children to behave well, but there are many more effective ways of demonstrating right and wrong. In the 58 countries where the law bans parental violence against children, parents have been helped to learn better ways of carrying out their duty to discipline their child. It is often called “positive parenting”. Violence against a child is definitely negative parenting, and most young parents today agree and would not dream of hitting their child.
As the noble Baroness, Lady Bennett, has said, children learn by example. Parents who beat their child cannot be surprised if the child copies that behaviour and hits other children in the playground and, because violence begets violence, they may also grow up to beat their own children. Violence is also detrimental to the development of the child and should be regarded as an adverse childhood event—an ACE—deserving of intervention.
Recent research supports a ban on hitting children. A large long-term longitudinal study by Ma, Lee and Grogan-Kaylor, published in the Journal of Pediatrics in February, of a range of adverse child experiences with particular focus on violence against children, reached the following conclusion:
“ACEs and spanking have similar associations in predicting child externalizing behavior. Results support calls to consider physical punishment as a form of ACE. Our findings also underscore the importance of assessing exposure to ACEs and physical punishment among young children and providing appropriate intervention to children at risk.”
In other words, they found that hitting children does not stop them misbehaving; indeed it can make it worse and has an adverse effect on their development, so services with a duty to protect the child should intervene to stop it. That starts with the law of the land. In the UK, we have already acknowledged that a child who watches violence against its mother in the home is at risk of mental and emotional trauma. How much more trauma will a child suffer who is treated to the same violence himself or herself?
We all want to help parents with the hardest of tasks—bringing up a child healthy and happy—but the current law does not do that. It is discriminatory to children and unhelpful to parents. Hitting a child hard enough to cause a bruise is illegal, but some children do not bruise easily, so could be hit harder without the parents breaking the law. How does a parent know how hard they can hit a child before overstepping that limit? Of course, the answer is not to do it at all and find a better way that does not damage the child you love. The law is nonsense and must be changed.
People have realised this in other countries, including the other three in our own union. Scotland has banned and Wales is about to ban violence against children, and Northern Ireland is looking at it. It is instructive to look at how other countries did it; there is a common approach. When I was in New Zealand, I heard directly from the Minister there about how a lot of help was put in place for parents to learn better ways of disciplining children before removing the very damaging option that we are discussing today. Help with positive parenting and someone to turn to for advice—we need to do that too. It is not that difficult or expensive, but the benefits are enormous for families.
I have a final point. Sweden was the first country to ban parents from hitting children, over 40 years ago, yet Swedish prisons are not and were not full of caring parents who occasionally lost their temper and gave their child a trivial smack. By the way, most parents who do that regret it very much afterwards. Those who fear criminalising otherwise caring parents should remember that the CPS will charge someone with a criminal offence only if the situation meets two tests: first, there is a good chance of obtaining a conviction and, secondly, it is in the public interest. The situation I have just described would not fulfil those tests. However, the law on assault should be clear, helpful to parents and fair to children.
The Government need to show leadership here. When Sweden banned hitting children in 1979, there was not a majority of public opinion in favour of the change, as there is here, but its Government went ahead and did the right thing anyway. Now, Sweden could not get away with legalising hitting children as, I am pleased to say, strong public opinion would prevent such a move. I beg the Government to show similar leadership and accept this amendment, or do I have to spend another 20 years campaigning for it?
We are trying to get the noble Baroness, Lady Whitaker, but meanwhile I call the noble Baroness, Lady Hoey.
My Lords, I rise to speak against Amendment 82. I appreciate that the noble Baronesses who have tabled this amendment mean well, although their language is quite interesting because they have used the most extreme language. They talked about violence, battering and physical attacks. I do not see any need for a criminal ban on—I know the noble Baroness, Lady Bennett, did not want to use this word but I will say—smacking, or an end to the reasonable chastisement law.
It is important we remember that all the law currently allows for is a parent to, if they wish, use a very mild smack on the bottom or a tap on the back of the hand or leg. There is no evidence that this very moderate and limited defence has been misused to allow parents to get away with abusing their children. The idea that it leads to escalation—a parent using a very mild smack today will beat their child black and blue tomorrow—is such an insult to millions of normal, decent parents who would never dream of doing any such thing. You might as well say that shouting at your child should be banned, because that too can sometimes escalate.
It is a ridiculous and offensive notion and frankly, for me, some of the alternatives that this “good parenting” brings in which families could use to chastise seem much worse. If I was a child, my choice would be to have the quick smack and be outside playing again rather than being locked up in my room for three or four hours on my own with nothing or nobody to speak to. We have no idea what the psychological effects of that are on young children.
The noble Baroness, Lady Walmsley, talked about public support. We do not have that public support. We know there are no popular calls for a ban. It may be an issue which obsesses certain activists and people, but the idea that the public are clamouring for us to criminalise parents who smack is far from the truth. Polling in Scotland and Wales ahead of the smacking bans there demonstrates how unwanted and unwelcome these new regimes are: 76% of Welsh adults said no to changing the law in 2017 and 74% of Scottish adults opposed a smacking ban. I have not seen much discussion of it in Northern Ireland. Let us not pretend the Great British public have given a mandate to change the law. In my view and in most parents’ views, smacking is a reasonable option that responsible parents must be free to use if they see fit.
Journalists, campaigners and some of the noble Lords who have spoken are prone to claiming that “this study says this” or “that research says that” or “that psychologist says this” and it deserves to be criminalised. But if you actually look at the data, you usually find either that the researchers are active campaigners dressing their views up as science or that the research did not make the claims attributed to it. I am not aware of any reliable studies showing causation between gentle physical chastisement of the kind we are talking about and negative child outcomes. By removing the reasonable chastisement protection, tapping your child on the hand or the bottom would become a crime—an assault, as some of the noble Baronesses call it.
If this happens, the police and others would have a duty to report and investigate every case that came to their attention. Every instance of a loving mum or dad using a little smack in a reasonable and normal manner, perhaps when the child was in imminent danger, would suddenly be liable for prosecution. That cannot be anything but detrimental to that family’s trust in the authorities. Removing the safeguard would likely result in significant overreporting to social services. The twitching curtain brigade would love it.
There are probably thousands of parents using reasonable chastisement every day, and the idea that they would all stop overnight because we tell them to is, I am afraid, pretty naive. Even if only a fraction of those parents came to the attention of the authorities, it would place considerable pressure on the already overburdened social services and police, and this would dilute the resources available to help truly vulnerable children and their families. Some of them would eventually slip through the cracks and be overlooked. I believe that this would be the legacy of passing this amendment.
In all honesty, I fail to see how removing the reasonable chastisement defence helps families at all. It would increase the pressure on reasonable parents and dissolve their trust, and it would increase the pressure on our vital services and those most at risk. Finally, it would hinder the cohesion of some of the United Kingdom’s communities. Our nation has a wide diversity of communities; however, marginalised communities may be especially caught by the ban, because it would be likely to affect some more than others. If social services, the police and others are seen as interfering, that would only increase distrust and division.
I look around your Lordships’ House tonight—well, I do not see too many people, but I can see them on Zoom—and I wonder how many of its Members could honestly say that they were never smacked as a child.
Very seriously, I believe that this amendment would genuinely risk real child abuse being seen differently. If the public think and are told that smacking in the way that I have described is child abuse, I believe that the bar is lowered so much that the way other really serious child abuse is seen could be seriously damaged.
Families are the backbone of our society and they deserve all the support we can give them. The reasonable chastisement defence is, by definition, a reasonable law. I know that this amendment is not being put to the vote tonight. I actually wish it was; I am pretty convinced that noble Lords would vote against it, because the public know that this is not the right way to go, and it certainly should not be attached to a Domestic Abuse Bill.
My Lords, I thank the noble Baroness, Lady Bennett, for introducing this important amendment to the Bill, just as I did 16 years ago when the Children Act was making its way through this House. The aim has not changed: to allow children the same legal protection from violence that adults enjoy today—no more, no less.
While the aim has not changed, the times and society certainly have. In the 1990s, parents interviewed in confidence as part of a research study commissioned by the Department of Health admitted to very high levels of corporal punishment, with the admission of violence doubling when both parents were interviewed. Three-quarters of mothers said that they had already smacked their baby before its first birthday, which is before language has developed. Over 91% of children had been hit, with the youngest and most vulnerable hit most often. Almost half the children were hit weekly or more often. One-fifth had been hit with an implement, and 35% had been punished severely, which is defined as with the intention or potential to actually cause harm to the child. That included actions that were repeated, prolonged or involved the use of implements. Today, those children are parents.
In 2021, we find ourselves a year after national lockdowns began. The pressure on parents has been enormous, and we know that if a parent hits a child, it is usually in response to pent-up feelings. When parents have been forced to be indoors 24 hours a day, trying to work and look after their children at the same time, many parents have struggled to hide their frustration at one time or another.
The circumstances of the pandemic have only emphasised the need for many of the amendments that have been accepted by the Government already. The Government have done a great deal to ensure the safeguarding of children, but the state of the law on this undermines it.
A recent paper in the Archives of Disease in Childhood showed that in one hospital in 2020 in just one month, the number of cases of serious child injury rose by almost 1,500% compared with the same period in the previous three years, pointing to a silent pandemic of abuse in 2020. Ten children aged 17 days to 13 months had head trauma. This is just one of several such reports, confirmed by the 80% increase in NSPCC referrals.
Research clearly shows that corporal punishment has all kind of negative effects on mental health, parent-child relationships, increased anti-social behaviour and child aggression. Almost all abuse takes place in the context of so-called punishment or discipline. Sweden’s experience of banning smacking has shown that it benefits children and society as a whole, and 60 countries have now followed suit.
I will address the concerns of the noble Baroness, Lady Hoey. Loving, caring parents need to use physical actions at times, especially with young children: to protect them, to grab them and lift them, to restrain them and so on. The amendment would not interfere with this part of day-to-day parenting, or with the ability to punish in non-violent ways. But smacking can escalate to beating the living daylights out of a child. That is what the amendment seeks to address.
