House of Lords
Wednesday 3 February 2021
The House met in a hybrid proceeding.
Prayers—read by the Lord Bishop of Salisbury.
Captain Sir Tom Moore
My Lords, before we begin Oral Questions, I would like to lead the House in a moment of silence in memory of Captain Sir Tom Moore, who died yesterday. His quiet resolve and selfless spirit of public service will never be forgotten. As we pause to remember him and his enduring legacy, we also remember all those who have died since the start of the pandemic. I ask Members to rise for a minute’s silence.
The House observed a minute’s silence.
Arrangement of Business
The Hybrid Sitting of the House will now begin. Some Members are here in the Chamber, others are participating remotely, but all Members will be treated equally. Oral Questions will now commence. Please can those asking supplementary questions keep them short and confined to two points? I ask that Ministers’ replies and answers are also brief.
Music Sector: Working in Europe
My Lords, the Government recognise the importance of international touring for the whole range of UK cultural and creative practitioners. The Secretary of State has committed to creating a DCMS-led working group to work closely with the sector’s representative organisations and other key government departments to assist businesses and individuals as far as possible to work confidently in the EU. That group met for the first time on 20 January.
My Lords, does the Minister find it acceptable that artists from countries across the globe, such as Colombia and the United Arab Emirates, have through the standard visa waiver agreement potentially better access to the EU than ourselves, the EU’s next-door neighbour? What steps are the Government taking to proactively engage with the EU to find a solution to touring arrangements in Europe? Having to deal individually with 27 EU countries and even, as in Belgium and Germany, regions within countries does not cut it. It is the last thing that the music sector wants.
The noble Earl is right to highlight some of the challenges that now face our brilliant musicians and creative artists. As he knows, in the UK-EU trade negotiations the EU tabled a proposal for a permanent waiver for short stays covering UK and EU citizens that drew on agreements such as those with Colombia and the UAE. However, this offer would not have met the needs of touring musicians in the round, nor was it compatible with our manifesto commitment to take back control of our borders. Therefore, our starting point is to listen to and work with those in the sector to make sure that they have the information that they need, in a clear and accessible way, so that they can continue their valuable work once Covid restrictions are lifted.
My Lords, the countries cited by my friend the noble Earl have unilateral agreements with the EU, which makes these relationships possible. Will the Government now seek their own new bilateral agreements with the EU and EU member states, separate from the trade agreement, so that they can exempt touring performers and creative people from the visa and work permit regulations?
As the noble Baroness has heard me say at the Dispatch Box on several occasions, we are exploring individual options to try to ease the process for our musicians and creative artists, but there are no current plans such as the one that she suggests.
My Lords, I welcome the dialogue between the Minister’s department and the industry. Not just musicians but professionals from other creative industries rely on touring and now face this extra bureaucracy when moving between the EU and the UK. Can the Minister say whether moving equipment—whether musical instruments, scenery, merchandise or artefacts—by truck or cargo will require carnets between Great Britain and Northern Ireland? The Northern Ireland protocol makes no mention of temporary import/export.
Given the sensitivities around arrangements with Northern Ireland at the moment, if I may, I will double-check and confirm to the noble Baroness. My understanding is that artists and organisations based in Northern Ireland will not be required to obtain ATA carnets or musical instrument certificates when touring in the EU, because the protocol means that Northern Ireland is part of that regulatory environment.
My Lords, half our musicians earn half their income in the European Union. Echoing the noble Earl, Lord Clancarty, I add that Tonga and St Lucia also have visa waiver agreements with the European Union. Is the Government’s position that Tonga and St Lucia do not have control over their borders and therefore should now turn their backs on their visa waiver schemes, or will the Government see sense and pursue a bilateral agreement for a visa waiver scheme for our musicians?
This Government are not responsible for any of the visa arrangements for the countries to which my noble friend referred. We recognise that additional requirements will need to be met for our cultural professionals to tour and work in the EU. Some member states allow touring without a permit and others require a pre-approved visa and/or work permit. We are undertaking an extensive programme of engagement with our sectors to find the best way through.
My Lords, the deal presents challenges across all art forms. The 10-person dance-circus company Motionhouse exemplifies this. It is currently negotiating a 56-show tour at 20 venues in 11 EU countries. The additional costs of carnets, permits and visas rise to £37,000, on top of new administrative costs and in-country taxes. Is the Minister aware that the company will also need to monitor any holidays that its dancers take in the Schengen area? If it pushes any one of them over the 90 days allowed, it could be forced to cancel or refuse bookings. What advice can she offer this company and many like it, so that it can continue to promote UK creativity to the world, as it has done for 33 years?
I congratulate the company on what it has achieved over the last 33 years. We in this House are all proud of the work of our creative colleagues. I advise them to work through their industry bodies to make sure that the department hears of the issues that they face and can feed them into the solutions that we are trying to find.
My Lords, listening to the noble Baroness’s answers today, I have the uncomfortable feeling that we have gone backwards from where we were a couple of weeks ago, when she last answered a Question on this subject in the House. Is she saying that the Government now have no intention of further engagement with the EU or EU member states to try to get a better outcome for the many performers and performing arts organisations that are faced with these new restrictions? If so, is that not a counsel of despair?
I hope that it is not a counsel of despair. As I have said before in the House, there is scope to return to this issue in the future, should the EU change its mind. We were clear on what we tried to achieve. That ambitious request was based on advice that we received from musicians and the creative industries more broadly. We cannot go back from what they have told us that they need. The Government are looking at whether we can work with our partners in EU member states to find ways to make life easier for them in the meantime.
A year ago, the Creative Industries Minister told the Commons that music tours are
“the lifeblood of the industry”.
“It is essential that free movement is protected for artists post 2020.”—[Official Report, Commons, 21/1/20; cols. 56-57WH.]
Those are fine words, but what is the reality? The creative arts were completely ignored in the EU trade deal. One of our stellar export industries has been butchered by this botched negotiation. Why have the Government not gone back to Brussels to fix this mess?
I cannot accept the noble Lord’s assertion that these industries were ignored. Our negotiators worked extremely hard to try to put forward a proposal that would have benefited both the EU and the UK creative sectors and we are disappointed that it was not accepted.
This issue is much wider than just musicians, although that is clearly extraordinarily important. I am amazed we were only having discussions with the industry on 20 January, because this issue has been around for a long time. On 20 December, the noble Lord, Lord True, told me that the more ambitious agreement on movement was rejected by the EU. However, in March last year the Home Office told me:
“These arrangements are not dependent on whether or not the Government concludes a Comprehensive Free Trade Agreement with the EU.”
On 5 May, I was told that it depended on both. My question, which I raised in the debate on 8 January was: does this have to be negotiated with the EU or the individual states? If it is the latter, how many of the 27 have we approached and how many are we engaged with in negotiations?
To clarify for my noble friend, our work with the industry did not start on 20 January, and I am sorry if I was not clear on that point. The Secretary of State established a new round-table group which has met for the first time, but all our work in this area has been informed by feedback from the sector. In relation to my noble friend’s wider points, I will respond in writing if I may.
Hospitality Sector Minister
Responsibility for hospitality is currently split between BEIS and DCMS. Both departments are working closely together to ensure that the sector’s interests are strongly represented in government. The power to create a new ministerial post rests with the Prime Minister; however, whatever is decided, we will work to ensure that the sector is in the best possible place to bounce back from Covid-19 so that it plays a leading role in the UK’s economic and social recovery.
My noble friend is well aware of the crucial importance of the hospitality sector to our economy, to employment and to our general quality of life. While I completely acknowledge the unprecedented levels of support provided by this Government, the sector still faces massive uncertainty and challenges when we finally emerge from this terrible pandemic. Rather than responsibility being split between different departments, is there not now an overwhelming case for it to be brought under one dedicated senior Minister whose sole focus is to work with the entire sector on recovery? The sector is asking for this through its online petition, which has now attracted 209,000 signatures.
I well understand the point my noble friend is making but, as I have said, BEIS and DCMS work closely together. The split in responsibilities reflects the fact that most hospitality businesses are SMEs, and BEIS is very experienced in supporting them. However, hospitality accommodation is more closely aligned with the responsibility DCMS has for tourism. We are co-ordinating our activities closely.
My Lords, throughout the pandemic the Government have recognised the importance of the hospitality sector and provided funding accordingly. I would be interested to know why they have so far resisted the idea of a dedicated Minister, as we have for sports and the arts. Will the Government at least consider an interim position, as suggested in the other place, of an industry recovery Minister, which could then be made permanent if it were found to be working well?
My Lords, the hospitality industry has suffered more than just about any other sector over the last ten and a half months, being closed for more than half that period. Does the Minister agree that the Government should provide a road map, as the CBI—of which I am president—has recommended? This would guide businesses on the opening up of the economy, including whether a tier system is going to return and the use of rapid mass tests. Does he also agree that business support needs to be extended for the hospitality industry in particular, including extending the furlough scheme until the end of June and the business rates holiday, so that there is no March cliff edge?
An unprecedented package of support has been given to the industry; unfortunately it is impossible for us to say at this stage when hospitality and entertainment businesses will be able to open safely and therefore it is impossible to have a road map. We are hoping to set out more details as we go through this month and the data becomes clearer.
My Lords, as I am sure most noble Lords know, the hospitality industry is worth £150 billion a year to the UK economy. This is not counting the wider supply chain. It provides entry-level jobs as well as livelihoods for older workers. With the prospect of foreign holidays receding, this sector could play a major role in the start of a recovery. Therefore, will the Government consider establishing a forum with employers and unions to help secure the future of the sector and a bargaining council composed of Unite the Union and industry representatives to find sector-wide solutions?
[Inaudible.]—in new solutions, but I very much suspect that only a small minority of workers in the industry is actually represented by Unite in particular. We have regular meetings with the sector, many of which are small businesses, and I totally agree with the noble Baroness’s point that they will have an important role to play in the recovery.
VAT and business rates have already been mentioned, which are two important issues to be clarified as soon as possible. There have also been several extensions to the Coronavirus Job Retention Scheme. Is it not time to state clearly that it will be extended until the end of the year, particularly for businesses that continue to be restricted by either social distancing rules or travel restrictions? Given the advice of the WHO, that a 1 metre distance is as effective as 2 metres, are there any plans to consider that as part of the opening-up strategy?
We are keeping matters closely under review and if there are any extensions, the Government will want to announce them as quickly as possible. We are dealing with a fast-moving situation, but we recognise that the past few months have been very challenging for businesses in a wide variety of sectors and hospitality businesses in particular. We have provided an unprecedented package of support for businesses during this time of crisis.
My Lords, I think the Minister might acknowledge it has been rather more than challenging, because UKHospitality found that sales in the sector fell by 54% in 2020 and now 650,000 businesses fear collapse over the next three months. Will the Government bring forward a comprehensive national plan for the hospitality sector as a matter of urgency, so that the recovery is not choked off? Are the Government actively considering an extension of the VAT cut to 5% for a further month? If a recovery plan is generated by the Government, can they please consult extensively across all sectors and ensure that nations and regions are considered?
We keep all of these recovery measures under constant review and if we need to extend them further, we will of course do so. With regard to the recovery plan, it is impossible to say at the moment when we will be able to reopen the sector, but we should be able to be clearer on this towards the middle of this month.
My Lords, hospitality matters for so many reasons. It provides jobs and opportunities for business and it offers social interaction, enjoyment and stimulation for our well-being. Does my noble friend the Minister agree with me and other noble Lords that we need a clear road map for the hospitality industry—a route showing how we can ensure that hundreds and thousands of businesses can survive through these challenging times and emerge through to the other side?
My noble friend is totally correct in terms of the importance of the hospitality sector. I can assure her that we will not keep restrictions for a day longer than is absolutely necessary, but we cannot have a road map at this stage because we do not have enough data as yet to know exactly how soon it would be safe to reopen. The picture should, I hope, be clearer by mid-February.
My Lords, I heartily endorse the call of the noble Lord, Lord Caine, for a hospitality Minister, who could co-ordinate the national response right across the United Kingdom. In the meantime, can I urge the Minister with responsibility to take on board the need to extend the VAT cut, which has applied from July through to 31 March? Most hospitality businesses have been closed for a large proportion of that time, and it would not make any sense that, as they reopen, that cut would not be available to help them through the very grave difficulties that they will face.
My Lords, I have had a look at the websites of the two departments that are supposedly responsible for the hospitality industry—BEIS and DCMS—and there is a total of 13 Ministers, including three in the House of Lords. Whereas the noble Baroness, Lady Barran, has responsibility for ceremonials and the noble Lord replying has responsibility for the Ordnance Survey, not one of the 13 is listed as having responsibility for hospitality. Is this not embarrassing for the Minister and his department, and what will he do about it?
There are two Ministers—Minister Huddleston in DCMS and Minister Scully in my department—who look after the interests of businesses and others in the sector, so the noble Lord need have no fears: the concerns of the hospitality sector are well heard in two government departments.
My Lords, I welcome the additional support made available by the Government for the hospitality sector in the form of the closed business lockdown payment and the additional restrictions grant, but both of these do not appear to support many of those working in the wedding hospitality sector. While I hear what my noble friend has said about planning, could he tell the House what engagement the Government have had with the wedding sector in particular? What plans, if any, do they have for allowing weddings beyond the current arrangements, which allow them only in the most exceptional circumstances?
My noble friend makes a very powerful point. My ministerial colleague, Minister Scully, is closely working with the sector to hear its concerns. He has had a number of meetings with the sector—if that is not right I will correct that for my noble friend—to listen to concerns, hear about plans for reopening and do whatever we can to work with it in this extremely difficult and challenging time.
National Risk Register
My Lords, a range of documents has been published that provide an overview of preparedness for major risks, including the national risk register, which provides information on those that have the potential to cause significant disruption. The Government do not currently have plans to publicly share further reports on this matter due to the confidential nature of the information.
My Lords, of course there are some preparations that it would not be right to reveal publicly, but that is what the Intelligence and Security Committee is for. Covid has already cost us more than half a trillion pounds, but at the start of the pandemic, of the emergency stockpile of 26 million NHS respirators, 21 million were past their use-by dates. Neither the lessons from Exercise Cygnus, nor the recommendations from the New and Emerging Respiratory Virus Threats Advisory Group, have been acted on. To govern is to choose, and the choice was to leave us underprepared. Is it not in the public interest for Parliament to know how ready we are for the other serious risks on the national risk register?
My Lords, I have said repeatedly at this Dispatch Box that lessons from Covid planning, and other planning, will be learned and are being learned, and will be communicated. I pay tribute to the work of the noble Lord on the Joint Committee on the National Security Strategy. He will know that the Government regularly respond to requests from that committee on risk assessment to inform its work, and they are currently responding to the recommendations in its report Biosecurity and National Security.
I congratulate the Government on their approach to maintaining the national risk register, but, following the recent severe flooding in Yorkshire and elsewhere, is my noble friend satisfied that there is adequate co-ordination between the national risk register and community risk registers in identifying and meeting such risks?
My noble friend touches on a very important point. In all candour, I think that one is never satisfied with anything; one always wishes to learn from what happens to do things better the next time. However, I assure him that, to support their planning for emergencies, local resilience forums are provided with full support to develop local resilience plans. They have direct contact with the Cabinet Office, should specific questions on risk assessment be raised—I assure the noble Lord that this ongoing dialogue is strong and will be strengthened.
Should the national risk register be about risks that are longer than two years and those over the next 10, 20 or 30 years? Also, the committee that was supposed to look into pandemics was closed down six months before the pandemic started: is that not a sign that perhaps we are a bit closed and not looking out in a real way to the great risks that face us now? Of course, the greatest risk is that of poverty.
My Lords, the noble Lord makes a strong point with which I agree, having chaired one of your Lordships’ Select Committees that looked into longer-term planning. His point is important. The NSRA certainly takes into account the impact of risks on the most vulnerable in society in its methodology.
My Lords, as I say, the Government are in contact with a range of people. We have just discussed the issues of flooding and vulnerable groups, and, as I said in answer to the first supplementary question, the Government are obviously in contact with the Joint Committee on the National Security Strategy. We cast our interests and our ears—if you can cast your ears—widely.
My Lords, Professor Dame Sally Davies, the UK envoy on anti-microbial resistance, is calling on academics, Governments and not-for-profit organisations to work together to tackle this global health risk, which is a threat to both lives and economies. What action have the Government taken and what are their plans, following the recent update of the noble Lord, Lord O’Neill, on his 2016 review on this issue?
My Lords, I do not have a detailed response to the O’Neill report, but I can make sure that the noble Baroness gets one. However, I assure her and the House that my right honourable friend the Prime Minister has personally made clear his commitment to this Government being in the lead internationally in the fight against all manner of disease threats.
My Lords, the national risk register tries to identify both malicious and non-malicious threats, including misinformation. No one would ever suggest that President Macron’s recent rubbishing of the vaccination science was malicious, but it most certainly counts as misinformation that, unfortunately, plays into the hands and maliciousness of the anti-vaxxers. As such, might my noble friend, as an ardent European himself, be tempted later today to send Monsieur Macron this country’s very best wishes, gently remind him that the glorious state of France has nothing to fear from British success and suggest to him that the greatest danger facing all of us in this chaotic world is ignorance, to which the President has, sadly, unwittingly contributed?
With his normal ingenuity, my noble friend encourages me to make about five diplomatic gaffes in five seconds. I am certainly not going to fall into that trap. Those who advise best on disease and on the safety of vaccines are the professionals. The British Government have total confidence in the advice that they have received on vaccines.
My Lords, how do we know whether the £5 billion programme for flood relief is sufficient and proportionate to the flood risk? Should not Parliament be able to debate this and have input into it? The more minds involved, the better our preparedness will be.
My Lords, the 2020 national risk register refers to planning to tackle Covid-19. It says that
“the UK Influenza Pandemic Preparedness Strategy covers strategic planning, response and scientific evidence for many emerging infectious diseases.”
Is not one of the lessons of the pandemic that the level of planning—for flu only—was totally inadequate? Is it not the case that there was simply no government planning for a coronavirus pandemic?
The noble Lord may understand that Covid was a novel virus that emerged. He under- estimates the importance of the pandemic planning work. The NSRA was a vital starting point for the Covid-19 response. We have discussed that in a number of ways, but there is no doubt that the fast preparation of the Coronavirus Act was the result of effective planning for a pandemic.
My Lords, one of the great successes of the vaccine programme has been bringing our level of manufacturing capability back onshore. Do the Government have similar plans for generic medicines, microelectronics and power generation equipment? All these sectors are vulnerable should, say, China choose to go to war with Taiwan.
My noble friend raises an important point. Again, I am not going to write an industrial strategy from this Dispatch Box any more than I am a diplomatic policy. We have seen the value of the co-ordinated response to Covid. The creation of a national capacity has been greatly to our benefit. I am sure that his comments will be widely noted.
Having a good risk register is not the same as having a good system of risk management. Despite pandemic being mentioned as a significant risk in the national risk register, why did the Government’s response to Covid not follow the department of health’s approved contingency plans for dealing with a SARS-type outbreak?
My Lords, as I said before, in my judgment—and in that of the Government—it is too early to draw all the lessons from the Covid emergency. Some tend to underestimate its novelty and gravity. This Government and all Governments in the world have sought to respond in the best interests of their peoples. We have drawn on the lessons from the pandemic review, as will be seen when any examination or inquiry takes place.
My Lords, the capacity market is the market mechanism we use to ensure that the volume of power generation we have available is always sufficient to meet national demand. If Hinkley Point C looks likely to be delayed, we will procure more alternative capacity in the meantime. Taxpayers and consumers will not be affected by the changes that EDF recently announced. The investors are entirely responsible for the project cost and schedule.
My Lords, I thank the Minister for her Answer. Considering the pressures of Covid, EDF is to be congratulated on what has been achieved on site. If you go to see what has been done, you will know that it is quite amazing.
Nuclear will have to provide about 30 gigawatts of electrical power by 2050 if we are to meet net zero. Large reactors are required for electrical generation but, of course, AMRs must be developed for co-generating heat and hydrogen production. Building Sizewell C is now a matter of urgency. The Government’s energy White Paper and national infrastructure strategy rightly put nuclear at the heart of our net-zero future.
The National Security and Investment Bill which is going through the House is likely to scupper Bradwell B. There is grave concern about the withdrawal of Horizon Nuclear Power’s development consent order application for the construction of Wylfa Newydd. Are the Government concerned? This new nuclear reactor is needed now more than ever. There are less than two months in which to find a solution.
My Lords, in a nutshell, Wylfa Newydd is probably the best nuclear site currently available globally. The Government are very keen to find a developer for it. While we are naturally disappointed that Horizon is not going ahead, any other developer will need to make a fresh development consent order relevant to its own technology. We are keen to discuss new-build projects with the investors of any other companies willing to develop these sites.
EDF blames the massive cost increases and delays on ground conditions. It has owned the site for more than 10 years and, if it has not been able to work out what is under the ground, heaven help us. More seriously, these cost increases follow similar stories to EDF’s two other projects in Cap de la Hague and Finland. I question whether they will ever open. Who will fund the cost escalations resulting from these delays and changes—the taxpayer, EDF or the consumer? Somebody will have to.
The cost escalation will be entirely borne by the developer. It is one of the reasons why we will pay £92.5 per megawatt hour for the electricity produced from this site. Delays have increased costs, but it had already been announced in 2019 that there was likely to be a delay and that the increased cost would be £500 million. Covid has had a significant effect. In trying to have workers on a socially distanced site, numbers have dropped from 3,800 to 2,000. Post-Covid, the figure is expected to get up to 7,000 employees.
My Lords, the price of electricity from Hinkley is remaining unchanged at £92.50 per megawatt hour, and EDF is expecting the same profit of more than 7.1% on its investment. Given that, can the Minister explain the points that she has just made about how the additional 30% of construction costs on the initial £18 billion budget is being absorbed at no cost to consumers? As the price of electricity from renewables has dropped—with wind now at £40 per megawatt hour—might not research and development into renewals have been a better investment? Hinkley already looks like transitional technology.
The truth is that we need a blend of all these technologies to produce the low-carbon power we will need by 2050. We negotiated the contract with EDF and CGN so that they would bear the full costs of any escalation in construction. The £92.5 price cannot directly be compared with the price for more intermittent forms of generation. I hope that satisfies the right reverend Prelate.
My Lords, I agree with my noble friend that we need a blend of energy. I welcome the progress on renewable energy since 2010. I hope that perhaps there will be further progress on nuclear fusion and hydrogen technologies. Can she confirm that the power station at Hinkley Point is part of our critical national infrastructure? Are we entirely confident that there are no companies involved that might owe allegiance elsewhere, should there be a crisis? She will of course know that I am talking about Chinese companies.
My noble friend will be reassured to know that the fusion projects are proceeding at a fast pace, and a competition has just been launched to host the first STEP project in the UK. As he will know, the White Paper promised £385 million to invest in new nuclear technologies. On his last point, all investment involving critical infrastructure is subject to thorough scrutiny and needs to satisfy robust legal, regulatory and national security requirements. These will only be enhanced by the National Security and Investment Bill, which arrives in this House tomorrow.
What justification can the Minister provide for licensing new nuclear plants when, 60 years after the UK’s civil nuclear programme began, the Government still have no solution for the safe, permanent storage of existing high-level nuclear waste, which remains deadly for longer than any civilisation has ever survived?
It is a priority of the Government to look after the waste securely. We have been looking for a permanent solution for the geological disposal facility. All developers are responsible for the cost of storage and transportation of nuclear waste, which has been safely disposed of since we pioneered nuclear power stations in the 1960s.
My Lords, I declare my Suffolk interests, as in the register. We will have to leave Hinkley to sort itself out from the muddle that EDF is now making, but Sizewell C is expected to cost £21 billion. Will my noble friend consider that the British Rolls-Royce consortium, which is making small modular reactors, could offer to produce eight SMRs at a cost of only £16 billion, on the same timescale as EDF was scheduled to produce Sizewell but which it will no longer be able to?
My noble friend will be aware that EDF is estimating a 20% reduction in cost for using the same technology that it has been using at Hinkley Point C, which is why we are proceeding with Sizewell C. We need a mix of all these technologies. He is right to point out the potential of advanced nuclear technologies: that is why we are investing in them. The Rolls-Royce SMR is likely to be operational by 2032. Investment in AMR technology, which has the potential to help us in our hydrogen ambitions, will follow shortly thereafter.
My Lords, I declare my interests, as shown in the register. We are losing a large amount of low-carbon firm power capacity by the end of this decade. Much of the debate on future generation has been based on comparison of levelised costs of electricity metrics between technologies. Does the Minister agree that this does not recognise the system costs of intermittent generators, and that an alternative model should be developed which accounts for this and positively incentivises renewable generators, such as equivalent firm power auctions?
The noble Lord makes an interesting point. He is right that we should take all costs of the energy system into account when making choices about our generation mix. The latest departmental modelling does this. It is not as simple as calculating firm power equivalence. A system’s cost depends on what is available across the sector, rather than focusing on each type of generation separately.
The energy White Paper stated that, at Hinkley Point C, EDF
“expects that 64% of the construction contracts, by value, will go to UK-based companies.”
Can the Minister confirm that this will continue to be the case, despite the delay and increased costs of that project? Can she translate this into the number of jobs? How widespread or, alternatively, how concentrated, are their location? What is the multiplier effect on local jobs? Will this be reflected in a similar fashion at Sizewell C, at the reduced cost now agreed?