Most parents report that they regret having hit, but it escalates so easily into more serious violence. Children who are pinched, slapped, shaken and spanked are seven times more likely to experience severe violence such as punching, kicking or hitting with an object. They are being taught that the way to cope with feelings of frustration in oneself is to hit someone who is vulnerable. Aggression breeds aggression. Children must learn de-escalation and parents must set the example.
In 2022, a law banning the smacking of children in Wales will come into force, thanks to Julie Morgan’s leadership on the issue. Scotland passed such legislation in October 2019, and several people have seen at first hand how counting to 10 rather than a frequent quick slap has resulted in better child behaviour. Now England should follow. The amendment will not stem the tide of domestic abuse, but it will give the next generation the same protection in law from serious abuse that we aim to afford to adults. That is why I support it.
My Lords, this amendment attempts to repeal the defence of reasonable punishment as part of the Children Act. In my mind, that would effectively criminalise parents for reasonably chastising their own children.
In doing so, the amendment raises a number of ethical pitfalls that the state faces whenever it legislates to police private family life in a free society. Historically, we have recognised that state interventions into family life should be rare, proportionate and handled with due respect for parental autonomy. In recent years, we have sadly seen an unfortunate trend towards top-down overreach, and this amendment is a good illustration. In the whole of the Domestic Abuse Bill, with its focus on helping those abused in domestic settings or contexts, we still need to remember that this is not a green light to tear up all the norms of privacy and liberty when it comes to family life.
Essentially, the amendment would remove the legal defence of reasonable chastisement from parents who might occasionally smack their own children. Effectively, this declares that the Government know better than loving parents, who could find themselves vulnerable to charges of common assault just for being parents
Of course, there will be people here who might not approve of slapping. We have already heard from some. But that is their business. That is no justification for overruling other parents’ decisions, or their values. Should we assume that the state always knows best when it comes to child rearing? I am sure that those raised in care homes might have a different view.
The amendment is also entirely unnecessary, because it is already illegal to aim a smack at a child’s head or to hit a child with an object, as is any smack that leads to more than the temporary reddening of skin. In other words, unreasonable punishment is already against the law, and rightly so. The vast majority of society view violence aimed at children as abhorrent. They think that beating children should be not just illegal but morally condemned, as we all do. So what would this amendment outlawing even a reasonable use of smacking achieve?
The amendment states that
“battery of a child cannot be justified on the ground that it constituted reasonable punishment.”
Of course battery cannot be justified on the basis of reasonable punishment—but think about the use of that word, “battery”. It conjures up horrors, does it not? Why was that word used in this amendment? I noticed that, in campaigns to ban smacking in Wales and Scotland, one of the most egregious tactics of anti-smacking lobbyists was this irresponsible conflation of smacking with gross acts of violence. This rhetorical trick is shameless and shamefully distorts intention and context.
It is important to state for the record that violence is physical force intended to injure. In contrast, if a mum or dad smacks a five year-old child for being naughty, they have no intention of causing injury. Rather, they, like all of us, want to teach their child right from wrong, for example by chastising them for running in front of a car. This is driven by parental love, not a desire to injure. Conflating slapping with violence paints ordinary mums and dads as potential violent thugs or child abusers. It is just so insulting. It also shows a certain distrust of ordinary parents; tonight, we heard people describing smacking and beating the living daylights out of children in the same sentence.
For the noble Baroness, Lady Bennett, who argued that we should treat the smacking of a child as we would treat a bodily attack on a grown adult, again, let us think about context. Do we really believe that children should not be treated differently from adults? In the real world, parents do many things to their children that they would not dream of doing to another adult. When you order a child to bed, you do not order adults to bed, do you? You check whether your child’s bottom is clean; you would not do that to an adult. We treat children—especially our own—differently from adults. If you confiscate your teen’s Xbox or phone, we do not consider that theft because of the context. It is common-sense disciplinary action, as smacking can be. Smacking is not assault; it is not even comparable. So I hope that noble Lords agree that parents are better placed to judge when and how to discipline their offspring than any number of NGOs—even if they come waving state-approved parenting manuals full of best practice checklists and “Count to 10”.
Finally, the danger with overreach is that it expands who and what is criminalised. As I have warned several times during the passage of this Bill, and as the noble Baroness, Lady Hoey, pointed out, this could open the floodgates to complaints of minor incidents and overwhelm the police and social services, which are already overstretched. When I argued this in Wales in relation to the debate there, I was assured that the legislation was not about criminalising parents, but about sending a message. However, politicians cannot change the criminal law and expect the police and courts not to enforce it. It is not a communications strategy. Also, the Scottish Government encouraged the public to phone 999 if they witnessed a parent smacking their child; they also distributed leaflets aimed at children, urging them to report on their parents. Can you imagine how divisive, demoralising and damaging that is for family life? How does it protect children if the law undermines parental authority, or if families are ripped apart by damaging police investigations because a child was smacked? It would discredit the whole concept of domestic abuse, as well as child abuse, if we treated smacking as assault under this Bill. We ourselves would launch an assault on family coherence.
Finally, for many weeks now, we, in following this Domestic Abuse Bill, have focused on the dark side of family life. Earlier this evening, we heard harrowing tales of stalking, abuse, women at risk and so on. However, we must make sure that this does not poison our world view. We should avoid starting to see abuse everywhere. Behind closed doors is not a dystopian hellhole. The majority of families are joyous places of solidarity and socialising children. Sometimes they are messy. Sometimes they are argumentative. Sometimes there is a bit of shouting. Sometimes there is the odd smack. However, they are largely full of love. This amendment suggests otherwise and should be rejected.
My Lords, I thank the noble Baroness, Lady Bennett of Manor Castle, for tabling the amendment, which I support on three grounds.
First, and perhaps most important, I support it on the grounds of children’s rights. Article 19 of the UN Convention on the Rights of the Child says that Governments must do all they can to ensure that children are protected from all forms of violence, abuse, neglect and bad treatment by their parents and anyone else who looks after them. Yet successive Governments have failed to implement the recommendation of the UN Committee on the Rights of the Child, that they should prohibit, as a matter of priority, all corporal punishment in the family, including the repeal of all legal defences. In the past, the Joint Committee on Human Rights concluded that the defence of reasonable punishment was incompatible with children’s rights under various human rights treaties and recommended that it be replaced with a provision drafted to remove that defence and give children the same protection from battery as adults.
Secondly, as we have already heard, despite the assertions of the noble Baroness, Lady Hoey, there is a growing body of evidence that indicates that smacking—or whatever you want to call it—can have an adverse, long-term impact on children’s mental health and behaviour, as well as a negative impact on parent-child relationships, rather souring the happy, halcyon image of the family that the noble Baroness, Lady Fox, just painted. Back in 2015, four UK Children’s Commissioners called for the immediate prohibition of corporal punishment in the family. That was over five years ago.
Thirdly, is the example set not just by most other European and OECD countries but, as we have heard, by our own devolved nations of Scotland and Wales. It is no coincidence that, unlike the Westminster Government, these devolved nations treat the UN convention as a guiding light in their policy-making on children. If children in Scotland and Wales are no longer to be at risk of smacking on the grounds it constitutes reasonable punishment, what possible justification is there for children in England to continue to be at risk? I am afraid I do not take the arguments put by the noble Baroness, Lady Fox, as providing any such convincing justification.
No doubt the Minister will argue that this Bill is not the place for such an amendment, as did the noble Baronesses, Lady Fox and Lady Hoey. That may be so, though the fact that we are debating it today means it is in the scope. But I welcome the opportunity it has given us to debate the issues it raises, and I hope the Minister will take back to the Department for Education the messages raised by the majority of those contributing to the debate and seek the meeting called for by the noble Baroness, Lady Bennett.
There is a wider message gaining growing support in civil society: we need a Cabinet-level Minister with special responsibility for children and their needs, concerns and rights or, at the very least, the restoration of such a post at Minister of State level. I hope that child-friendly developments in England and Wales will lead to change in England too, including the repeal of the defence of reasonable punishment.
My Lords, I am afraid that I cannot support Amendment 82. I very strongly support the comments of the noble Baronesses, Lady Hoey and Lady Fox. The defence of reasonable chastisement was created to stop parents being prosecuted for assault when they did not deserve to be prosecuted. If a parent hits a child in a way that causes any kind of mark—the CPS would say anything more than a transient reddening of the skin—then they have used unreasonable chastisement and can quite properly be prosecuted. The reasonable chastisement defence helps to ensure that good parents do not find themselves accused of being a child abuser for doing something perfectly gentle and humane. This defence therefore exists, first, to keep children safe and, secondly, to protect loving, decent parents. The current law does not need amending; it achieves the right balance. Who, after all, wants to criminalise reasonable behaviour?
Friends of ours had a child taken from their family by overenthusiastic social workers, quite wrongly, which caused enormous distress. It was because of an unexplainable bruise. I expect that most of us experienced reasonable chastisement when we were children. In 2017, a ComRes poll found that this was the experience of 85% of adults. If reasonable chastisement was so harmful that it deserved to be criminalised, you would expect eight out of 10 adults to manifest the same symptoms as children who have been abused. But of course they do not. How many of us whose parents loved us, cared for us and taught us right from wrong think our childhoods would have been better if our parents had been prosecuted merely for giving us a well-deserved smack on the bottom? That is what this amendment would mean for families today.
Parents know their own children. They are best placed to judge whether a tap on the hand of a toddler who has resisted all other blandishments is the right call. I would strongly challenge the assumption that every parent who smacks their child should be described as hitting and violent. None of us approves of such actions. Parents have a huge range of tactics and strategies at their disposal to help their children grow up into kind, diligent adults: gentle instruction, words of praise, the naughty step and withdrawing privileges. But for many parents, reasonable chastisement sometimes fits the bill. Who are we to make criminals of those whose parenting philosophy differs from our own on this point?
For every person who claims that such common-sense parenting is damaging, we have thousands of sensible parents living in the real world who are convinced otherwise. Opinion poll after opinion poll shows that three-quarters of the public do not want to expose parents who use reasonable chastisement to the full force of the criminal law. This amendment is neither necessary nor wanted by the public. We should not use the criminal law to enforce political fashions and condemn the mums and dads of today for making the same decisions that many of us have made. We must let parents decide for themselves. Common sense should not result in a criminal record, and that is not an alarmist statement.