Our aim is certainly to replicate the mix of local construction costs into the UK economy. Hinkley Point has indeed invested £12 billion into the UK economy, which represents 64% by value. I cannot comment on the multiplier effect, but Hinkley Point C has generated 10,300 jobs to date and has had knock-on effects, such as the co-operative group of farmers who now produce food for the entire Hinkley Point estate. I understand that a couple have gone on to supply other local businesses too.
Arrangement of business
My Lords, the Hybrid Sitting of the House will now resume. I ask Members to respect social distancing.
Hotel Quarantine for Travellers
Private Notice Question
My Lords, these new measures at the border are a necessary step to protect the public and our world-class vaccination programme. Every layer of protection we have put in place will help reduce the risk of transmission of the virus and prevent any potential new strain entering the UK. All measures will be kept under review and, if required, further action will be taken to add another layer of protection against transmission.
My Lords, given the good news on vaccines, should we not be ever more vigilant on our borders? The 22 December meeting of SAGE identified the rapid spread of a variant in South Africa, and the NERVTAG meeting of 13 January warned of the rapid growth of variant B1351 in South Africa and called for enhanced border measures. Since then, how many people have entered the UK from South Africa? Why, as Yvette Cooper said yesterday, is it still possible for people to return home to the UK from South Africa and go straight into the community with no tests on arrival, no quarantine hotels and no quarantine taxis? Scotland has announced extensive new quarantine rules today. When will the Government get a grip and bring in the much tougher quarantine measures they should have introduced weeks ago?
My Lords, I entirely agree with the noble Lord. He is right that additional vigilance is required. The advent of new variants that could have higher transmissibility or escape the vaccine is a complete game-changer, and that is why we have changed our approach to border management. We have upgraded our border control measures, and there will be further government announcements on that. We have introduced red lists of countries where there are variants of concern, and we have implemented Project Eagle, the tracing project to track down those who have tested positive in genomic sequencing for variants of concern.
My Lords, the Minister will be aware that Australia is imposing a two-week quarantine for all travellers flying in from abroad, with no exceptions. My son, who has dual nationality, is flying out in March to take up a job. He must have a negative Covid test result before flying and stay in a hotel for two weeks at his own expense. Australia has shown the way; when does the Minister expect the UK to follow?
The noble Baroness is completely right to cite Australia, and we take our hat off to its remarkable achievement in using its island status to protect itself against the virus. We are responding to the challenge of new variants by upgrading our measures, and announcements on this will be made shortly. The CMO’s view on the variants of concern so far is that we should have a proportionate system, which means an upgrading and not necessarily an Australia-style system. But we are putting in place the kinds of measures that could be upgraded to an Australia-style system were there to be a threat of significant magnitude.
My Lords, yesterday, the UK recorded 16,840 new Covid cases. Australia and New Zealand recorded six and one respectively. Of course, we should not be encouraging people to travel to the UK, but some people have no choice—for family reasons, for example. I encourage my noble friend, before we adopt a blanket approach to hotel quarantine, which may be appropriate for high-risk countries, to think about the cost. Can he reassure me that the Government are more than capable of adopting a dynamic, risk-based approach to hotel quarantine?
My noble friend is right that we have to be proportionate and balance risk. I flag that we are aware of the extreme measures some passengers go to in order to avoid boundary controls. Some people go to extraordinary lengths to undertake journeys that, frankly, are dangerous and irresponsible. I would normally consider travel a right of enormous value which I would fight for individuals to have. But in a pandemic, it is different. In a pandemic, travelling is dangerous. You may be taking a variant of significant danger to the country of your destination, and it cannot be regarded as something done easily and lightly, as in normal times.
The next speaker is the noble Baroness, Lady Masham of Ilton. Is the noble Baroness with us? We will come back to the noble Baroness. Let us go to the noble Lord, Lord Clark of Windermere.
My Lords, the Minister said that he believed there was a basic right to travel. I put it to him that there is an even greater right to live, yet we have the highest death rate per head of the population of any country in the world. Should we not put the right to live at the top of our agenda?
I could not agree with the noble Lord more: the right to live trumps all other rights. It is a sad fact that, while we would normally do everything we could in a liberal democracy to protect rights such as the freedom to travel, under current circumstances these are trumped by the right to live, and that is why I call on all people to limit their travel wherever they humanly can. There is simply no excuse for going to Dubai, taking Instagram photographs of yourself and claiming that that is business travel. You are putting your friends and loved ones at risk, and this Government will not tolerate it.
My Lords, given the significant community transmission of the South African variant, how confident is the Minister that we have in place today sufficient measures to stop the equivalent happening again? It does appear the Government are again running behind events.
My Lords, matters are evenly balanced. There are 143 confirmed and probable cases of the variant first identified in South Africa. Most of those have been connected with travel to South Africa, and those involved have been isolated. There are around a dozen in respect of which the chain of transmission is not fully understood. We have put in place a substantial team of dedicated tracing professionals to track down those variants of concern, along with teams in the relevant postcodes, so we are doing both a fire blanket of testing within the community and forensic detective analysis to track down the chain of transmission. It is my belief that that will be enough to keep the spread of the virus under control in this country, but we are watchful and concerned.
We will return to the noble Baroness, Lady Masham, after the next speaker, who is the noble Lord, Lord Vaizey of Didcot.
My Lords, it may seem paradoxical to impose tough restrictions just when a version of the winning post is in sight, thanks to the Minister and his colleagues’ excellent vaccine rollout. It may give us some comfort if he could update us on how effective his experts think the vaccines will be against the new variants.
My Lords, the good news to date has been that the vaccines have proved extremely robust. Certainly, the readout on the Kent domestic variant and its mutations are extremely positive. A huge amount of work is going on to understand the Brazil and South Africa variants; it seems that the latter does something to escape the vaccine, but not enough for the vaccine not to be extremely useful. The news to date is encouraging but we are extremely watchful. If a variant or mutation emerges that can escape the vaccine, we will do everything we can to protect that essential national project.
My Lords, I hope you can hear me—I was frozen. After quarantining in a hotel for five days or more and having had a test which proved negative, would a person be released? If a person had to return to the UK because they needed urgent medical treatment, would they be admitted directly to a safe hospital?
My Lords, the details of the isolation protocols have not been announced yet. However, I suggest that the amount of time needed to flush out those who have got an infection from travel may need to be longer than the five days the noble Baroness indicated. For those who have urgent need of hospitalisation, of course the NHS is there for them; we have the PHE and infection control protocols in place to protect them.
My Lords, can the Minister assure the House that any system introduced will be resilient enough to cope with a significant inflow from Hong Kong, if that were to occur? As he will know, the Government have just granted the right of entry—and, later, settlement—to up to 5.4 million from Hong Kong, roughly the entire population of Scotland.
My Lords, I share the noble Lord’s pride in that measure and concern that we extend a warm hand of friendship to those from Hong Kong. He raises the point extremely well. I would like to think that any system we put in place would be resilient to surge demand of the kind he indicates, but I will take his point back to the department and check that everything is being done accordingly.
My Lords, UK borders have knowingly been left open and potentially exposed people to new strains of the virus, rather than the implementation of the prompt, concerted action advised by SAGE and a comprehensive hotel quarantine system brought in for all UK arrivals. Does the Minister accept that the current 10-day self-isolation system has failed? If so, why is the policy still being pursued for the majority of travellers? We have been promised that hotel quarantine will be implemented for some countries as soon as possible, with some reports suggesting that this will not be enforced until the week of 15 February. Can the Minister confirm whether this is the target date? Will additional measures be in place for travellers from the red list of countries in the interim? Finally, does he accept that a partial quarantine is doomed to fail, given that global travellers may move across many countries during their journey, passing through multiple travel hubs and departure lounges while encountering and spending time close to many other travellers along the way?
My Lords, I acknowledge the detailed and perfectly reasonable questions raised by the noble Baroness, but I am unable to answer them all in detail. A Statement will be forthcoming from the Government on exactly those questions. I remind her that travel has come down by 90% in a comparative period. She is entirely right that travel patterns are complex; any measures we put in place will recognise that many travellers leapfrog from one country to another, brushing against others, and that the spread of the virus cannot be narrowly contained to travel corridors in the way one would sometimes like to hope.
The noble Lord is entirely right to be concerned about those who travel for essential reasons but who may face some hardship through their journey. We are putting in place special arrangements to ensure they are looked after in the best way possible. However, I remind him and the House that the purpose of these measures is to reduce dramatically the amount of travel. Travel is no longer a right; it is a danger, and as a result everyone needs to think very seriously before they commit to a journey.
My Lords, we need to control the new variant strains entering the UK by controlling the travel corridors at airports and seaports if we want to avoid a third wave of Covid-19. Can the Minister tell us whether the Government deem the mandatory hotel quarantine an important step to ensure the safety of the nation from further devastating deaths from Covid-19 and overwhelming pressure on our NHS, considering the huge impact this would have on immigration, police, medical staff and the parties waiting in hotels at airports and seaports around the country?
The thrust of the noble Lord’s question is entirely right. We are now living in different circumstances; the variants of concern could emerge as a real threat to the vaccine. This Government will do whatever we can to protect the vaccine deployment and the reassurance it has given to millions of people, and to protect our hospitals, our NHS and life. We will therefore do whatever it takes. He is right that travel arrangements for people must be subject to mandatory control; it is not possible to hope that people will go home and isolate in cases such as this. Hotels may play an important part in ensuring that that mandate is truly effective. Our plans are being processed at the moment; our monitoring of the variants of concern has been upgraded massively, with huge investment in international surveillance. We will update the House accordingly.
My Lords, I am afraid the time allowed for this Question has now elapsed.
Arrangement of Business
My Lords, the Hybrid Sitting of the House will now resume. I ask all Members to respect social distancing.
This is day four of Committee on the Domestic Abuse Bill. I will call Members to speak in the order listed in the annexe to today’s list. Members are not permitted to intervene spontaneously; the Chair calls each speaker. Interventions during speeches or “before the noble Lord sits down” are not permitted. During the debate on each group, I invite Members, including Members in the Chamber, to email the clerk if they wish to speak after the Minister. I will call Members to speak in order of request. I will call the Minister to reply each time. The groupings are binding, and it is not possible to degroup an amendment for separate debate. A participant who might wish to press an amendment other than the lead amendment in the group to a Division must give notice, either in the debate or by emailing the clerk. Leave should be given to withdraw amendments. When putting the question, I will collect voices in the Chamber only. If a Member taking part remotely wants their voice accounted for if the question is put, they must make this clear when speaking on the group. We will now begin.
Domestic Abuse Bill
Committee (4th Day)
Relevant documents: 21st and 28th Reports from the Delegated Powers Committee
Clause 62: Special measures in civil proceedings: victims of specified offences
109: Clause 62, page 39, line 18, leave out from “person” to end of line 19 and insert “(“P”) is, or is at risk of being, a victim of domestic abuse carried out by a person listed in subsection (1A).
(1A) A person referred to in this subsection is—(a) a party to the proceedings;(b) a relative of a party to the proceedings (other than P); or(c) a witness in the proceedings.”Member’s explanatory statement
This amendment and the other amendments to Clause 62 in the name of Lord Marks of Henley-on-Thames would apply the same special measures to parties or witnesses who are victims or at risk of being victims of domestic abuse in civil proceedings as apply in family proceedings.
My Lords, my four amendments in this group—Amendments 109, 111, 112 and 113—to which the noble Baroness, Lady Bennett of Manor Castle, has kindly added her name, are intended simply to apply the Bill’s provisions relating to special measures in family proceedings to civil proceedings as well.
Under the Bill as it stands, special measures are to be available to parties or witnesses in family proceedings who are victims of domestic abuse or at risk of being such victims. Although the provision of special measures in courts is relatively recent, the courts recognise how important it is to help vulnerable parties and witnesses reduce the trauma— the ordeal, even—of involvement in court proceedings. Special measures are arrangements to help a vulnerable party or witness give evidence or participate in court proceedings in a way that mitigates that trauma. Even in the driest and least emotional of cases, the experience of being involved in litigation, especially of giving oral evidence, is often extremely stressful. For vulnerable parties and witnesses, most with a history of deep and often emotionally searing personal involvement in the events that led to the proceedings, the experience of reliving them is fraught with anxiety, fear and even terror. Therefore, the need for special measures arises.
Such special measures enable witnesses or parties to give evidence from behind a screen, usually in abuse cases, to protect them from having to face their abuser or abuser’s family across a courtroom. Alternatively, provision can be made for witnesses to give evidence via a live link or with the assistance of an intermediary. Special measures cannot remove the fear but can help to reduce it. We take them as a matter of compassion for those involved, but also out of concern that victims and vulnerable parties should not be too frightened of bringing proceedings to come forward and therefore continue to suffer abuse in silence, sometimes with horrifying consequences. We also take special measures to help ensure that proceedings are fair, that the quality of the evidence before the court is as good as it can be in difficult circumstances, and that the courts can, therefore, make fair decisions.
For family proceedings, Clause 61 would require that where a party or witness is, or is at risk of being, a victim of domestic abuse carried out by another party or relative of another party, or by a witness in the proceedings, it is to be assumed that there is a risk of the quality of the victim’s evidence, or of her participation in the proceedings generally, being diminished.
That has the effect of bringing into play the provisions of Part 3A of the Family Procedure Rules 2010, which are supported by a detailed practice direction. They provide that victims of domestic abuse and other parties or witnesses are eligible for special measures if the quality of their evidence or their ability to participate in the proceedings is likely to be diminished by their vulnerability. The rules and the practice direction set out a full code for the court to identify vulnerability and consider ways to help vulnerable witnesses and parties. They do not just cover giving evidence. Directions may include
“matters such as the structure and the timing of the hearing, the formality of language to be used in the court and whether (if facilities allow for it) the parties should be enabled to enter the court building through different routes and use different waiting areas.”
The existing provisions also go wider than domestic abuse and cover:
“sexual abuse … physical and emotional abuse; racial and/or cultural abuse or discrimination … forced marriage or … “honour based violence” … female genital or other physical mutilation … abuse or discrimination based on gender or sexual orientation … and … human trafficking.”
Clause 61 requires the court to assume that, if the threshold I mentioned is met, special measures will automatically be available in domestic abuse cases for victims and those at risk of being victims. The court will then consider what, if any, special measures should be taken. There is scope for an opt-out under Clause 61(4), whereby a party or witness in family proceedings can signify that they do
“not wish to be deemed to be eligible”
for special measures.
The reason that I have spent some time setting out the background and the arrangements proposed for family proceedings is that they are thoroughly sensible and helpful and likely to be effective without unforeseen and unjust gaps. My amendments are directed at ensuring that the same arrangements apply in civil proceedings by bringing Clause 62 into line with Clause 61. They would implement the recommendations made by the Civil Justice Council and supported by Refuge, Women’s Aid and the Equalities and Human Rights Commission, among others.
Clause 62, as drafted, does not do the same for civil proceedings as Clause 61 does for family proceedings. For a reason I do not understand, the clause sets a higher bar for civil proceedings. There is an additional threshold test, which a party or witness would have to surmount to secure eligibility for such measures. The clause requires that to qualify as a victim or alleged victim, the person must be the victim of “a specified offence”, that is one specified in regulations by the Lord Chancellor. That condition is defined in Clause 62(3). For it to be met, there must have been a conviction or a caution for the offence, or someone must have been charged with the offence against the victim. Therefore, it would not be enough for the vulnerable witness or party to establish that they are frightened of being a victim or at risk of being a victim, nor even that they have, in fact, been a victim. They have to establish that the criminal law has been invoked so that the offender must have been cautioned or charged by the police for the specified offence or convicted of it by a criminal court. I suggest that there is no basis for this distinction between family and civil proceedings.
We know how often victims do not report abuse to the police, whether out of fear of their abusers or the relatives, fear of the trauma of criminal proceedings, concern for their private lives being exposed, or other reasons. The Office for National Statistics estimates that around four in five—79%—of survivors do not report partner abuse to the police. Requiring that victims go through the criminal process before being treated as vulnerable, and excluding those at risk of being victims from being treated as vulnerable altogether, represents a failure to understand vulnerability. Invoking criminal proceedings requires robustness. Experience and common sense tell us that vulnerable witnesses and parties are those least likely to involve the police and the criminal courts.
I have discussed this issue with the noble Lord, Lord Wolfson, and I am grateful to him for talking to me about these amendments and engaging with them. The noble Lord explained the Government’s position by saying that there is an intimacy to family proceedings not present in ordinary civil proceedings. In many cases that will be right, but I invite the noble Lord to concede, from his own experience, that there are literally thousands of cases involving partners, former partners and others who are personally connected—as defined in the Bill—which involve disputes that have a domestic or quasi-domestic context.
I give a few examples only: disputes about ownership and occupation of property; ownership, loss or damage to goods; landlord and tenant disputes, including disputes about who holds tenancies; employment disputes; and inheritance disputes. There are also disputes arising out of families running businesses together, which has become increasingly common in recent decades. These sometimes involve partnership disputes, sometimes it is disputes over the ownership of shares or misuse of company funds. In these cases, the parties might be companies, but the witnesses might have been involved in an acrimonious and abusive personal relationship.
The list goes on and lawyers well know that cases with personal connections give rise to the greatest animosity and the greatest tension. I can see no reason to apply a different test for vulnerability in civil proceedings from that applicable to family proceedings. If the conditions for family proceedings are met and the party or a witness is a victim or at risk of being a victim of domestic abuse, carried out by another party or a relative of such a party, or another witness in the proceedings, special measures should generally follow. It will always be for the court to determine whether those conditions are met, as it is in family proceedings. It would also be for the court to determine whether special measures are appropriate and what they should be. If the threshold is met, however, it is unjustified, illogical and unfair to insist that an offence must already have been committed and that the criminal law must have been invoked before eligibility for special measures is established. I beg to move.
My Lords, it is a pleasure to follow the clear, comprehensive and powerful outline of these amendments by the noble Lord, Lord Marks of Henley-on-Thames, in whose name they are tabled. It was a pleasure to attach my name to Amendments 109 and 111.
The case has been set out very clearly so I do not need to detain the Committee for long. I will just say why I attached my name to these amendments when I saw that no other noble Lords had done so. It was because of my experiences as a young journalist many years ago in Australia, when I covered mostly criminal courts. This was in the days long before there was thought of protecting witnesses who were the victims of what we now call domestic abuse.
I saw the sometimes harrowing ordeals that people had to go through. I think the noble Lord, Lord Marks used the word “ordeal”. Members of your Lordships’ House are used to testifying, speaking and being in these spaces, but we are talking about people who are victims of domestic abuse and have suffered all the personal damage that entails. They are also not used to being in these environments very often. As the noble Lord, Lord Marks, said, this is an issue of compassion—of protecting people and ensuring that we are not making victims of domestic abuse suffer again. It is also an issue of justice because if they are to be able to clearly set out the case—to explain the circumstances and to bear witness—they need to be in conditions that reasonably allow them to do that.
As the noble Lord, Lord Marks, said, to set a higher bar for civil proceedings than for family proceedings simply does not make sense. As he said, there are many cases in which civil proceedings will be intimately entangled with family issues and issues of domestic circumstances. I think particularly of farms and some cases I have seen where the acrimonious break-up of family farm businesses will often be tangled in civil proceedings but have an intensely personal side as well.
These are important, sensible and helpful amendments. I very much hope that the Government will take them on board in the interests of compassion and justice.
My Lords, I can be very brief in the light of what the two previous speakers have said on this amendment.
The purpose of this group of amendments, and a later group, is simply to provide consistency of protection for victims and survivors of abuse, across both the family and civil courts. These amendments would replicate in the civil courts protections that the Government already agree are needed in the family court. This seems an exceptionally reasonable ask. We support the aim of and reason for the amendments, as set out by the noble Lord, Lord Marks of Henley-on-Thames. I will be interested to hear from the Government why they have chosen to draft the Bill with this distinction between the courts.
My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, explained, these amendments seek to bring the procedure relating to special measures in civil courts in line with the provisions in family courts. We agree with the fundamental aim set out by the noble Lord: to ensure fair proceedings, meaning proceedings that are fair not only to the parties but to witnesses.
In that context, the Government’s starting point when considering the experience of vulnerable witnesses in the civil courts stems from the independent inquiry into child sexual abuse, which published its interim report and recommendations in April 2018. The inquiry recommended
“that the Ministry of Justice provides in primary legislation that victims and survivors of child sexual abuse in civil court cases, where they are claiming compensation in relation to the abuse they suffered, are afforded the same protections as vulnerable witnesses in criminal court cases.”
As the inquiry put it, this was to ensure that victims and survivors of child sex abuse can provide the best evidence in civil court cases.
While the Government had some sympathy with the recommendation, we also agreed that the issues raised by this recommendation needed further consideration, including whether it was right in principle to extend the protections to other vulnerable witnesses. The Government therefore sought expert help from the Civil Justice Council, which was asked to consider the vulnerability of parties and witnesses in civil actions, not just in relation to claims arising from sexual assault or abuse but more widely. The Committee will be aware that, after extensive consultation and expert input, the Civil Justice Council published its report in February last year. It conceded that there was no single or coherent set of rules in the Civil Procedure Rules dealing with vulnerability in the same way as there was in the Family Procedure Rules.
In this context, we must remember an important point, to which the noble Lord, Lord Marks, alluded. Civil cases, by their nature, have the potential to cover a much broader range of circumstances where there is no prior close connection between the parties; for example, where a victim is suing an alleged perpetrator of sexual abuse or in an action against the police or an employer where abuse is alleged. Of course, I take on board the noble Lord’s examples of cases where the parties may be corporate but, none the less, there are individual witnesses who are victims.
Having considered the matter, and in relation to special measures, the Civil Justice Council report did not go as far as recommending that it should be enshrined in primary legislation. Rather, it was felt that it was best left to the flexibility of court rules since—this is an important point—judges in civil proceedings already have inherent powers to order the provision of special measures under the Civil Procedure Rules when it is considered necessary. However, the Government took a slightly different view, taking the recommendations that came from the independent inquiry into child sexual abuse, which I have already mentioned.
As the Civil Justice Council report highlighted, vulnerability in the civil courts is not limited only to victims of domestic abuse. Some people may have mental or physical conditions that render them vulnerable and hamper their access to justice. Others, as with victims or survivors of abuse, may be vulnerable solely by reason of the subject matter of the proceedings before the court. This, as the report suggested, may affect their ability to participate in proceedings or give their best evidence.
We want to avoid—this is a risk—unnecessarily prolonging cases because of satellite litigation which revolves around the granting of special measures where the case is not contingent on vulnerability. At the same time, as I said, we need to ensure that the justice system is fair—that is, fair for all. Therefore, we must be careful to focus this provision on only the circumstances in which it is needed.
Even though the approach is different in civil courts, judges in civil proceedings already have inherent powers to order the provision of some special measures under the Civil Procedure Rules when it is considered necessary. I hope that this goes some way towards addressing the concern of the noble Lord, Lord Marks, which was shared by the other two speakers in this short debate; I acknowledge their contributions, of course, but I think it is fair to say that they largely agreed with the approach taken by the noble Lord. In that context, the Civil Procedures Rule Committee continues to examine the issues faced by vulnerable witnesses in civil courts.
While we want to ensure parity between each jurisdiction, we also need to build in allowances for the differences—and there are differences—between them. This is why the provisions in respect of cross-examination and special measures in civil cases differ from those in family proceedings.
In the light of my discussions with the noble Lord, Lord Marks, and others, and in the light of all the contributions in this short debate, let me say—in clear terms, I hope—that we very much appreciate the arguments raised in relation to fairness and the concerns around availability of special measures for those who will need them in the civil courts. We will consider this issue carefully ahead of Report and continue to listen to arguments. Of course, I remain open to discussion with both the noble Lord, Lord Marks, and others.
In the light of that confirmation and undertaking, I hope that the noble Lord will be content to withdraw his amendment.
My Lords, first, let me say how grateful I am to the noble Lords who spoke.
It was interesting to hear my rather dry opening supplemented by the personal experience of the work of the noble Baroness, Lady Bennett of Manor Castle, in courts in Australia. She made the valuable point that, generally speaking, litigants and witnesses are not used to being in court—it is a new experience for them and this adds to their concern, which is of course amplified in the case of vulnerable witnesses and parties. She also gave the interesting and important example of family farms giving rise to very personal disputes, where there is often a background of abuse. I am bound to say that, in my years of practice on the Western Circuit before doing more of what I do now, disputes about family farms were endless. They are to be taken into account. I am grateful to the noble Lord, Lord Rosser, for his support as well.
The Minister has given a considered response and ultimately made an undertaking to me and others. I am grateful for the way he has dealt with the amendments. However, I am bound to say that nothing I heard from him justifies the distinction to be drawn between the protection afforded in family proceedings and the protection available in civil proceedings. I got the impression that he understands the reasons why we have disputed that distinction.
I do not accept that a system based on the Civil Procedure Rules for protection in civil proceedings is anything like as good as a system based on statute, as the arrangements in family proceedings will be following this Bill. If a statutory arrangement is good enough for family proceedings and is applicable as appropriate for those, I would suggest that it is appropriate for civil proceedings as well. Nor do I accept that there is a realistic prospect of satellite litigation arising regarding the availability or withholding of special measures. That seems most unrealistic and, in any event, even if it were realistic, it would be no more realistic in a set of measures based on legislation than it would be presently in a set of measures based on the uncertain application of the rules of court. I welcome the Minister’s commitment to further engagement. I regard this as a very important issue, and I will of course speak to him, as no doubt will others, between now and Report in the hope of achieving agreement. I beg leave to withdraw the amendment.