Last year, as we have been told already, Scotland passed a law banning smacking, while telling critics again and again that removing the reasonable chastisement defence would not result in parents being criminalised. Yet less than a month before the ban came into effect, the Scottish Government published advice telling members of the public to dial 999 to report a crime in progress if they saw a parent smacking their child. We are only months into the implementation of that law in Scotland, so we must wait and see what happens once the authorities begin to enforce it in earnest. So far, there is a lack of evidence that criminalising parents has reduced domestic abuse in countries that have introduced so-called smacking bans.
Instead of attacking good parents we should be reassuring them of our support, especially after the challenging year that families have experienced. There would be a real danger in including this amendment in the Domestic Abuse Bill. Loving parents are not domestic abusers and it is insulting to suggest otherwise. A gentle tap on the hand to discourage a persistent two year-old from putting their finger in every plug socket they encounter is not child abuse but responsible parenting. Abusive parents are already caught by the law, but this amendment would task police and social services with targeting not abusive but loving parents. It would be a serious mistake.
My Lords, we shall now hear from the noble Baroness, Lady Whitaker.
My Lords, I am very pleased to add my name to this amendment, so ably moved by the noble Baroness, Lady Bennett of Manor Castle. It is high time that the rights of children in respect of assault were given proper recognition. Of course, such assaults—otherwise termed corporal punishment—were not always regarded as wrong, and I can see that some people still do not regard them as wrong, but norms change, thankfully. Some newly accepted norms we think important enough to put into law, so that we can affirm them as a society. This particularly applies to instances of violence, which we have heard a lot about in this debate. Duelling was acceptable until it was made illegal, and indeed corporal punishment in schools was common until it was legally banned, as it was eventually—though shamefully late—in institutions for children with learning disabilities. Smacking within the family was accepted until the last Labour Government took the small step of banning it, but only if it left a mark—an odd concept in these days of valuing diversity of colour, as my noble friend Lady Howells, now retired, pointed out.
Of course, conduct does not always follow the law, which is why enforcement is a necessary corollary, but in this case the law lags behind popular opinion. When I last looked at the subject, the majority were in favour of making smacking illegal. Libertarians might argue that if the norm is changing, why have a law? Indeed, we have heard some even more extreme arguments this evening. I think the contemporary answer is that in a diverse society, if generally agreed changes in conduct are not given a push, traditional forms of behaviour, rather than the fast becoming socially accepted standard, will still prevail and harm children. Now, more than ever, we need laws that unite us and affirm the important values of dignity and respect for others, especially if they are weaker, smaller or more vulnerable. It is time for assault on children to be banned everywhere.
My Lords, what a very interesting debate this has been; I did not expect this. I am grateful to the noble Baroness, Lady Bennett, for tabling the amendment. I also commend the work of my noble friend Lady Walmsley, who first raised this issue 20 years ago. The statistics I have show that 20 years ago some 80% of the public thought hitting a child should be illegal. What has happened in the intervening years to warrant parents’ outrage—as described by the noble Baroness, Lady Hoey—at the prospect of not being able to smack their children, I am not entirely sure. As I have been involved in this subject before, I was surprised to learn that the corporal punishment of children is not illegal already. It contravenes the UN Convention on the Rights of the Child, as the noble Baroness, Lady Lister of Burtersett, reminded us.
Turning to the reasoning for amending this Bill now, we know that violence begets violence, as described so eloquently by the noble Baroness, Lady Finlay. As she said, there is a pandemic of violence in this country and the vast brunt of domestic abuse falls on women, having been perpetrated by men. It has been a distressing experience for me to have to go through all the ways and circumstances in which this happens, but those who perpetrate violence always pick a victim weaker than they are. Some men do it to women, but some men and women do it to children.
The noble Lord, Lord Curry, gave us a case study of a child who had been taken away from their parents because of an unexplained bruise, implying that safeguarding should not be properly investigating things such as bruising of children. In my view, better safe than battered.
I do not need to rehearse the arguments about how a culture of violence is passed from generation to generation or how we will never stop this happening until it is nipped in the bud. A child who has not had violence perpetrated on them is far less likely to become a perpetrator themselves.
My noble friend Lady Walmsley makes the important point that in this country we do not afford our children the same protections as their parents. The Bill includes children within the definition of a victim. How can it be illegal to hit the mother or the father but legal to hit the child? Under the law as it stands, it is not illegal to hit a child unless you raise a bruise. That is all right then—you can commit any of the other actions of domestic abuse described under Clause 1(3) and hit a child hard, but not so hard that others can witness the outcome of what you have done.
The only way to stop this pandemic of abuse is to stop transmission from one generation to the next and train perpetrators to handle differently situations where violence is likely to occur.
Many other excellent points have been made by other noble Lords. There is no need for me to detain the House by repeating them. They are doing it in Scotland; they are doing it in Wales; why can we not do it in England? The noble Baroness, Lady Fox, says that if we did so, we would open the floodgates to trivial complaints. This has been refuted in this debate; the noble Baroness, Lady Whitaker, summed this up by saying that norms change. I hope the noble Baronesses, Lady Fox and Lady Hoey, are swimming against the tide. I and my party strongly support this amendment.
I agree with the noble Baroness, Lady Burt of Solihull, that this has been a very interesting debate, but I do not intend to detain the House long.
Amendment 82, moved by the noble Baroness, Lady Bennett of Manor Castle, would repeal Section 58 of the Children Act 2004 and provide in this Bill that:
“In relation to any offence, battery of a child cannot be justified on the ground that it constituted reasonable punishment.”
The 2004 Act set out safeguards on the physical punishment of children. It provides that battery of a child, which covers the smacking of a child, could not constitute reasonable punishment if it was related to certain offences, I think such as grievous or actual bodily harm, cruelty or wounding. This amendment would widen that to all situations and circumstances.
I note that the noble Baroness, Lady Bennett of Manor Castle, has said that she will not push for a vote on her amendment, which seeks a significant change to existing law under the Children Act 2004. I can understand why she has made that decision. When the Children Act 2004 was going through Parliament, the debates on its terms were lengthy and included the issue of whether smacking should be permitted as a reasonable punishment in any circumstances under that Act.
The kind of significant change to existing law being sought in this amendment on children should be the subject of consultation and consideration, providing a proper opportunity for the case and supporting evidence, both for and against such a proposition, to be fully debated, tested and aired prior to a decision being made on whether to agree to change the existing law. That level of scrutiny cannot be achieved through this amendment on Report stage of this Bill and, for that reason, we believe that the noble Baroness, Lady Bennett of Manor Castle, while certainly raising an important issue on what is or is not acceptable in the treatment of children, is right in her decision not to push this to a vote.
The noble Baroness, Lady Bennett of Manor Castle, is also justified in drawing attention to developments on this issue in Scotland and Wales that are in line with her amendment, and seeking an undertaking from the Government to listen to and examine the evidence for change, and consider whether the current legal position as set out in the 2004 Act should be amended. I wait to see if the Government, in their response, will indicate a willingness to do this in light of the points that the noble Baroness, Lady Bennett of Manor Castle, made in moving her amendment.
My Lords, as the noble Baroness, Lady Bennett of Manor Castle, has explained, her Amendment 82 seeks to repeal Section 58 of the Children Act 2004 and to replace it with a provision that removes the defence of reasonable punishment from parents, or persons acting legally as parents, to charges of battery against a child in relation to any offence.
I make it clear at the outset that the Government absolutely condemn abuse and violence towards children. Accordingly, Clause 3 was added to the Bill in another place to recognise that a child is considered to be a victim of domestic abuse, including physical abuse, in his or her own right, if they see, hear or experience the effects of domestic abuse and are related to either the targeted victim of the abuser or the perpetrator. The Government are aware of recent legislation in Scotland and Wales that removes the defence of reasonable punishment. While parents are responsible for disciplining their children, they must do so within the boundaries of clear laws against violence towards children in England.
Section 58 of the Children Act 2004 changed the law significantly to give children greater protection. The defence of reasonable punishment can no longer be used when parents or those acting in place of parents are charged with assault causing actual or grievous bodily harm or child cruelty. The law in England provides that parents and other adults who are acting legally in place of the parents may plead a defence of reasonable punishment to a charge of common assault against a child. Common assault amounts to where an injury is “transient and trifling”.
Following the 2004 Act, the Crown Prosecution Service amended its guidance so that it acknowledges the particular vulnerability of children. An injury that would lead to a charge of common assault where the victim was an adult would normally be charged as actual bodily harm or a more serious offence if the victim were a child. Parents who cause injuries to children such as grazes, scratches, abrasions, bruising, swelling and superficial cuts are already at risk of being charged with actual bodily harm and would have no defence of reasonable punishment. Child protection agencies and the police treat allegations of abuse very seriously; they will investigate and take appropriate action, including prosecution, where there is sufficient evidence of an offence having been committed.
Statutory guidance, Working Together to Safeguard Children, sets out what professionals and organisations need to do to safeguard and promote the welfare of children and young people. Further statutory guidance entitled Keeping Children Safe in Education also sets out what staff in schools and colleges should do to safeguard children and young people.
Relationships, sex and health education is now a statutory part of the curriculum. The focus on healthy relationships in primary and secondary schools will help children and young people who are experiencing or witnessing unhealthy relationships to know where to seek help and report abuse, as well as addressing inappropriate behaviour, harassment, abuse or exploitation. In short, there are already strong safeguards in existing legislation and statutory guidance that protect children from physical harm as a form of punishment. The current legal position is clear, appropriate and protects children from abuse and harm. The Government do not accept that the law, as it stands, is in breach of the United Nations Convention on the Rights of the Child; we believe that it complies with Articles 19 and 37 on abuse and violence towards children.