Amendment 109 withdrawn.
Amendments 110 to 113 not moved.
Clause 62 agreed.
We now come to the group beginning with Amendment 114. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division must make that clear in the debate.
Clause 63: Prohibition of cross-examination in person in family proceedings
114: Clause 63, page 40, leave out lines 31 to 35
Member’s explanatory statement
This is to probe that in the family court, where a perpetrator’s conviction is spent, other protections will be in place to protect a victim of abuse from being cross-examined by the perpetrator.
My Lords, I am speaking in place of my noble friend Lord Ponsonby of Shulbrede on this and a small number of groups to follow. My noble friend sends his apologies to the Committee; he is unable to be here because he is sitting in court today as a magistrate.
Amendment 114 is probing in nature. Proposed new Section 31R in Clause 63 provides for protections against cross-examination in person where one of the parties has a caution or conviction for a specified domestic abuse-related offence against the other. Subsection (3) provides that the protection does not apply where the conviction or caution has been spent. This amendment would remove subsection (3). It is intended to clarify that where a domestic abuse conviction or caution has been spent, other protections against cross- examination in person will apply to prevent a victim suddenly being open to cross-examination in person by a perpetrator with a history of abuse. We are all aware of the traumatic and long-lasting impacts that domestic abuse can have and the continuing risk of abuse that victims can face from a perpetrator. Where a conviction becomes spent and the protections under this new section lapse, there should surely be a risk assessment before cross-examination in person can be permitted. I hope that we are going to find out that the Bill will provide these extra protections where there is evidence of abuse or a risk of distress to the victim. It would helpful if the Government could give clarity and assurances on this point in their response.
The Victims’ Commissioner for London has also raised with us the issue of restraining orders, which are often given for a fairly short period. It would be helpful if the Minister could give assurances that the expiration of a restraining order would not impact on the ability of a victim to access necessary protections from that perpetrator in a family proceeding. I look forward to the Minister’s reply and to his explanation of the various government amendments in the group. I beg to move.
My Lords, I shall speak to Amendment 114. As the noble Lord, Lord Rosser, has just said, it is purely a probing amendment concerning the need for additional safeguards in cases where a conviction or caution has been spent. It seeks to build on the excellent proposals championed by the Government to protect the survivors of domestic abuse from being cross-examined by their perpetrators in the family court. As the former Victims’ Commissioner, I sadly heard directly from abuse survivors who had endured the pain, humiliation and re-traumatisation of being questioned on the stand by their abuser, and I am glad that we are putting an end to this blatantly abusive practice.
None the less, I am concerned that the current provisions overlook a scenario that we are likely to see in the family courts. Clause 63 does not currently apply to a conviction or caution that is spent. This is for the purposes of the Rehabilitation of Offenders Act 1974. I understand the motivations behind not further punishing an offender past the time when they are considered rehabilitated, yet we know that domestic abuse involves patterns of behaviour that will not necessarily be interrupted or indeed stopped by a conviction. Thanks to data from SafeLives, we know that a quarter of high-harm perpetrators are repeat offenders, with some having at least six different victims. In other parts of the Bill, we will debate the need for an effective perpetrator strategy that will undoubtedly seek to improve our interventions post conviction.
Proceedings in the family courts can go on for years and may well continue past the time when a conviction or caution has been spent, especially if other convictions or cautions occurred. However, unless some sort of intervention has been made with the perpetrator, the risk could well remain. I raise this scenario to suggest not that we should further punish, but that such risks have not been fully considered. If there was one key takeaway from the Ministry of Justice Expert Panel on Harm report, it was that there are systemic issues with how risk is identified and managed in the family courts in relation to domestic abuse.
I therefore ask my noble friend the Minister whether he considers that the proposals in the Bill as drafted will ensure that such risk is properly managed in cases where convictions or cautions have been spent. I suggest that this provision needs to be reviewed and that extra safeguards such as risk assessments should perhaps be introduced in such cases.
My Lords, I am pleased to follow my noble friend Lady Newlove and I warmly congratulate the Government on introducing the Bill. In doing so, I am pleased to have the opportunity to voice my support for its aims, in particular the proposals to reform the family court and provide protection measures for victims suffering domestic abuse. Even going to court is a harrowing and daunting process which can cause significant distress when a victim comes face to face with their perpetrator, even when the engagement is indirect. Measures must be in place to ensure the provision of separate entrances to the court building, as we heard earlier, and separate waiting rooms.
We know that domestic abuse comes in many traits. It is based not only on physical violence but on emotional, coercive, controlling or even economic abuse. Perpetrators of abuse should be inhibited from cross-examining their victims in person. Perpetrators should be prevented from directly or indirectly engaging with a victim during family court proceedings, particularly as many victims fear false accusations of parental alienation, which clearly has prevented many telling their personal stories. Protective screens in a court setting help to shield victims from their alleged abuser and prevent intimidation, as do live links, evidence-giving in private and greater emphasis on reassuring abuse victims, particularly children, who are always victims. These new measures will help to achieve the best result for those children.
Having received many briefings and personal testimonies, victims eagerly await new protective measures, so that the reporting of victims being re-victimised and retraumatised within the family court setting is stopped. The Bill must deliver a once-in-a-lifetime opportunity to transform our national response for domestic abuse victims and, in achieving the right support for those victims, will go a long way to helping them rebuild their lives. Importantly, they will be listened to.
My Lords, I agree with the comments made by the noble Baroness, Lady Redfern, in a broader context. On the particular issue in this group, I have listened very carefully to the case made by the noble Lord, Lord Rosser, reinforced by the noble Baroness, Lady Newlove. The noble Lord talked about a risk assessment before cross-examination if someone has a history of abuse. Presumably he is referring to somebody with a history of abuse but whose convictions are spent under the Rehabilitation of Offenders Act. The noble Baroness, Lady Newlove, talked about repeat offenders. Repeat offending is very common when it comes to domestic abuse, but I wonder whether a perpetrator with a history of abuse, a repeat offender, is less likely to have spent convictions or cautions.
The Rehabilitation of Offenders Act is an important piece of legislation that allows offenders to move on from their previous offending, but my understanding is that if a court decides that justice cannot be done without the conviction or caution being taken into account, the court can take account of a spent conviction. This potentially means that a court could prevent cross- examination of a victim of domestic abuse if it decided that a spent conviction or caution was relevant.
I look forward to hearing the Minister’s understanding of the legislation as it is. We have no objection to the Government’s amendments in this group.
My Lords, I will begin with the amendments tabled by the noble Lord, Lord Ponsonby, to which the noble Lord, Lord Rooker, so ably spoke, and will then turn to the government amendments, which deal with various technical and drafting changes to the same clause.
As has been explained to the Committee, Amendment 114, in the name of the noble Lord, Lord Ponsonby, would remove a qualification of the automatic prohibition on cross-examination in family proceedings by those convicted of, cautioned for or charged with specified offences, and their cross-examination by the victim or alleged victim. The removal of this qualification would mean that spent convictions and cautions under the Rehabilitation of Offenders Act 1974 would continue automatically to trigger the prohibition, irrespective of how old they may be or how circumstances might have changed. I respectfully agree with the noble Lord, Lord Paddick, that the Rehabilitation of Offenders Act is a very important provision. It enables a line to be drawn and people to move on.
It is in that context that, at the moment, the form of the Bill is that spent convictions and cautions should automatically trigger the prohibition only where evidence in relation to the conviction or caution is admissible in relation to the current family proceedings. However, as the noble Lord, Lord Rosser, reminded us, and as the Government fully acknowledge, the damage caused by domestic abuse may often last for decades, sometimes a lifetime, and well beyond the point at which a conviction or caution is spent. One must also consider the point made by my noble friend Lady Redfern, that the court process is daunting, especially for victims of abuse. Therefore, the noble Lord, Lord Rosser, is right to test the adequacy of Clause 63 in guarding against cross-examination which remains inappropriate despite convictions or cautions being spent. I am sure that all Members of the Committee will have been moved by the personal testimony of my noble friend Lady Newlove, when she explained the effect that such cross-examination can have.
However, the Government believe that Clause 63 provides adequate protection in such circumstances. We must bear in mind that the automatic prohibition on cross-examination is also triggered where a protective injunction is in place—that is the force of the new Section 31S—or where prescribed evidence of domestic abuse is provided to the court; that is the force of the new Section 31T. Moreover, and of greater importance here, given the sometimes more historical nature of abuse, is what we intend should become Section 31U of the Matrimonial and Family Proceedings Act 1984. This is an important provision, which provides context against which the noble Lord’s amendment should be considered.
New Section 31U is in deliberately broad terms and provides for a wide discretion to meet the particular facts and circumstances of the case before the court. It enables the court, either in response to an application or of its own motion, to prohibit cross-examination where it would diminish the quality of evidence or cause significant distress, so long as to do so is not contrary to the interests of justice. Any such direction will remain in place until the witness is discharged, unless it is revoked by the court in specified circumstances; for example, if circumstances have materially altered. Therefore, to answer the point made by my noble friend Lady Newlove, we consider the Bill sufficient in cases of spent convictions, because that provision enables the court to impose the ban if it appears to the court that the two conditions in new subsection 1(b) are met. That provision would therefore also deal with the point made by the noble Lord, Lord Rosser, concerning cases of past injunctions or restraining orders. New Section 31U is a very broad provision that enables the court to respond to the facts of a case and ensure that a suitable order is made. I agree with the noble Lord, Lord Paddick, that it is important that the court has this ability, for the reasons that I have set out, under new Section 31U. I hope that this gives the Committee, particularly the noble Lord, Lord Rosser, what they sought, which, according to my note, was clarity and assurance. I hope that I have provided both.
I am not going to say very much about the government amendments because there are short explanations printed in the Marshalled List, but I shall run through them briefly. Amendment 115 amends the definition of conviction to a conviction “by or” before a court. This is to provide consistency with provisions around convictions elsewhere in the Bill. Amendments 116 to 119 make some changes to the references to convictions in service disciplinary proceedings. Some proceedings under service law lead not to a conviction but to a finding of guilt or a finding that a charge has been proved. In addition, a person will sometimes be convicted of an offence under the Service Disciplinary Act, known as SDA, under a transitional order made as a result of the repeal of earlier Armed Forces legislation. These amendments simply bring the references in the Bill to these types of convictions in line with the most recent precedent set by Section 65 of the Sentencing Act 2020. Finally, Amendment 120 corrects the reference to Section 80 of the Sentencing Code in the current text of the Bill, which is incorrect, for which I apologise. This amendment corrects the reference to Section 82.
I return to the principal amendment before the Committee, Amendment 114 in the name of the noble Lord, Lord Ponsonby. For the reasons I have set out, I hope that the noble Lord, Lord Rosser, on his behalf, will find himself able to withdraw it.
I thank the Minister for his considered response, which I appreciate. I also thank other noble Lords who spoke in this debate for their contributions, particularly the noble Baroness, Lady Newlove, for adding her name to Amendment 114.
I said at the beginning that this is a probing amendment intended to gain clarity and assurances that where a domestic abuse conviction or caution has been spent, other protections against cross-examination in person would apply to prevent a victim suddenly being open to cross-examination in person by a perpetrator with a history of abuse. In his considered response, the Minister sought to give that clarity and those assurances. I shall reflect further on what he said in response to this probing amendment. In the meantime, I beg leave to withdraw the amendment.
Amendment 114 withdrawn.
Amendments 115 to 120
115: Clause 63, page 41, line 20, after “conviction” insert “by or”
Member’s explanatory statement
This amendment makes a minor drafting change.
116: Clause 63, page 41, line 24, at end insert “, including—
(i) in the case of proceedings in respect of a service offence, anything that under section 376(1) and (2) of the Armed Forces Act 2006 (which relates to summary hearings and the Summary Appeal Court) is to be treated as a conviction for the purposes of that Act, and(ii) in the case of any other service disciplinary proceedings, a finding of guilt in those proceedings;” Member’s explanatory statement
This amendment provides that “conviction”, in relation to service disciplinary proceedings, includes a finding of guilt and a finding in summary proceedings before an officer that a charge has been proved.
117: Clause 63, page 41, line 32, leave out from “offence” to “(except” in line 33
Member’s explanatory statement
This amendment and the Minister’s amendment at page 41, line 41 expand the definition of “service disciplinary proceedings” to include proceedings in respect of offences under previous armed forces legislation.
118: Clause 63, page 41, line 34, leave out “that Act” and insert “the Armed Forces Act 2006”
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 41, line 32.
119: Clause 63, page 41, line 41, at end insert—
““service offence” means—(a) a service offence within the meaning of the Armed Forces Act 2006, or(b) an SDA offence within the meaning of the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059);”Member’s explanatory statement
See the explanatory statement for the Minister’s amendment at page 41, line 32.