We accept that there are differing views on Section 58 of the Children Act, and we have heard them expressed again on both sides in what has been a lively and informative debate, including some very powerful speeches against the amendment from the noble Baronesses, Lady Hoey and Lady Fox of Buckley, and my fellow Northumbrian, the noble Lord, Lord Curry of Kirkharle. As the noble Baroness, Lady Bennett, noted, this has been a long-running issue. I am glad that she has listened to the counsel of her supporters and agreed not to press this issue to a vote this evening. She and I are equally new to your Lordships’ House as we were introduced around the same time, but I agree with those who have said that this is too an important an issue to be slipped into the Bill at this late stage. However, she rightly used the opportunity to ask some questions and seek a meeting. That is properly a matter for the Department for Education, but I shall pass a request for a meeting on and ensure that it replies to her directly about it. With that, and having sparked this lively and interesting debate, I hope that she will now be content to withdraw her amendment.
My Lords, I thank the Minister for his answer and everyone who has participated in this debate. I share the feeling of the noble Baroness, Lady Burt, about the need to draw a very deep breath before I begin. I think many people in British society would be surprised at the tone of some of the arguments presented this evening by those opposing this amendment. I suspect the noble Baroness, Lady Walmsley, would feel that some parts of our political landscape have not changed very much in 20 years. However, that is perhaps because there is a feeling that that part of the political landscape is very much swimming against the tide of public opinion—I might even say the tide of history.
I thank the Minister for his offer to pass on a request to the department. I will be pursuing that very vigorously, and I very much hope that we will have a ministerial meeting. These are issues that need to be raised at the highest level, particularly given what is happening in the nations around us. I welcome the Minister’s comments about how much progress is being made in sex and relationship education, something I have long been campaigning on. It is something that needs to be monitored very closely to make sure that it is meeting the needs of our current society.
The noble Lord, Lord Russell, rightly identified the reasons why I was persuaded not to push this further at this moment. This was not on the list of amendments in Committee and it is not normal practice to go further at this stage, but it is obvious that the level of debate is going to be stepped up significantly.
I am aware of the hour, so I shall be brief, but it is worth drawing together the noble Baronesses, all of whom are veterans of this campaign. The noble Baroness, Lady Walmsley, made very important points about the context in which this debate is happening, which is the Covid pandemic, and about how we now understand so much more about adverse childhood experiences and their impact on children. That is a reflection of how far the science has moved on in the past two decades. Indeed, the noble Baroness, Lady Finlay, who has an expert’s perspective, acknowledged how the current law undermines the Government’s efforts in child welfare and other areas and gave an expert account of what is being seen in our hospitals and by our doctors.
The noble Baronesses, Lady Finlay and Lady Lister, focused on rights. We are talking about children’s rights to be protected from all forms of violence; that is the crucial issue here. In passing, I offer my support to the noble Baroness, Lady Lister, on the need for a Minister for children. We have seen an acknowledgement of the need for children’s commissioners, which has been hugely valuable, but we need to go a step further, closer to the centre of government.
The noble Baronesses, Lady Hoey and Lady Fox, took issue with the nature of the language that I used. A better response could perhaps be given by one of the noble and learned Members of your Lordships’ House, but from my lay legal knowledge I point out that “battery” is not a rhetorical device but the description of a common law offence under English law. When we talk about violence, we are talking about physical attacks and those are the words that we would use when referring to what happens between two adults. We are talking about exactly the same thing. In fact, we are talking about an interaction that we might see between a very large and heavy adult and a very light, small adult—the imbalance of power is much greater.
I also pick up on the comments of the noble Baroness, Lady Hoey, on public opinion in Wales. I am not sure which survey she was referring to, but the Public Attitudes to Physical Punishment of Children: Baseline Survey, 2018 found that 62% of parents and caregivers of children under seven disagreed with smacking. Only 5% of parents strongly agreed that it was necessary. Those are the modern parents to which other noble Baronesses were referring.
I take issue with the comments of the noble Lord, Lord Curry of Kirkharle. I paraphrase slightly but he more or less said, “It happened to 85% of adults in the past and we have turned out all right, haven’t we?” Reflecting, as the whole of our society has been doing, on the level of misogyny and violence against women and girls, I very strongly question that conclusion. I would add, as several noble Baronesses have said, that violence begets violence. We know that that is the factual truth.
To address the point made by the noble Baroness, Lady Hoey, that all the research was some kind of anthropological activist research, I point out that among the long list of organisations backing a ban on assaults on children, we have the Royal College of Paediatrics and Child Health, the Royal College of General Practitioners and the Professional Association for Childcare and Early Years. These are not activists or campaigners; they are the professionals who know and are gravely concerned about the well-being of the children in their care.
I am restraining myself, noticing the hour. I will leave this here for the moment, but we are past time in taking this action. It is happening all around us geographically, all around the world. I do not agree with the Minister’s conclusions about complying with the UN Convention on the Rights of the Child. I very much hope—indeed, I am confident—that the noble Baroness, Lady Walmsley, will not need to spend another 20 years campaigning on this issue. In the meantime, I beg leave to withdraw the amendment.
Amendment 82 withdrawn.
83: After Clause 72, insert the following new Clause—
“Duty to report suspected abuse
A local authority must ensure that, where any of its employees suspects in the course of carrying out a financial assessment for adult social care that a person is the victim of domestic abuse, the employee reports the suspected abuse to a relevant social worker or the police.”
My Lords, in moving Amendment 83, I will speak to Amendment 84. I am introducing these two amendments again on Report as I believe the issue they seek to highlight regarding older adults needs considerably more attention than it has received to date. After a helpful meeting with the Minister last week, I will not now be putting these amendments to a Division. However, I would like to raise a few important points.
At earlier stages of the Bill, I cited polling data from Hourglass—formerly called Action on Elder Abuse—conducted in 2020 which found that one in six adults over the age of 65 has experienced some form of abuse. That is 2.7 million older people in this country who have experienced abuse. Yet despite this, the abuse of older people is not taken seriously by many. Older people are victims of physical, financial, sexual and psychological abuse, and many others suffer abuse due simply to straightforward neglect.
These two amendments, debated in Committee and debated again today, are by no means the only measures that could or should be put in place to safeguard against the abuse of older adults. But both Amendment 83, which places a duty on local authorities to report suspected abuse, and Amendment 84, which gives registered social workers the powers to enter a private residence to investigate suspected abuse, are concrete steps to improve the reporting and investigation of this often horrendous crime.
Amendment 83 would reinforce existing safeguards practised by local authorities and duties of care detailed in the Care Act 2014. The draft statutory guidance that the Government intend to issue once the Bill gains Royal Assent places a greater duty on local authorities to support victims of abuse.
The intention of this amendment is to ensure greater consistency throughout the country with regard to the reporting of suspected abuse. At present, some authorities have robust processes in place to address this, while, sadly, others do not. Critical to this working will be a stronger emphasis on training and learning to identify potential signs of domestic abuse. Also, it is important that joined-up working between local authorities and other relevant agencies occurs throughout the country to ensure a co-ordinated and swift response where there is suspected abuse.
Amendment 84, concerning powers of entry for registered social workers, addresses the fact that at present, powers of entry are given to the police only where life and limb are at risk. This life and limb threshold is far too high. The proposal would bring England in line with legislation in both Scotland and Wales, where social workers have powers of entry. While obstruction of social workers is rare, stronger processes need to be in place where suspected abuse cannot be investigated.
There needs to be a balance when considering these issues and many would be wary of expanding powers of entry too far. But again, when 2.7 million older people have experienced abuse and in most cases the abuse is not even reported, it is not acceptable to say that the status quo is working. Obviously, it is not.
I had the opportunity to meet with the Minister the noble Baroness, Lady Williams, last week regarding these two amendments. The discussions we had were constructive, and she indicated that the Government are willing to do more work in this area to strengthen safeguarding against abuse of older people. I eagerly await her response or the response of the other Minister at the conclusion of the debate, which I hope will address the points I have made today.
The noble Lord, Lord Naseby, has scratched, so the next speaker will be the noble Lord, Lord Rooker, and the noble Lord, Lord Hunt, will follow the noble Baroness, Lady McIntosh.
My Lords, I think I heard the noble Baroness, Lady Bennett of Manor Castle, say “bearing in mind the time of day” three times. I will say it only once: bearing in mind the time of day, I rise to support the noble Baroness, Lady Greengross. I spoke briefly on this in Committee. She is quite right not to press this to a vote. Notwithstanding the lateness of the hour or where it is in the Bill, more work needs to be done. I was not present, but I would be very pleased to learn the outcome of the meeting with the Minister. As I said in Committee, while I support the general thrust of both amendments, I could nitpick my way through some of the detail.
My central point, particularly in relation to Amendment 84, is that, like some of the other amendments we have debated today, it sends an incredibly powerful message to perpetrators. At the moment this problem is behind closed doors and not taken seriously among older people, notwithstanding the results of the polling that the noble Baroness, Lady Greengross, gave—which is pretty bad, of course. I can remember constituency cases in which similar kinds of things happened but it was always difficult to nail down, given the age of the people involved. The fact of the matter is that abuse takes place. Social workers having the power to force entry—they would do it not on their own but only with the police present anyway; and, as the amendment says, it would mean they had already been refused entry—would be a message to the perpetrators.
It would be incredibly powerful if the Government were able to take forward the issue of older people and the abuse they suffer, simply because it is not highlighted. It is not politically sexy; it is a dark and closed area for many people. The noble Baroness, Lady Greengross, is absolutely right to bring the issue back on Report. It will not be the last time we hear of this. I look forward to a positive response from the Minister to be able to give some comfort to those involved and a bit of strategy to send a message so that those perpetrating know that more action can be taken. Of course, the idea is to stop them perpetrating the abuse.
My Lords, I thank the noble Baroness, Lady Greengross, for bringing forward Amendments 83 and 84 on Report. I congratulate her on the progress that appears to have been made, particularly in light of her meeting with the Minister, which is very welcome news indeed.