120: Clause 63, page 42, line 1, leave out “80” and insert “82”
Member’s explanatory statement
This amendment corrects an incorrect cross-reference.
Amendments 115 to 120 agreed.
We now come to the group consisting of Amendment 121. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this amendment to a Division must make that clear in the debate.
121: Clause 63, page 44, line 29, at end insert—
“31VA Direction to prohibit direct or indirect engagement: evidence of domestic abuse(1) In family proceedings, where specified evidence is adduced that a person who is a party to the proceedings has been the victim of domestic abuse carried out by another party, the court may give a direction prohibiting the latter party from directly or indirectly engaging with the victim during proceedings, if the court deems any such engagement is causing significant distress to the victim.(2) In this section—“domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2021;“specified evidence” means evidence specified, or of a description specified, in regulations made by the Lord Chancellor.(3) Regulations under subsection (2) may provide that any evidence which satisfies the court that domestic abuse, or domestic abuse of a specified description, has occurred is specified evidence for the purposes of this section.(4) A direction under this section may be made by the court— (a) on an application made by a party to the proceedings, or(b) of its own motion.(5) In determining whether the significant distress condition is met in the case of a party, the court must have regard to, among other things—(a) any views expressed by the victim;(b) any views expressed by the other party;(c) any behaviour by the party in relation to the victim in respect of which the court is aware that a finding of fact has been made in the proceedings or in any other proceedings;(d) any behaviour by the party at any stage of the proceedings, both generally and in relation to the victim;(e) any behaviour by the victim at any stage of the proceedings, both generally and in relation to the party;(f) any relationship (of whatever nature) between the victim and the party.(6) If the court decides that there are no alternative measures to prevent engagement which causes distress, the court must—(a) invite the party to the proceedings to arrange for a qualified legal representative to act for the party during the court proceedings, and(b) require the party to the proceedings to notify the court, by the end of a period specified by the court, of whether a qualified legal representative is to act for the party for that purpose.(7) Subsection (8) applies if, by the end of the period specified under subsection (6)(b), either—(a) the party has notified the court that no qualified legal representative is to act for the party during the court proceedings, or(b) no notification has been received by the court and it appears to the court that no qualified legal representative is to act for the party during the court proceedings.(8) The court must consider whether it is necessary in the interests of justice for the party to be represented by a qualified legal representative appointed by the court to represent the interests of the party.(9) If the court decides that it is, the court must appoint a qualified legal representative (chosen by the court) to represent the party.(10) If the court appoints a qualified legal representative to represent one party, and the other party to proceedings is not represented, the court must consider whether it is necessary in the interests of justice for the other party also to be represented by a qualified legal representative to ensure a fair process.(11) If the court decides that it is necessary to appoint representation under subsection (10), the court must choose and appoint a qualified legal representative to represent the other party.”Member’s explanatory statement
These changes would give courts the discretion to prevent a perpetrator directly or indirectly engaging with a victim during family court proceedings, where such engagement is causing distress, and to appoint a legal representative to represent the perpetrator in court, if that is necessary to prevent distress to the victim.
My Lords, this amendment would build on the provisions on cross-examination that the Government have introduced into the Bill. In particular, it seeks to extend the support available to reflect the structure of the family court. Clause 63 provides the court with the power to appoint a publicly funded qualified legal representative to act for a party who is prohibited from cross-examining a witness in person. The court has the power to prohibit cross-examination where there has been a conviction or charge for a domestic abuse-related offence as well as in cases where it would diminish the quality of the evidence or cause significant distress to the person being cross-examined, an issue to which I think the Minister referred in the discussion on the previous amendment.
These changes are, of course, very welcome. However, the structure of family proceedings differs significantly from that of criminal proceedings. In criminal proceedings the parties will normally come together only once at trial. During the course of family proceedings, both parties are more likely to be in attendance at court for a number of hearings before the cross-examination process. The Bill as drafted would appear to leave parties without support for potentially a number of hearings and would only provide a legal representative for a relatively small proportion of the proceedings. The Magistrates’ Association supports this amendment, and we thank it for its work on these issues.
As my noble friend Lord Ponsonby of Shulbrede indicated at Second Reading, these factors raise two principal issues: first, whether the advocate is able to their job effectively if they are involved in only a small part of the proceedings, and secondly—crucially—whether a litigant in person can navigate the rest of the court process and what impact that has on cases involving domestic abuse and outcomes for children.
Amendment 121 would provide that in family proceedings where there is evidence of domestic abuse, the court may prevent a party directly or indirectly engaging with the victim during proceedings, not only at cross-examination, if the court deems that any such engagement is causing significant distress to the victim. In those cases, the court must invite the party to arrange for a qualified legal representative or appoint a qualified legal representative to represent them. It also provides that if representation is appointed for one party, which would usually be the perpetrator in this case, the court must consider the need to appoint representation for the other party to ensure fair process. This speaks to the wider issue of the lack of legal support in private law proceedings.
In cases which are by their nature incredibly sensitive and can cause significant distress where there is a history of abuse, the court process is complex and difficult to understand for many. Litigants in person can find it difficult to follow the instructions of the court or to comply with all the elements of a court order. I know that it is the experience of my noble friend Lord Ponsonby of Shulbrede that without the right support in place, people will often be driven simply to give up, lose heart and drop out of the legal process. We believe that appropriate legal assistance should be provided throughout this process. Cross-examination is not, as my noble friend put it, the only “flashpoint” in proceedings.
The amendment speaks to a problem that the Government have already recognised and decided to act upon: the need to prevent inappropriate engagement between parties in court and to provide suitable legal representation where there is evidence of abuse. Amendment 121 would simply structure those provisions which the Government already support to reflect accurately the structure of the family proceedings to which they apply, to which I have already referred.
Finally, I shall not detain the Committee by repeating some of the arguments I have just made on the next group in the name of the noble Lord, Lord Marks, but I welcome the aims of his amendments and look forward to that debate. On this amendment, I look forward, I hope, to a positive reply from the Minister.
My Lords, I congratulate the noble Lord, Lord Rosser, on the excellent way in which he has presented the amendment in place of his noble friend Lord Ponsonby. He has been able to use the great experience of his noble friend in family proceedings in illustration of the amendment.
I strongly support the amendment because I feel certain that, while cross-examination is important, contact between the parties in a family proceedings, although much more spread out, is of critical importance. Things such as the arrangements for children to be with one parent or the other are often extremely difficult to work out. It requires personal and direct contact between the parties, because it is next to impossible to accommodate the needs of the parties without it. It is therefore extremely important that this is done with a fair amount of detail to allow representation to be made.
That is, in principle, already part of the government Bill, but the Magistrates’ Association—of which the noble Lord, Lord Ponsonby, is a good example—has great experience of how it should work, and the amendment seeks to work that out in some detail. I warmly support it because it is very well done. As I said on a previous occasion, the fact that the Magistrates’ Association supports it is a powerful reason for us to support it too.
My Lords, my noble friend Lord Marks will speak to most of the amendments regarding court proceedings, but I am glad to be able to say a word on this one. I acknowledge that the Government recognise the need for measures to support victims of domestic abuse in various proceedings. Like the noble and learned Lord, Lord Mackay, I think the very fact that Amendment 121 was tabled by a practitioner who has already shared with the Committee a lot of extremely useful experience, as he does on all occasions, and from the Magistrates’ Association, whose briefings I have always found very useful, pretty much makes the point. It is certainly very persuasive.
As I read it, the amendment would address what is meant by “engagement” in a particular context. As the noble Lord, Lord Rosser, explained—his explanation was clear—in family cases the proceedings are generally not a single event but comprise a series of hearings. They are quite unlike proceedings in the criminal court or the civil court, where a discrete claim is dealt with. To use a bit of current jargon, I read this as enabling the court to be agile in applying, as it goes along, appropriate measures and making directions as it becomes clear that they are needed.
In an attempt not to oppose the amendment but to develop it, I have been wondering how it would—or maybe will—operate in practice. One assumes that there will be a need to find a lawyer for whatever reason, probably financial, and that the parties will have already considered that. Who will pay the lawyer, and pay enough for them to do a complete job, not just coming in at the last minute but understanding the whole background to the proceedings and taking full instructions? If the lawyer is appointed by the court, to whom is he responsible? Is the person he represents a client for all purposes? I absolutely take the point about the difficulty that litigants in person have, so finding ways to assist can only be to the good. I hope that these proposals can be taken forward.
My Lords, I thank my noble friend Lord Rosser for so comprehensively outlining the purpose behind Amendment 121 and the very strong case for it. I also thank the noble and learned Lord, Lord Mackay, for his clear explanation.
It is of course important from the legal perspective to look at the different situations in the family courts and the way in which different stages in the proceedings need to be accommodated. I also feel that the amendment is important because of the potential human impact of the absence of such a provision. Legal representation is important, as is the ability of the court to make determinations where distress has been, or could be, caused to the victim. It is also important to anticipate the impact on victims who might choose to go down this route if such a provision is not in place.
The fear and intimidation involved in advance of a decision to begin proceedings in family courts, or to continue with them after they have started, can be very daunting for any victim but perhaps in particular for a victim of domestic abuse. Therefore, putting these provisions in place would help encourage those who need to take a stand and make the move, trying to get out of their current circumstances and into a better place for them and the children. It could encourage them rather than put them off continuing proceedings or beginning them in the first place.
I want to ask a specific question about the impact on children. Over the years, I have seen many cases where intimidation at this stage has not necessarily been directed at the former partner or wife of the abuser, but at the children in order to indirectly intimidate the former partner or wife. Although we have clearly indicated in Clause 3 that children should be properly recognised as victims of domestic abuse, I would like the mover and supporters of the amendment to clarify that, either directly or indirectly, children affected by such distress would be covered by the provisions at the start of the proposed new clause.
For example, would the definition of children as victims mean that any distress caused to children fell under this provision? If not, would intimidation of children be deemed an indirect cause of distress? If the Government are not content to include the amendment or similar provisions in the final Bill, I would be particularly interested to hear from the Minister, on their behalf, how children who might be affected in this way around the family courts, whether outside or even within the court setting if they have been asked to play some kind of role by either their parent or the court, will be protected if this provision is not in place. I look forward to hearing the Minister’s response.
My Lords, we support this amendment for the reasons given by the noble Lord, Lord Rosser, as amplified by the noble and learned Lord, Lord Mackay, my noble friend Baroness Hamwee and the noble Lord, Lord McConnell of Glenscorrodale.
This amendment recognises that in cases involving domestic abuse, just as in any litigation, engagement between the parties is not limited to conducting the case, giving evidence, cross-examining witnesses and making submissions to the judge. The noble and learned Lord, Lord Mackay, pointed out that the inadequacy of arrangements that govern cross-examination alone make such arrangements difficult to justify.
There is often a need for the parties to consider and discuss the conduct and progress of the case, as the noble and learned Lord, Lord Mackay, pointed out. That is usually done through their advocates. Yet when the parties are perpetrator and victim of domestic abuse, and are unrepresented, the need for engagement can become an occasion for intimidating behaviour or bullying of the victim by the perpetrator. That need not even be deliberate, though it often is. Even if intimidation is not explicit in court, it may be effected by implied threats of what might happen later, or even by fear on the victim’s part—even if without justification —of what might happen later.
As discussed in earlier groups, the mere presence of the parties together in court can cause distress, intimidation, or trauma to victims. The outcome can be that victims are deterred from bringing proceedings at all. The experience of the proceedings can be grossly traumatic, to the extent of causing lasting harm, and just outcomes can be made that much more difficult to achieve. So, it is completely right that the court should be able to prohibit engagement by a party that unduly distresses the victim in the way set out in this amendment, whether that engagement be direct by the perpetrator or indirect through others. Yet, if the parties have no means to engage at all, there may be opportunities missed for resolving conflict or, at least, for making the issues clearer and enabling the court to achieve safer outcomes.
In cases where the parties are not represented, it is obviously sensible for there to be provision for representation to be arranged. As the amendment proposes, that should involve, in appropriate cases, the instruction of a court-appointed lawyer—not just for the perpetrator but for the victim as well. That is what the amendment proposes and I firmly believe it is right to do so. For my part, I believe that justice would be best done by ensuring that full legal aid is available for both parties to domestic abuse proceedings throughout those proceedings, which often last through several hearings, as the noble Lord, Lord Rosser, my noble friend Baroness Hamwee and the noble Lord, Lord McConnell, have said. The noble Lord, Lord McConnell, also highlighted the real risk of deterring litigants from bringing or pursuing proceedings once they are under way, by the absence of arrangements for representation.
This amendment does not go as far as we would like, but I know many noble Lords believe that full legal aid for both parties should be the outcome. Meanwhile, it would fill an important gap by preventing intimidation of victims by perpetrators during the course of proceedings, while keeping the door open to engagement between lawyers, which may smooth a path to resolution.
My Lords, as the noble Lord, Lord Rosser, has explained, this amendment —to which my noble and learned friend Lord Mackay of Clashfern has added his, if I may respectfully say, very weighty name—seeks to expand the scope of the prohibition of cross-examination provided for in Clause 63 by prohibiting the perpetrator from engaging directly or indirectly with the victim during proceedings where that engagement would cause them significant distress. It goes on ultimately to provide for the potential appointment of a legal representative, chosen by the court, to represent both parties to ensure a fair process in the interests of justice in such cases. I can assure the Committee, in particular in response to the points made by my noble and learned friend Lord Mackay of Clashfern and others, that because this amendment has been supported by the Magistrates’ Association, we have given it very careful consideration.
As the noble Baroness, Lady Hamwee, explained, I am as every bit as concerned as her, and indeed the noble Lord who is proposing the amendment, to ensure that domestic abuse victims are adequately protected in the family courts. It is for that reason that the Government are already taking decisive steps to act on the recommendations of the Expert Panel on Harm in the Family Courts, in response to which we published our implementation plan in June 2020.
The Bill contains various measures designed to protect domestic abuse victims in family proceedings and across the other jurisdictions. In that context, I bear in mind the point made by the noble Lord, Lord McConnell of Glenscorrodale: the human impact that domestic abuse has, and that it can require some bravery to go to and appear in court in those circumstances, a point also made by the noble Lord, Lord Marks. Therefore, within the court environment, our provisions on special measures made it clear that the victims of domestic abuse and other parties or witnesses are eligible for special measures such as a screen during proceedings, where the court is satisfied that the quality of their evidence is likely to be diminished due to their vulnerability. In that context, on the point put to me by the noble Lord, Lord McConnell of Glenscorrodale, regarding the position of children, Clause 3(2) provides that any reference in the Bill to a victim of domestic abuse
“includes a reference to a child who … sees or hears, or experiences the effects of, the abuse, and … is related to A or B.”
Therefore, the Bill is structured very much with victims of domestic abuse, who may include children, firmly in mind.
It is not entirely clear from the noble Lord’s amendment whether the intention is that “direct or indirect engagement” during proceedings be confined to the court setting, by which I mean what goes on in the courtroom itself, or extend more widely for their duration, as set out in debate by my noble and learned friend Lord Mackay of Clashfern and repeated by the noble Lord, Lord Marks of Henley-on-Thames. There is often a need for what my noble and learned friend called personal and direct contact between parties in such proceedings. In that regard, one must bear in mind that under Part 3 of the Family Procedure Rules 2010, the court can make a participation direction. That can include the use of special measures, which are a series of provisions to help a party or witness to participate or give evidence in court proceedings. That is a range of measures available both to parties and witnesses to enable them to participate in an appropriate manner.
Beyond that, the courts have a range of protective orders, such as non-molestation orders and restraining orders, that can be made to protect victims when they are not within the confines of the court building. In addition, when introduced by the Bill, domestic abuse protection orders can be used to protect victims of domestic abuse outside the courtroom during proceedings. That is because the DAPO brings together the strongest elements of the existing protective orders into a single comprehensive and very flexible order that we believe will provide more effective and longer-term protection than the existing protective orders for victims of domestic abuse and their children. I underline the point that there may be circumstances in which children are also victims. So, for example, if children are giving evidence inside court, special measures may well be applicable and the prohibition on cross-examination may also apply.
I turn to one of the central points made by the amendment. It deviates significantly from the underlying principles underpinning Clause 63 in relation to cross-examination. I shall make three short points, some of which have been anticipated by the noble Baroness, Lady Hamwee. First—and I suspect I will be dealing with this point in more detail in the next group of amendments—the clause is explicit that any legal representative appointed by the court to carry out cross-examination will not be responsible to the party in whose place they ask questions. By contrast, in the amendment it is the clear intention that the advocate will represent the parties where engagement is prohibited and will owe them all the duties of a lawyer to his or her client.
The second deviation from the principles underlying Clause 63 is that the steps that must be followed before the court appoints a legally qualified representative are different. There is no requirement in the amendment that the court must consider alternatives to legal representation before inviting the parties to do so. By contrast, the clause makes that an express requirement.
Thirdly, and significantly, the amendment does not make any provision as to how a legal representative appointed by the court where engagement is prohibited will be paid. There is no indication as to whether they are to be paid by the parties or, as will be the case for those appointed to conduct cross-examination where that is prohibited by the party, from the public purse.
In that context, the noble Lord, Lord Rosser, raised the broader issue of funding. I probably should not go into this in too much detail, given the narrower confines of this amendment, but the noble Lord will know that we are currently conducting a review of the means test with regard to legal aid, as part of which we are specifically considering the experiences of victims of domestic abuse. We have made a public commitment to look at the capital thresholds for victims of domestic abuse where these apply. However, at the moment, the legal aid agency is able to apply for an eligibility waiver for victims of domestic abuse who are applying for an injunction or other order for protection. Therefore, an applicant for such an order may be eligible for legal aid even if they have income or capital above the thresholds in the means test, although they may have to pay a financial contribution towards their legal costs. That review is ongoing, and we would seek to implement any final recommendations as soon as practicable after a public consultation.
Coming back to the main thrust of the amendment, however, for the reasons that I have set out I do not believe that a new prohibition on direct or indirect engagement is necessary, given the current and new protections in the Bill. However, we will monitor their effectiveness and continue to assess whether any further measures should be necessary. Therefore, irrespective for these purposes of the points that I have mentioned of a lack of clarity in the amendment as to how legal representatives would be remunerated as well as the lack of a requirement to consider alternatives to legal representation, for the reasons that I have set out as points of principle, I invite the noble Lord to withdraw the amendment.
I again thank the Minister for his considered response, particularly his comments at the end, which clarified in my mind the basis of the Government’s lack of enthusiasm for the amendment. As the Minister has clarified, the Government do not believe that the terms of the amendment are needed because the issues raised are covered by other measures in the Bill or existing provisions. It is not a case of certain parts of the amendment not being particularly well worded or the wording leaving certain issues unresolved.
I thank all noble Lords who have spoken in this debate for their contributions. I particularly thank the noble and learned Lord, Lord Mackay of Clashfern, for adding his name to the amendment. Clearly, we will want to reflect further on what the Minister has said, particularly the reasons for not accepting the amendment—namely, that the issues raised are covered by other measures in the Bill and by existing provisions. We will want to reflect on that and then determine whether to bring this matter back at a later stage. I beg leave to withdraw the amendment.
Amendment 121 withdrawn.
My Lords, we now come to the group beginning with Amendment 122. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate, and that anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
122: Clause 63, page 45, leave out lines 16 and 17 and insert—
“(7) A qualified legal representative appointed by the court under subsection (6) is responsible to the party, but must cross-examine the witness having regard to such directions as the Court may give to protect the witness from significant distress or to prevent the quality of the witness’s evidence from being diminished.”Member’s explanatory statement
This amendment is intended to maintain the responsibility of the legally qualified representative to the party in whose interests the cross-examination is conducted while ensuring it is conducted with proper regard for risk of distress to the witness and risk that the quality of the witness’s evidence might be diminished.
My Lords, this group of amendments addresses the role of a legally qualified representative appointed by the court to conduct cross-examination under Clause 63 in family proceedings or Clause 64 in civil proceedings. The amendments also address the need for the availability of legal aid for both parties in domestic abuse proceedings.
Dealing first with those amendments relating to the role of court-appointed legal representatives, in each such case a party, who typically, but not always, will be the perpetrator, is prohibited under the Bill from cross-examining a witness directly. In any such case, the court will have considered whether there is a satisfactory alternative means of enabling the witness to be cross-examined or of obtaining the evidence that the witness would have given without cross-examination. For the moment, I find difficulty in seeing exactly how that would work unless there were other witnesses who could give evidence to the same effect as the evidence that the witness might have given.
If the court cannot find alternative ways of getting the witness to give evidence before the court, it will have invited the party who, but for the prohibition, would have conducted the cross-examination to instruct a lawyer within a specified time to conduct the cross-examination instead. If the party does not instruct such a lawyer—usually, one supposes, because of financial constraints—the court will consider appointing a qualified legal representative
“to represent the interests of the party”
to conduct the cross-examination
“in the interests of the party”.
The proposed provisions are complicated but unobjectionable so far. However, I am concerned by the proposals, in both family and civil proceedings, that such an advocate
“is not responsible to the party”,
a point mentioned by the noble Lord, Lord Wolfson, in the last group but which he politely deferred for consideration to this one. I regard this as a dangerous precedent that is inimical to a fundamental principle of our court process, which is that the advocate owes a duty to his client, although that duty is at all times subject to the duty that the advocate owes to the court.
The analogy that applies to what is proposed here is with special advocates, who are appointed for cases before the Special Immigration Appeals Commission or various other cases where issues of national security are involved. In such cases, the reason why those appointed as special advocates do not carry a responsibility to the persons whose interests they represent is that they are specifically prohibited from disclosing to those persons the security-sensitive material that is being disclosed to them—in other words, the special advocates are effectively sworn to secrecy. In those national security cases the special advocates cannot take instructions upon the secret material disclosed to them, nor can they consider with those whom they represent how to deal with or respond to such material. In those circumstances they have an independence that is treated as precluding a responsibility to the persons whose interests they represent.
The position is quite different here. No issues of national security are involved. Secrecy is not an issue. No material is withheld from the party represented. There is no bar on full discussion between the advocate and that party. Indeed, if justice is to be done, there is an imperative for the advocate to take full instructions and to consider, in the light of the evidence and the party’s account of the facts, what questions should be asked.
The starting point has to be that the advocate owes a responsibility to the client and I see no reason to depart from that. The advocate should, for example, owe the client a duty of care, and a duty to take instructions accurately, read the papers carefully and approach the case on the basis of the client’s instructions. The advocate should be answerable to the client if he or she performs negligently, does not do the work, or fails to understand or appreciate the import of the evidence. Of course there will be some questions that it would be improper for the advocate to ask. In that event, it is for the advocate to advise the client and, if necessary, to seek the direction of the judge before putting such questions. It should be for the judge to determine what questioning is permissible and appropriate.
That is why my Amendments 122 and 127 would provide for the cross-examination to be conducted subject to
“such directions as the Court may give to protect the witness from significant distress or to prevent the quality of the witness’s evidence from being diminished.”
Those are the considerations that the court has to have regard to in appointing the advocate. In most cases, I do not believe that directions such as that are likely to be necessary. The intimidation of a victim in these cases usually arises from the presence of the perpetrator as cross-examiner and/or the style of his cross-examination. Once a sensitive advocate is conducting the cross-examination, attuned to the vulnerability of the witness and the advocate’s duty to the court, the risk of intimidation is reduced.
However, if there are areas where the advocate advises that particular questions or lines of questioning cross the line, that is usually on the ground that such questions are irrelevant or unhelpful. The party will usually accept the advocate’s advice, but if there are lines of questioning where the party persists in wishing to pursue questions that the advocate regards as inappropriate, it should be for the judge, not the advocate, to decide whether the questions may be asked. There is no good reason for removing the advocate’s responsibility to the client, fundamentally undermining that responsibility.
I have had the opportunity to discuss this issue with the noble Lord, Lord Wolfson, and I am grateful to him for the attention he has given to it. I understand the Government’s position to be that where lawyers are appointed to conduct cross-examination in circumstances such as these, such lawyers should, in a way, be independent, so that they may decline to ask questions which the party whose interests they represent wishes to have put to the witness. They should be able to say to the client, “I’m not putting that”, without having to be answerable to the client for that decision. At first blush I see the force of that, but on analysis it is quite unfair, because the party represented is in fact denied true representation, and such an arrangement blurs the function of the judge and the advocate, to which I referred. In proceedings of all types, judges will frequently rule questions out of order. That is all part of the trial process and I see no basis for changing it here.
Amendments 123 and 128 raise questions of assistance by court-appointed advocates and legal representation in domestic abuse proceedings more generally. They make broadly two points. The first is that an appointment of an advocate for the limited purpose of conducting a single cross-examination is unlikely significantly to enhance either the fairness of the proceedings or the chance of their leading to a just outcome—a point touched on in the last group.
The answer to this difficulty is that the court should be able to ensure that the advocate will remain in place for as long as needed in the proceedings to assist both the parties and the court to deal with the case justly, in line with the overriding objective, having regard, in family cases, to dealing with it justly and to any welfare issues involved. One can imagine the frustration that judges would feel when, having had the assistance of an experienced court-appointed advocate for the cross-examination of the victim, the advocate’s role in the case is brought to an end and the judge is left with the parties in court in as conflictual a situation as they were before the proceedings started and with no help in resolving it.