I say that because, in connection with Amendment 83, I know there was a certain reluctance on the Government’s part to accept that this form of abuse against older people constituted domestic abuse. To a certain extent, I can understand that level of reluctance. I do not know what we would call abuse of an older person. If it is a younger person, the local authority acts in loco parentis in its responsibility for adult social care. This is, if you like, the reverse of “in loco parentis”; it is responsible for the adult social care for an older person. I believe progress has been made by these amendments being brought forward at this stage. It is absolutely essential that the local authority steps in in this way because, where no family members are available, the older person has no one else to turn to but the local authority acting in that capacity.
I also lend my support in principle to Amendment 84 for the reasons I gave in Committee. It is very important that we equalise the law as relating to powers of entry across the four nations of the UK. Subject to what my noble friend says in summing up this small group, I see absolutely no reason why we should be out of line with Scotland and Wales.
Finally, I ask my noble friend to give us a little more meat on the bones, since the noble Baroness, Lady Greengross, is not pressing these amendments to a vote at this stage. Could we have a few more details of what government action is proposed, the direction of travel and, ideally, a timetable?
My Lords, I am also very glad to support the noble Baroness, Lady Greengross, in her Amendments 83 and 84. She has been such an extraordinary campaigner for older people and, years ago, she brought the abuse suffered by them to national and international attention.
We have made considerable progress. The acceptance of the amendment of my noble friend Lady Lister means that the offence of “controlling or coercive behaviour” under Section 76 of the Serious Crime Act 2015, which originally covered only behaviour by a family member when they are living with their victim, will be amended so that it applies to “controlling or coercive behaviour” by a former intimate partner that takes place post separation, or by a family member who does not reside with the victim. This is real progress for old people suffering from abuse.
However, there is an argument for going further. I will reflect back on the words of wisdom of Gary FitzGerald, formerly CEO of Action on Elder Abuse, who stated that:
“Older women can have a higher level of physical, emotional and particularly financial dependence on perpetrators, and will often have experienced the abuse for a much greater period of time. It is those psychological and emotional relationships that are crucial in considering coercive control ... The people who primarily abuse older people are their own families—sons and daughters, nieces and nephews, and grandchildren. They exploit family relationships, and this can often continue after the intervention of statutory services.”
The argument put forward by the noble Baroness, Lady Greengross, is that you need her amendment to deal with these types of situations.
In Committee, the noble Baroness, Lady Williams, said:
“Local authorities are well equipped to identify, investigate and address suspicions or cases of domestic abuse where the individual has existing care and support needs or is known through other means. There are mechanisms and clear professional responsibilities in place to ensure the safety of suspected or known victims.”—[Official Report, 10/2/21; col. 404.]
She was not convinced that the amendments of the noble Baroness, Lady Greengross, would add value to “existing rules and processes”. In a sense, this repeats an argument that the noble Baroness, Lady Williams, has used throughout the Bill: that practice is at fault, not the legislative structures. The problem is that, in relation to the issues raised by the noble Baroness, Lady Greengross, it is far too patchy, which is why we are using the Bill to raise issues and seek to get some statutory provision. I know that she hopes for a positive response from Ministers, which is to be welcomed. However, it would be great to be able to finish the job, in a sense, and do everything we can to protect older people from the abuse that I am afraid they suffer all too often.
My Lords, I am pleased to speak to these amendments, so ably introduced by the noble Baroness, Lady Greengross. The hour is late, and I do not wish to add much to what has already been said. In Committee, I highlighted that:
“How we treat our vulnerable is a reflection of our society … We need a zero-tolerance attitude to abuse, whatever the age of those involved.”—[Official Report, 10/2/21; col. 400.]
When we last debated this issue, the Minister said that local authorities are already equipped with the powers in Amendment 83 and that “the police and others” already have the right of entry in Amendment 84.
I agree with the noble Baroness, Lady Greengross, that, in spite of this, there are still problems. The elderly are among the most vulnerable in our society, and it is important that they are adequately protected. As such, I hope the Minister will be able to highlight today how protection for the elderly will be strengthened.
My Lords, this is one of the few amendments to the Bill that are intended to address elder abuse, and I commend the noble Baroness, Lady Greengross, for her years of campaigning for older people. Clearly, it is a big problem, with stark findings from the charity Hourglass that one in six adults over 65 has suffered some form of abuse, and 40% of this is financial abuse.
At previous stages the noble Baroness the Minister did not seem particularly sympathetic to these amendments, citing systems and procedures already in place for spotting and reporting signs of financial abuse in local authorities. But in her subsequent letter to the Minister, the noble Baroness, Lady Greengross, counterchallenges that duties under the Care Act 2014 are not implemented consistently by local authorities. I wonder if the noble Lord the Minister recognises this picture. Would he be willing to commission some investigation to check this out? I was mollified by the words of the noble Baroness the Minister in Committee, but now I wonder.
Regarding powers of entry, the Minister expressed concern in Committee that social workers are not trained for effecting entry and may be putting themselves in harm’s way. In her follow-up letter, the noble Baroness, Lady Greengross, counters that it is naive to imagine that social workers are never in harm’s way and are unused to facing confrontational situations in the course of their job anyway. In the letter, she says that
“powers of entry are only given to the police in cases where ‘life and limb’ are at stake.”
So there appears to be a gap between police powers to act and refusal to allow entry to the social worker by a suspected controlling abuser.
The noble Baroness compares safeguarding powers in Scotland and Wales to those in England and finds them wanting. Would it not be possible to look at this again? I would be very interested to know how often powers to enter are needed and sought. I hope the Minister can enlighten the House so that we might understand the scale of the problem. On the one hand, we have the evidence of Scotland, where the knowledge that the social worker has the power to enter creates an expectation that they may enter, as mentioned by the noble Lord, Lord Rooker; but on the other, there is the risk to the social worker to consider, as outlined by the noble Baroness the Minister. I am a bit more ambivalent this time around, and I look forward to hearing what the noble Lord the Minister has to say.
Amendment 83, moved by the noble Baroness, Lady Greengross, would require a local authority to ensure that, where any of its employees suspects in the course of carrying out a financial assessment for adult social care that a person is the victim of domestic abuse, the employee reports the suspected abuse to a social worker or the police. Amendment 84 would give a magistrates’ court the power to permit a registered social worker to enter a premises by force if the social worker has reason to believe an occupant may be a victim of abuse, and they have been refused entry by other occupants.
We are of course very much of the view that everything must be done to reduce the incidence of domestic abuse, not least domestic abuse against older people, who can be particularly vulnerable and against whom such abuse can be even more of a hidden crime than abuse experienced by younger people. I pay tribute to all the work that the noble Baroness, Lady Greengross, has done over many years on behalf of older people to ensure that their interests and concerns are not overlooked and forgotten.
A statutory duty under the Care Act 2014 already exists on local authorities to make inquiries where they suspect abuse, although apparently performance on this varies considerably. Ensuring that employees can recognise the signs of domestic abuse, and then report it, is a training issue, and we have already had debates on the importance of training, led by my noble friend Lady Armstrong of Hill Top, when certain assurances were given by the Government. Reporting abuse, what happens to investigate and deal with it once it has been reported, and the priority it is given, are crucial. A key factor is multiagency working and ensuring that an awareness of abuse runs through every agency. It is crucial that this is monitored effectively to ensure that it is working properly.
The noble Baroness, Lady Greengross, said that she does not intend to press her amendments to a vote, following discussions with the Government, presumably in the light of what was said by the Government during those discussions. I presume that in their response the Government will refer to any undertakings that they have given, and I am sure that the noble Baroness, Lady Greengross, will not be the only one monitoring the impact of any such undertakings.
My Lords, I am grateful to the noble Baroness, Lady Greengross, for further highlighting the plight of older victims of domestic abuse, and for tabling amendments which seek to tackle these important issues. I am replying on behalf of my noble friend Lady Williams of Trafford, who I know found their discussion on the matter last week extremely helpful.
The Government are committed to preventing and reducing the risk of harm to people in known or suspected vulnerable situations. An effective adult safeguarding system which works across agencies to identify incidents or risk of harm, as well as acting on and ultimately preventing them, is central to this. We take the issues that the noble Baroness has raised very seriously and know that a well-trained and empowered adult social care workforce will be vital in tackling them. Social work is the lead profession for adult safeguarding duties under the Care Act 2014 and the Government are committed to ensuring that those working in it are well informed and trained to carry out their roles effectively. For this reason, the Chief Social Worker for Adults is developing a practice guide to support adult safeguarding teams within local authorities, to ensure a consistent and person-centred statutory response and quality safeguarding of adults with care and support needs. This guide will be consulted on and published this year.
We have considered Amendments 83 and 84 further and do not believe that they will add value to existing roles and processes, or that they are needed to improve outcomes for older people experiencing domestic abuse. In relation to Amendment 83, all local authority employees are expected to undertake safeguarding training, ensuring that they can identify any concerns of elder abuse and report these through existing escalation routes where necessary. In some instances, this may require making a report to the police, or making a referral under Section 42 of the Care Act 2014, which places a duty on a local authority to make inquiries, or to ask others to make inquiries, where it reasonably suspects that an adult in its area is at risk of neglect or abuse, including financial abuse.
On Amendment 84, the police have existing powers of entry ensuring the protection of victims of domestic abuse and other instances of exploitation and harm. These existing powers are sufficient and appropriately given to the police, who are well equipped to respond to threats from perpetrators of domestic abuse and to gain entry to a home where necessary. Extending powers of entry to social workers risks placing them in potentially unsafe and harmful situations which they are not equipped to deal with. It would also not be appropriate for a social worker to have powers that extend beyond their remit of supporting people with care and support needs, and they would not be trained to respond in these circumstances. Local arrangements will be in place to enable effective joint working to investigate instances where an adult must be safeguarded, which would include the police, health and social care professionals, and providers.
I also point to Clause 73, which enables the Secretary of State to issue guidance relating to the definition of domestic abuse. The draft guidance recognises that older people can be victims of domestic abuse and that they may experience this abuse differently. This guidance is intended to support all responding agencies to understand domestic abuse. Indeed, under Clause 73, any person exercising public functions to whom guidance is issued must have regard to the guidance in carrying out those functions.
We will be publishing the updated statutory guidance in draft for a formal consultation shortly after Royal Assent. We would welcome the noble Baroness’s engagement on the guidance, as well as that of the specialist organisations advocating for older victims, such as Hourglass. My noble friend Lady Williams has asked me to say that she would be more than happy to put the noble Baroness, Lady Greengross, in touch with her officials working on the issue.
In addition, Part 4 places a duty on tier 1 local authorities to provide support within safe accommodation for victims and their children. We have been clear in the statutory guidance to accompany Part 4 that victims and their children with relevant protected characteristics, as set out in the Equality Act 2010, must be able to access the support that they need. Under this duty, we expect authorities to ensure the appropriate and adequate support within safe accommodation that meets the needs of all victims, including those with relevant protected characteristics and/or multiple complex needs, and those whose support needs might not be able to be met within more general domestic abuse safe accommodation, such as victims over the age of 65.
We recognise the importance of ensuring that existing processes and practices are robust enough to offer protection to people at risk of or experiencing elder abuse. We also know that Covid-19 has presented new and, in some instances, heightened existing challenges in the adult safeguarding system. There is work under way across government and across health and social care partners better to understand and tackle these issues during and beyond the pandemic.
As I have indicated, there is work under way to improve the quality of practice within adult safeguarding teams, undertaken by the Chief Social Worker for Adults. Although we do not think that it is necessary to take forward Amendment 84 at this time, we will have conversations with interested parties and others to understand whether adult social workers feel empowered within their existing duties and powers, and whether there is anything further that we can do to support them in carrying out their important roles to support known or suspected victims of domestic abuse.
I hope that setting that out from the Dispatch Box this evening, as well as in the helpful meeting that the noble Baroness had with my noble friend, will be enough to reassure the noble Baroness that existing practices and processes are in place to identify and tackle domestic abuse, including instances of elder abuse, and that the Government are committed to improving them. Therefore, I hope that she will be willing to withdraw her amendment.
My Lords, I thank the Minister for his response. I believe that the Government have taken onboard many of the points that I and others have raised in today’s debate. I welcome the opportunity to have input into statutory guidance that will be issued once the Bill receives Royal Assent. It is particularly important that Hourglass, as the leading charity in this area, can also have input into the guidance to local authorities on identifying and reporting suspected abuse and how they can best support older victims of this often horrific crime.
On the issue of power of entry, I remain of the view that the legislation in Scotland and Wales allowing social workers to enter a property to investigate suspected abuse where access has been blocked is the right approach. We might need to look at this again at a later date.
Further, I believe that the current “life and limb” threshold for the police to enter a property is too high; it makes it harder to investigate suspected abuse. But I do agree with the Minister that having joined-up work across agencies when responding to domestic abuse is essential. There needs to be a joined-up approach in responding to incidents where attempts to investigate abuse are blocked or frustrated. If the joined-up working approach proposed by the Government can address this issue satisfactorily, that would be a positive outcome. If social workers’ entry to people’s homes in cases of suspected abuse continues to be frustrated and the law proves inadequate to address that, I am sure that, at some future date, the issue of powers of entry will once again be debated in your Lordships’ House and appropriate measures taken to deal with it.
Regarding today’s debate, I thought the noble Lord, Lord Rooker, was absolutely right not to press a Division. More work needs to be done to look in detail at certain issues. We need a powerful measure to deal with perpetrators. Knowing that a social worker was coming might change behaviour. It will not be the last time we hear about this, because we may have to bring it back, so I thank the noble Lord for his contribution.
The reluctance of the noble Baroness, Lady McIntosh, to accept that this is a form of abuse worries me somewhat. It is essential that local authorities step in, but I know she agrees with a power of entry similar to that in Scotland and Wales.
The noble Lord, Lord Hunt, brought this issue to national attention many years ago. I have done the same and we have joined forces quite often to argue for the same points. The argument to go further for older women who have higher dependence on the perpetrator is very important. Family members are the prime perpetrators, and we know that the practice is far too patchy.
The noble Baroness, Lady Hodgson, highlighted that how we treat vulnerable people reflects something in our society which we must look at in more detail again. The noble Baroness, Lady Burt, has tabled very important amendments that support elderly people and demonstrated the gap between the police and social workers. We need also to look at that again and at what goes on in Scotland and Wales, because I am sure we can learn from what they are doing.
The noble Lord, Lord Rosser, highlighted the fact that older people are particularly vulnerable to abuse, and the importance of training anyone coming in touch with them, whether they are trained social workers, family members or whoever is doing the caring role.
I thank the Minister, the noble Lord, Lord Parkinson, for taking on this rather difficult issue and for highlighting many of the points that I raised previously with him and today. So with my thanks I say that today I will not be pressing either of my amendments to a Division and therefore I beg leave to withdraw Amendment 83.
Amendment 83 withdrawn.
Amendment 84 not moved.
Amendments 85 and 86 had been withdrawn from the Marshalled List.
We now come to Amendment 87. Does the noble Baroness, Lady Hamwee, wish to move the amendment?
87: After Clause 72, insert the following new Clause—
“Effective protection and support for all victims of domestic abuse
(1) The Secretary of State must take steps to ensure that all victims of domestic abuse, irrespective of their status, receive—(a) equally effective protection against domestic abuse, and(b) equally effective support.(2) In this section—“status” includes a status for the purpose of Article 4(3) of the Council of Europe Convention on preventing and combating violence against women and domestic violence and any combined forms of such status;“victims of domestic abuse” includes persons who are reasonably believed to be at risk of domestic abuse.”Member’s explanatory statement
This new Clause ensures all victims of domestic abuse are protected, regardless of their status, in line with Article 4(3) of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention).
Right. The Question is that Amendment 87 be agreed to. As many as are of that opinion will say “Content”, to the contrary “Not-Content”.
I have collected the voices, but the Division will have to be deferred, so voting will take place at a later stage.
Division on Amendment 87 deferred.
I now call Amendment 87A in the name of the noble Baroness, Lady Benjamin.
87A: After Clause 72, insert the following new Clause—
“Impact of online pornography on domestic abuse
(1) Within three months of the day on which this Act is passed, the Secretary of State must commission a person appointed by the Secretary of State to investigate the impact of access to online pornography by children on domestic abuse.(2) Within three months of their appointment, the appointed person must publish a report on the investigation which may include recommendations for the Secretary of State.(3) As part of the investigation, the appointed person must consider the extent to which the implementation of Part 3 of the Digital Economy Act 2017 (online pornography) would prevent domestic abuse, and may make recommendations to the Secretary of State accordingly.(4) Within three months of receiving the report, the Secretary of State must publish a response to the recommendations of the appointed person.(5) If the appointed person recommends that Part 3 of the Digital Economy Act 2017 should be commenced, the Secretary of State must appoint a day for the coming into force of that Part under section 118(6) of the Act within the timeframe recommended by the appointed person.”Member’s explanatory statement
This amendment would require an investigation into any link between online pornography and domestic abuse with a view to implementing recommendations to bring into effect the age verification regime in the Digital Economy Act 2017 as a means of preventing domestic abuse.
My Lords, I beg to move Amendment 87A in my name and that of the noble Lord, Lord McColl. I thank the Minister for the meeting that she kindly arranged for the noble Lord, the noble Baroness, Lady Healy, and I to discuss my amendment.
This amendment is an interim measure directed at the provision for the protection of women and children in relation to online pornography before the introduction of the online harms Bill. I am overwhelmed by the support I have received for the amendment from many charities and organisations, especially over the weekend. It is certainly engaging with a very real point of public concern that has been thrown into sharper focus by recent events. Sarah Everard’s legacy must be that she died in order for change to happen. Women’s actions across the country have shown that they want change.
Before we remind ourselves what Part 3 of the Digital Economy Act would be doing today had it been implemented, it is important to be clear in the first instance about the relationship between the consumption of pornography and violence against women. Noble Lords will remember that the noble Lords, Lord Alton and Lord McColl, and I drew attention in Committee to the Government Equalities Office’s research, which was published on 15 January and demonstrated the clear association between pornography consumption and male aggression.
The Government’s handling of this research causes me huge concern because, although it is clear from the front cover that it was ready for publication in February 2020, it was not published until a year later. In July, when asked about that during the consideration of this Bill in another place, the Minister implied that the research was ongoing when, in reality, it had been completed for months. Further, even though noble Lords asked about the research at Second Reading, they were not informed of its publication in the Government’s letter to Peers, dated 26 January.
My concern increased greatly when I received a letter from the Government last week. It stated:
“The reports make it clear that there is not one single factor that leads someone to engage in harmful sexual behaviour, rather it is a combination of factors which interact with one another to differing effects on each individual. The literature review highlights that a direct causal link cannot be established between pornography and harmful sexual behaviour as this would require impractical and unethical study conditions (forced exposure to pornography).”
I find this response quite extraordinary. First, no one has ever sought to argue that pornography is the only issue. It is obviously one factor among others, but the fact that it is not the only factor does not justify questioning attempts to address it. Secondly, as the letter itself concedes, proving causation is obviously impossible. Rather than deflecting the significance of the research’s findings by talking about its failure to do something it could never do, surely the Government’s responsibility is to look squarely at what the research does show—namely, that there is a clear association between pornography consumption and sexual aggression and violence. Surely this merits immediate action.
I am delighted that We Can’t Consent To This, the campaign group that has become such an inspirational and important voice for women on this issue, wrote to noble Lords calling on this House to vote for my Amendment 87A. In its briefing, it states:
“Our findings suggest a strong association between extreme pornography consumption and the incidence of sexual violence. Of the 3.6 million UK women who have been sexually assaulted, most of the men who do it say they were influenced to do so by porn.”
To this end, they call on noble Lords to support my amendment.
Another significant organisation campaigning for this amendment is CEASE, the Centre to End All Sexual Exploitation. It highlights the urgent need for greater awareness of widespread violent content on porn sites and its real-world consequences. It too calls on Peers to vote for Amendment 87A, stating that in the light of the horrendous and tragic case of Sarah Everard and the outpouring of experiences of harassment, abuse and violence shared by women since Sarah’s case because public, we have a duty to address factors associated with violence against women. Porn consumption is undoubtedly one of these.
I am also delighted that Women’s Aid is supporting my amendment as it upholds its desire to protect women against violence. Over the weekend, I read with huge concern an article in the Evening Standard written by a woman who was subject to a sexual attack in London on the same night of Sarah Everard’s disappearance. The author is just one of many women who have stepped forward to share their stories in the last few days.
Leading expert Mary Sharpe from The Reward Foundation wrote over the weekend that it is becoming clear that, since the arrival of broadband in 2008 and the easy access to pornography via smartphones, we have witnessed radical changes in behaviour in our society. If we are to put a halt to the increase in violence, we must understand what impact technology is having on brains and behaviour. In 2018, based on the weight of evidence, the World Health Organization introduced a new category—compulsive sexual behaviour disorder—to its international classification of disease.
Research shows that around 80% of people seeking treatment for this disorder have reported an inability to control their use of pornography, despite negative consequences. Some sufferers are as young as 16. Researchers at Cambridge University found changes to brain structure and functions in compulsive porn users. They found that porn users’ brains responded to images of pornography in the same way as cocaine addicts respond to cocaine, and that addiction-related brain changes impair the ability of a user to put the brakes on an impulsive behaviour. For some compulsive porn users, that means the inability to control violent outbursts.
Having looked at the association between pornography consumption and male aggression, we should now remember where we would be today had the Government implemented Part 3 of the Digital Economy Act as planned in 2019. There would have been two crucial consequences. First, we would have an operational regulator charged with taking robust action against any website, regardless of where in the world it is located, that is accessible in the UK and shows what is under UK law the most violent category of online pornography—extreme pornography which is realistic, involves severe injury and an act that threatens a person’s life. This has nothing to do with age verification and would help to protect women.
Secondly, under-18s would be protected from accessing porn websites through age verification. This constitutes a critical investment in the future to limit incidences of domestic violence going forward. It means that as children move into adulthood, they will be less likely than they are today to have been exposed to violent pornography which fosters the expectation that violence is a natural form of sexual relationships.
If the Government had followed through on the will of this House and implemented Part 3, today we would enjoy two major protections from the impact of the association between pornography consumption and male aggression and sexual violence. It is utterly tragic that, having demonstrated such wisdom and vision on these issues between 2015 and 2018, the Government misjudged things so spectacularly in 2019. It makes them look so out of touch, especially at this moment when we see such an outpouring of concern about women’s safety and the implication of pornography use in those safety concerns.
I have always accepted that the Government eventually intend to address pornographic websites, alongside other online harms, through the online harms Bill. I have said it before, and I will say it again: I welcome the online harms Bill and the ambition to address other online harms, including pornography on social media. However, there is a huge problem with the idea that we can now forget about Part 3 and wait for the online harms Bill because, without doubt, there will be consequences for women and children. Today we have the opportunity to protect women and children in relation to pornographic websites in the interim period between now and when the online harms Bill is ready. This is why I am moving my Amendment 87A.
I have to say that I have found the Government’s response to me on this extraordinary. Their letter stated:
“As an indication of the potential timescales involved, the implementation period for Part 3 of the 2017 Act took over two years, following Royal Assent in April 2017 to the proposed commencement date of 15 July 2019. Such a two-year lead in time would run into the Online Safety legislative process”.
This suggests that one would have to go back to the drawing board with completely new legislation and guidance. Of course, we could—but if we are concerned about keeping women safe and this interim measure previously satisfied the officials at DCMS, I think we can be sure that, whatever its faults, it is better than nothing, which is what we have at the moment.
This is surely a Sir Humphrey moment if ever there was one, which noble Lords can see through. On one hand, we are asked to believe that implementing existing legislation would take far longer than we need it to; on the other hand we are told that the development of the online harms Bill will happen at a record-breaking speed, as we rush through pre-legislative scrutiny and as the Bill then gallops through both Houses and on to Royal Assent.
The difficulty we all have in believing this is that when the Government said they would not implement Part 3 in October 2019, they promised that the Bill would be delivered last year. It is already March 2021, and we still have no sight of this elusive legislation. Even if it was published and had its First Reading tomorrow, we would still be presented with a longer wait for protection in relation to pornographic websites than if the Government were to announce instead that they would begin to implement Part 3 tomorrow.
Furthermore, the Government have also made it clear that they will address pornography through secondary legislation, which would have to be developed after the primary legislation and then be implemented as well. We were not born yesterday. The notion that it would take a similar amount of time to introduce, pass and implement one piece of legislation as it takes just to implement another which has already been passed is self-evidently nonsensical.
If the Government want to point back to the Digital Economy Act precedent, then so will I. Between the publication of the Digital Economy Bill and the passing of attendant secondary legislation, three and half years elapsed. Let us be clear: the fact that we might get to debate the online safety Bill this autumn—if it is published, rushed through pre-legislative scrutiny and comes to the Lords first—will not change the fact that any protection that it and its secondary legislation afford will not be felt for years. If the Government recognise the urgent need for action, they could redesignate the BBFC as regulator and use the guidance and secondary legislation that Parliament has already approved, and we could feel the benefits of Part 3 in three months—by this summer.
I know that the BBFC is not the Government’s preferred long-term regulator. This is a role for Ofcom, but it would be a huge political misjudgment to deny women and children the protection of Part 3 in the interim just because they do not think the BBFC would be quite as good as Ofcom. I believe that it is much more important that women and children should receive protection than condemning them to having none. The BBFC could carry out this role over the next three years and then hand it over to Ofcom when the online harms legislation is ready.
I know that Part 3 does not address pornography on social media. I argued many times in our debates on the Digital Economy Bill that it should be included, but it would be absurd to attempt to justify on that basis not introducing the protections that can now be implemented in relation to pornographic websites. We must introduce protections in relation to pornographic websites now and add in social media as soon as the new legislation is ready. If we wait for the online harms Bill, we will condemn women and children to a less safe second half of 2021, all of 2022, 2023 and perhaps even 2024. I hope that the Government care as much about the damage that pornographic websites will do over the next three years as I do. The same can be said for many members of the public and campaign organisations. There is only one thing worse than not protecting children and women in 2021, 2022 and 2023, and that is having the capacity to implement Part 3 of the Digital Economy Act and simply not bothering to do so.
Without resorting too deeply to technical jargon, the assertion in the Minister’s letter regarding the advent of DNS over HTTPS is not credible, and the noble Lord, Lord Browne of Belmont, will address this point in more detail in his speech. The notion that age verification is a threat to personal privacy, which has been put forward by the noble Lord, Lord Paddick, and others is outdated, incorrect and ill-informed because technically no personal information will be shared on porn sites at all, as the Age Verification Providers Association has demonstrated.
I have connections with PSHE associations and I believe in the best possible PSHE provision for children. Those associations also support this amendment and age verification. While we owe children great PSHE, we also owe it to them to make it less likely that they will be exposed to violent online pornography between now and when the online harms regime is ready.
I will conclude with the briefing on my amendment from the organisation, We Can’t Consent To This. It argues for the implementation of Part 3 so that we have a regulator to take action against websites that show extreme pornography. That would help foster an environment that is less hostile to women and would make domestic abuse less likely. This is not the time to mess about. We have to stop creating a conveyor belt of sexual predators who commit violence against women and girls. The eyes of the country are on us to see whether we understand what is going on. It has been great to hear that the Prime Minister, Boris Johnson, wants to see action to protect women from sexual harassment and violence. My amendment would give him and the Government an opportunity to do just that.
If the Government are able to make a commitment today to implement Part 3 as an interim measure to protect women and children in 2022 and 2023, I will withdraw this amendment. If they cannot do that, I will divide the House. I beg to move.
My Lords, I shall take that advice seriously, and fortunately I can be brief because this whole area has been clearly and cogently explained by the noble Baroness who has proposed this amendment. I am pleased to speak in support of it and I shall do so in a summary way to cover the main points. I remind noble Lords that it is the first responsibility of the Government to do all they can to keep our people safe. In that connection, there is no group more important than our children and young people.
The Government have recognised that harm can be done to our people online and are preparing legislation to deal with that—not an easy task. I have seen some of the efforts put forward so far, but on the statute book since 2017 there is legislation to protect children. It also creates a regulator with power to take robust action against any website showing illegal extreme pornography, which will help create a less hostile environment for women.
It is notable that our present Prime Minister has responsibility for that legislation, because he was a member of the Cabinet when the 2017 legislation went on to the statute book. Accordingly, he has the honour of promoting this along with his colleagues in government at that time. As we have just heard, he has asked that something be done to protect women who walk in the street in the evening—often a risky and adversarial business.
The legislation also creates, as has been said, a regulator with power to take robust action; this is important, because it can be brought into force very quickly if we use the BBFC as the regulator for the time being. Why refuse to do that? Why expose women and children to the danger that legislation prevents and the danger the population as a whole faces as a result of the absence of the regulator? We are preparing comprehensive legislation to deal with this subject and want Ofcom to be the regulator. That is all well and good, but however comprehensive, it cannot make good the damage presently occurring that the existing legislation would have prevented if in force.
The very sad events of the last days have shown the aggressive behaviour faced by huge numbers of women who have explained in detail the kind of conduct with which they have been confronted while walking along our streets. I have not heard, so far, any suggestion of how that can be dealt with. The committee dealing with this matter said that the Government must find a solution, and I think that so far the Government are still waiting for a solution. I suggest that the solution is right here if we put into force the legislation passed by both Houses of Parliament with the full consent of the Government in 2017.
While the government research may not prove a causation, it shows a clear relationship between pornography consumption and a higher incidence of male aggression and violence against women. That seems absolutely clear, stated by the Government. Nobody is suggesting that that is the only possible explanation of some forms of sexually aggressive and violent conduct. However, it shows that there is a relationship, and that is sufficient to show that removing it could have a beneficial effect as a contribution to the remedy of this widespread difficulty that has been manifested in the last day or two across the whole of our country. As far as I have seen, nobody has suggested a way of dealing with that as yet, whereas this is a remedy to hand. It is not, of course, a complete remedy, but it may have some considerable effect in the meantime, while we await the Bill that is in preparation, which is more comprehensive in effect.
It is difficult to solve all the problems that that Bill raises. I cannot be sure when it will come forward and we have not had a guaranteed date yet, from anybody. In the meantime, we have a weapon that has some effect as a remedy, which protects children to a considerable extent. It is right to hand, so why not implement it now? I have sent a note of what I am saying to the Minister, to give good warning of what I had in mind. This is the situation as I see it: it is an extraordinary challenge to our Government that they have to hand a remedy that would be of some effect, at least, in this serious problem that has so clearly manifested as a result of the sad death in the last few days.
My Lords, I admire the continued work of the noble Baroness, Lady Benjamin, in putting forward this amendment. I have been inundated with requests from members of the public that I speak on this amendment, and express their strong support for it. One grandparent got in touch to tell me about the experience of their young grandchild and how they had been exposed to listening to another child talk about incredibly graphic violent pornography. Out of all the letters, this struck a chord with me.
I also thank We Can’t Consent to This, the Click Off campaign and the Reward Foundation for spending time with me in the last year to talk me through some of the many issues related to pornography. Much of it was harrowing, especially around redefining the boundaries of consensual relationships.
Now is the time for the Government to take a positive step forward after not implementing Part 3 of the Digital Economy Act 2019. It is clear from the extensive research that there is a link between domestic abuse, general violence against women and pornography. The British Board of Film Classification has said that half of children aged 11 to 13, and 66% of 14 to 15 year-olds, have come across pornography. The noble Baroness, Lady Benjamin, raised social media. It is shocking how easy it is to find pornography after just one or two clicks away from someone an individual may innocently follow.
The evidence of how compulsive use of internet pornography can affect the brain and decision-making faculties of a compulsive user over time is something that we have to take seriously, but relatively little has appeared in the media about it and there are three reasons. The first is that substantial pornography use is relatively new and coincided with increased internet speeds around 2008. The second is that it can be hard to isolate one factor as a root cause. The third, and of most concern, is that the multibillion-pound pornography industry has financial reasons for keeping the public and politicians in the dark about the links between its product and health risks. The playbook that we now know was used by, among others, the tobacco industry to counter the message of a negative link between smoking and ill health was highly effective for a long time, and this is similar to the pushback that we are seeing now from a multibillion-pound industry that does not want to change.
Pornography is such a politically sensitive subject and a largely private activity that it stops many people discussing it publicly. The Government need to address this issue and I strongly support the amendment of the noble Baroness, Lady Benjamin.
My Lords, I am pleased to speak in support of Amendment 87A. I very much agree with what the noble Baroness, Lady Benjamin, said and do not propose to repeat it. I devote my speech to responding to the assertions made by the Minister in her letter of 8 March, in response to the debate in Committee. This seeks to justify not implementing Part 3 on the basis that
“recent technological changes could render Part 3 of the 2017 Act ineffective in protecting children if it were introduced as an interim measure. One of the Act’s enforcement powers was the power to require Internet Service Providers to block access to material on non-compliant services. Changes to the architecture of the internet may make this power obsolete.”
This has the feel of officials looking round for excuses not to implement Part 3 on at least three levels. First, one could be forgiven for concluding, on the basis of the letter, that IP blocking was the only enforcement mechanism for Part 3. It is actually one of three enforcement mechanisms so, even if it did not work, this would not make Part 3 ineffective. Secondly, the letter says only that IP blocking may not work at some point in the future—not that it does not work now or that there definitely will be a problem in future.
The reason the Government are concerned that blocking access to non-compliant websites may become problematic in future is because of a new way of navigating the internet, known as DNS over HTTPS, or DoH for short. It is not widely used at present but is likely to become more common in time. DNS stands for domain naming system; it is simply the phone book for the internet, allowing for translating the name of a website such as parliament.uk into its numerical address—in our case, 184.108.40.206. Presently, internet service providers are able to block access to particular websites simply by intercepting the query from a user wishing to access this telephone book. DoH encrypts those queries, making the current interception technology deployed by ISPs somewhat less capable of blocking access to non-compliant websites this way.
However, at some point in the process something has to connect the name of the site to its number, making blocking possible. In the case of DoH, this is an entity known as a DNS resolver, which is just another phone book but accessed securely. So the simplest solution, and the one the Government intend to use to block sites under the online safety Bill, is to instead turn to these resolver services and ask them to apply blocks, rather than the ISPs. The fact that this is how they intend to deal with the DoH enforcement challenge under the online harms Bill means that they should be able to deal with it that way under Part 3. But to fully appreciate why it is not remotely credible to argue that DoH constitutes a reason for not proceeding with Part 3, one must understand two further points.
First, even under DoH, ISPs still have the ability to determine which websites the user is visiting because not all aspects of the traffic are encrypted. As the well-respected online tech publication ZDNet states in an article on site blocking:
“ISPs know everything about everyone’s traffic anyway. By design, they can see to what IP address the user is connecting when accessing a website. This IP address can’t be hidden. Knowing the final IP destination reveals to what website a user is connecting, even if everything about his traffic is encrypted.”
Research has shown that a third-party can identify with 95% accuracy to which websites users were connecting, just by looking at the IP addresses. Secondly, if DoH constituted a major long-term challenge, which I do not believe it does, for the reasons I have set out, it is not relevant to our discussion today because we are talking about using Part 3 only as an interim measure between now and when the online harms Bill is ready.
Another government concern with the Digital Economy Act is that it is specific in naming internet service providers in the section relating to site blocking, so Ministers were told they will lack the power to ask a resolver service to block pornography websites which fail to implement age verification. The Minister argued this in her letter to the noble Baroness, Lady Benjamin, when writing that a reference to internet service providers or similar is usually applied in the traditional sense, requiring the major internet service providers to block access to certain websites. But looking in detail at this legislation, the definition of an ISP is not left to tradition but based explicitly on the European Union definition of an internet access service, which means
“a publicly available electronic communications service that provides access to the internet, and thereby connectivity to virtually all end points of the internet, irrespective of the network technology and terminal equipment used.”
Indeed, the Minister went on to accept as much, conceding that the department’s guidance to the regulator, coupled with the broader terminology of an internet access service used in EU legislation, may offer sufficient flexibility to extend the duty on internet service providers to cover other means of accessing the internet.
There is no credible technological reason why the Government could not implement Part 3 now as an interim measure. We would then have a regulator in place more quickly to take robust action against pornographic websites showing illegal extreme pornography that normalises rough sex practices and sexual aggression generally than if we just wait for the online harms Bill. In the context of current levels of concern about attacks on women, the failure to deliver this protection as quickly as possible would be to fundamentally misread the moment and would let women down. I hope that when the Minister responds she will announce that the Government now recognise that they must implement Part 3 as quickly as possible as an interim measure.
My Lords, I am very grateful to the Minister for meeting the noble Baroness, Lady Benjamin, and me to discuss our amendment. However, while we were pleased to learn more about the long-awaited online harms Bill, we remained just as baffled after the meeting as we had been before as to why Part 3 of the Digital Economy Act should not be implemented now, as has been mentioned by other speakers. I will cut short what I was going to say because it has been said before.
In Committee I spoke about the evidence from the Government’s own belatedly released reviews that clearly demonstrates a link between pornography use and the beliefs and attitudes of perpetrators of sexual abuse. In truth, there is extensive additional research that should be taken account of. That includes advances in neuroscience that have allowed us to understand that the brain is plastic and changes in response to the environment. Indeed, it is worth noting that the Government’s research looked only at legal pornography use. One would expect the findings of research on illegal pornography use to be even more concerning.
Our environment has changed dramatically since the advent of broadband, which has allowed easy access to limitless amounts of free internet pornography, which is easily accessible to children and young people during a time when their brain is fast developing. When we consider this in the light of the evidence regarding the impact of pornography on adult brains, it is sobering. For instance, researchers at the University of Cambridge have found changes to brain structure and function in compulsive pornography users. Their brains respond to images of pornography in the same way that brains of cocaine addicts respond to cocaine. Moreover, there is evidence—of huge significance to the subject of domestic abuse—that the part of the brain that inhibits violent and impulsive outbursts is impaired when a person has an addiction. However, there is some good news, because that part of the brain can function again after a period of time after they quit the addiction.
It is extremely concerning that a study of adolescents shows that
“intentional exposure to violent x-rated material over time predicted an almost 6-fold increase in the odds of self-reported sexually aggressive behaviour”.
Other research suggests that, for adolescent perpetrators of sexual violence,
“Links between perpetration and violent sexual media are apparent”.
Moreover, we should not forget that the British Board of Film Classification’s 2019 report on young people’s use of pornography found:
“Beyond creating unrealistic expectations of sex, some young people felt pornography had actually affected their expectations of, and behaviour during, sex, particularly in the copying of “rough” or “forceful” sex seen in pornography.”
In this context, the No. 1 priority must be to implement Part 3, as has been mentioned by several speakers. I know Part 3 does not deal with all online harms or address pornography on social media, but when the online harms Bill is eventually law, it will rise to those challenges. Part 3 addresses pornography websites; that is progress that the women and children of our country could benefit from more rapidly than they could from an unpublished online harms Bill. The Government have sought to argue that, notwithstanding the fact that Part 3 is already on the statute book, waiting for the online harms Bill makes sense. However—I say this very gently—that argument is beginning to look rather ridiculous and risks in the current environment making them look rather out of touch.
In the context of the current outpouring of concern about women’s safety, it would be one thing to say, “We will address the challenge through unpublished legislation”, if there was no other legislation to help do the job. Apart from a few new regulations, as has been mentioned, we have already passed primary legislation, which is “oven ready”, to use a term favoured by the Prime Minister, to tackle websites showing extreme pornography. In the interim, the Government should use the oven-ready primary legislation rather than base their entire strategy on legislation that has not even been published, let alone gone through Parliament, and which is consequently far from oven ready. Given the urgency of this, they should redesignate the BBFC as the interim regulator, which would mean these protections could begin within months.
Consideration on Report adjourned.
House adjourned at 11.53 pm.