My second point is that the only real, lasting and just way to ensure that domestic abuse proceedings are genuinely fair is to ensure that legal aid is available to both parties. My amendments would allow the Lord Chancellor to ensure that, where the court appoints a lawyer for a party, regulations can provide for legal aid to be granted to either or both the parties for the remainder of the proceedings, irrespective of the restrictions contained in the LASPO Act, which is now under review.
A more generous view of legal aid in domestic abuse proceedings, and of the evidential and financial thresholds to qualify for it, has long been called for by the legal professions and almost everyone who knows this field. The review is of course helpful, but we fear it may not go far enough. I hope it does and that the Minister helps it on its way, but meanwhile I urge the Government to accept the amendments, or at least to consider them at this stage, and to come back on Report with proposals that meet our concerns. I beg to move.
The noble Lord, Lord Naseby, who was due to speak next, is still in the debate in Grand Committee, so I call the Minister.
My Lords, I am grateful to the noble Lord, Lord Marks, for setting out the rationale for these amendments. As he said, I deferred my comments on the particular point of an advocate’s duty to this group because his amendments directly raise that issue. I am grateful to him for the discussions we had about this matter, as indeed we have had about several matters arising from the Bill.
Amendments 122 and 127 would have the same effect in relation to a qualified legal representative appointed by the court to conduct cross-examination in family and civil proceedings respectively. It is the Government’s intention that such a court-appointed representative is not responsible to any party. They are, in effect, appointed by and responsible to the court in relation to their conduct of the cross-examination, having regard to guidance issued by the Lord Chancellor in connection with this role under what we intend should become Section 31Y(1) of the Matrimonial and Family Proceedings Act 1984.
As I think the noble Lord, Lord Marks, accepts, the amendments would alter fundamentally the representative’s role by making them responsible to the party who has been prohibited from carrying out such cross-examination. While the tabled amendments contain safeguards to counter the resulting tension between being responsible to the prohibited party on the one hand and needing to protect domestic abuse victims on the other by requiring the representative to have regard to protective directions issued by the judge, this does not affect the Government’s view that, as a matter of principle, the representative who has been appointed by the court should not be responsible to the party. That is particularly the case when that party could have, but has not, appointed his own lawyer. Had he done so, a court-appointed lawyer would not have been required and the lawyer appointed by him would have owed him a duty.
Therefore, the Government do not want this to become a client-lawyer relationship. The advocate is appointed for only one function: to ensure that the best evidence is obtained fairly from the witness in cases where the party is prohibited from conducting the cross-examination by themselves. Altering this and introducing such a relationship between the party and the advocate would, in the Government’s view, be a mistake.
The rules pertaining to the advocate scheme will be set out in statutory guidance and relevant procedural rules. Consistent with what I have been explaining to the Committee, the focus will be on ensuring that the function of a cross-examination is carried out—that the witness is questioned on the evidence that they have provided. Before these provisions are commenced, we will work with relevant stakeholders to develop and finalise statutory guidance, to be issued by the Lord Chancellor, for the appointed legal representatives to assist them in discharging this role. We will work with the appropriate rule committees to develop suitable court rules and practice directions to provide a clear structure and process for the operation of these provisions.
For those reasons, we take issue with the proposal in the amendment. Although I hear what the noble Lord, Lord Marks, said about SIAC and court-appointed advocates there, those are completely different circumstances and there is no read-across from SIAC to these provisions. The way that the Bill is set out reflects the Government’s deliberate intention and the clauses have been designed with this in mind.
The framework for the provision of publicly funded legal representation is set out in the LASPO Act. While I have listened carefully to the arguments made on this point, both today and in previous discussions, I do not agree that we should mix the different purposes of LASPO and these clauses as has been proposed. As anticipated by the noble Lord, Lord Marks, I refer to the review that I mentioned in the last debate.
Amendments 123 and 128 relate to the provision of legal aid. Legal aid is available for family cases where there is evidence of abuse, subject to domestic violence, or child abuse evidence requirements, and the relevant means and merits tests. We have expanded the acceptable forms of evidence and removed all time limits on providing that evidence. As I have said, we are also reviewing the means test. The Government are clear that victims of domestic abuse must have access to the help that they need, including to legal aid. The review of the means test is assessing the effectiveness with which that test protects access to justice. As I said in the last debate, we are specifically considering the experience of victims of domestic abuse. I will not repeat the other points I made in that context in the previous debate.
However, legal aid may also be available through the exceptional case funding scheme, where a failure to provide legal aid would breach or risk breaching the ECHR or retained enforceable EU rights. As I have explained, the Bill includes provisions that give the court a power, in specified circumstances, to appoint a publicly funded legal representative to conduct cross-examination. Where a prohibition on cross-examination applies, the court would first consider whether there are alternatives to cross-examination and invite the party to appoint a legal representative to conduct the cross-examination. In circumstances where the party does not, the court considers whether it is in the interests of justice so to appoint. Therefore, publicly funded legal representation is intended to conduct the cross-examination, but not to go beyond it. That is the sole reason why the advocate is appointed.
In that context, we must appreciate the need to protect against unnecessary expenditure of public funds or alteration of the legal aid regime without a wholesale and proper examination of the ramifications of doing so. In circumstances where this provision for a publicly funded advocate is put in the Bill for a limited and specific—if I can still use that phrase—purpose, it would be wrong in principle for us to conduct a review of legal aid provisions in Committee.
I fear that I may not have been able to persuade the noble Lord, as I was not able to persuade him earlier, of the merits of the Government’s approach. I am sure he will tell me that I have not, but I hope that I have been able to explain the Government’s approach and thinking on this issue. In those circumstances, I invite him to withdraw the amendment.
My Lords, unquestionably the Minister—to whom I am very grateful, for both his engagement and his considered and careful response—is right about one thing, which is that he has not convinced me of the difference in responsibility to the client between court-appointed advocates and normal lawyers. I accept that the role of legal representative would be altered by my amendments, and that is all to the good.
One point made by the Minister can be considered in a way that he did not. It is a precondition to the appointment of a legal representative by the court that the client or party who would have conducted the cross-examination, but for the prohibition, should have been given the opportunity to instruct his own lawyer. That lawyer would have had full responsibility to the client in the normal way—full duty of care, answerable in negligence and everything else. Generally, Members of the House will appreciate that the reason that that condition is not often met—in other words, the client does not appoint a lawyer—is lack of funds, not that he or she, usually he, does not wish for the lawyer to have a responsibility to the client. There is very little distinction to draw between the two cases, apart from the fact that the rich client gets the lawyer and the poor client has a court-appointed lawyer.
The Minister referred to the safeguards that I built into the amendments in their directions to the judge—
“such directions as the Court may give to protect the witness from significant distress or to prevent the quality of the witness’s evidence from being diminished.”
There may be further room for discussion about those directions and the guidelines within which cross-examination by a lawyer with a responsibility to the client could take place. I will carefully read the guidance that he mentions by which court-appointed lawyers will conduct their cross-examinations.
I completely reject the Minister’s explanation that SIAC involves different issues, as a justification for removing the responsibility. It is precisely because SIAC special advocates and their appointment involve different issues that the responsibility is removed. I explained that in opening. That point does not seem to have been treated with full understanding.
Of course I will withdraw this amendment to enable further review. The point about legal aid is one of accessibility. We know that there is a review under way and I accept that we should not be reviewing this question in Committee, but the problem is one of evidential and financial accessibility. Until both parties can be represented in domestic abuse proceedings, it is difficult to see that proper representation will be achieved. With those points, I beg leave to withdraw the amendment.
Amendment 122 withdrawn.
Amendment 123 not moved.
Clause 63, as amended, agreed.
My Lords, we now come to the group beginning with Amendment 124. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate and that anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Clause 64: Prohibition of cross-examination in person in civil proceedings
124: Clause 64, page 46, line 39, at end insert—
85EA Prohibition of cross-examination in person: victims of offences(1) In civil proceedings, no party to the proceedings who has been convicted of or given a caution for, or is charged with, a specified offence may cross-examine in person a witness who is the victim, or alleged victim, of that offence.(2) In civil proceedings, no party to the proceedings who is the victim, or alleged victim, of a specified offence may cross-examine in person a witness who has been convicted of or given a caution for, or is charged with, that offence.(3) Subsections (1) and (2) do not apply to a conviction or caution that is spent for the purposes of the Rehabilitation of Offenders Act 1974, unless evidence in relation to the conviction or caution is admissible in, or may be required in, the proceedings by virtue of section 7(2), (3) or (4) of that Act.(4) Cross-examination in breach of subsection (1) or (2) does not affect the validity of a decision of the court in the proceedings if the court was not aware of the conviction, caution or charge when the cross-examination took place.(5) In this section—“caution” means—(a) in the case of England and Wales—(i) a conditional caution given under section 22 of the Criminal Justice Act 2003,(ii) a youth conditional caution given under section 66A of the Crime and Disorder Act 1998, or(iii) any other caution given to a person in England and Wales in respect of an offence which, at the time the caution is given, the person has admitted;(b) in the case of Scotland, anything corresponding to a caution falling within paragraph (a) (however described) which is given to a person in respect of an offence under the law of Scotland;(c) in the case of Northern Ireland—(i) a conditional caution given under section 71 of the Justice Act (Northern Ireland) 2011, or(ii) any other caution given to a person in Northern Ireland in respect of an offence which, at the time the caution is given, the person has admitted;“conviction” means—(a) a conviction before a court in England and Wales, Scotland or Northern Ireland;(b) a conviction in service disciplinary proceedings (in England and Wales, Scotland, Northern Ireland, or elsewhere);(c) a finding in any criminal proceedings (including a finding linked with a finding of insanity) that the person concerned has committed an offence or done the act or made the omission charged;and “convicted” is to be read accordingly;“service disciplinary proceedings” means—(a) any proceedings (whether or not before a court) in respect of a service offence within the meaning of the Armed Forces Act 2006 (except proceedings before a civilian court within the meaning of that Act); (b) any proceedings under the Army Act 1955, the Air Force Act 1955, or the Naval Discipline Act 1957 (whether before a court-martial or before any other court or person authorised under any of those Acts to award a punishment in respect of an offence);(c) any proceedings before a Standing Civilian Court established under the Armed Forces Act 1976;“specified offence” means an offence which is specified, or of a description specified, in regulations made by the Lord Chancellor.(6) The following provisions (which deem a conviction of a person discharged not to be a conviction) do not apply for the purposes of this section to a conviction of a person for an offence in respect of which an order has been made discharging the person absolutely or conditionally—(a) section 14 of the Powers of Criminal Courts (Sentencing) Act 2000;(b) section 80 of the Sentencing Code;(c) section 187 of the Armed Forces Act 2006 or any corresponding earlier enactment.(7) For the purposes of this section “offence” includes an offence under a law that is no longer in force.85EB Prohibition of cross-examination in person: persons protected by injunctions etc(1) In civil proceedings, no party to the proceedings against whom an on-notice protective injunction is in force may cross-examine in person a witness who is protected by the injunction.(2) In civil proceedings, no party to the proceedings who is protected by an on-notice protective injunction may cross-examine in person a witness against whom the injunction is in force.(3) Cross-examination in breach of subsection (1) or (2) does not affect the validity of a decision of the court in the proceedings if the court was not aware of the protective injunction when the cross-examination took place.(4) In this section “protective injunction” means an order, injunction or interdict specified, or of a description specified, in regulations made by the Lord Chancellor.(5) For the purposes of this section, a protective injunction is an “on-notice” protective injunction if—(a) the court is satisfied that there has been a hearing at which the person against whom the protective injunction is in force asked, or could have asked, for the injunction to be set aside or varied; or(b) the protective injunction was made at a hearing of which the court is satisfied that both the person who applied for it and the person against whom it is in force had notice.85EC Prohibition of cross-examination in person: evidence of domestic abuse(1) In civil proceedings, where specified evidence is adduced that a person who is a witness has been the victim of domestic abuse carried out by a party to the proceedings, that party to the proceedings may not cross-examine the witness in person.(2) In civil proceedings, where specified evidence is adduced that a person who is a party to the proceedings has been the victim of domestic abuse carried out by a witness, that party may not cross-examine the witness in person.(3) In this section—“domestic abuse” has the meaning given by sections 1 and 3 of the Domestic Abuse Act 2021;“specified evidence” means evidence specified, or of a description specified, in regulations made by the Lord Chancellor. (4) Regulations under subsection (3) may provide that any evidence which satisfies the court that domestic abuse, or domestic abuse of a specified description, has occurred is specified evidence for the purposes of this section.”Member’s explanatory statement
This amendment and the other amendments to Clause 64 in the name of Lord Marks of Henley-on-Thames would allow for the same prohibition of direct cross-examination in civil proceedings as that which is available in family proceedings.
My Lords, could I have a moment? I apologise for the delay. Following so closely on from my last speech, it was difficult to see where we were.
Having spent some considerable time this afternoon introducing my amendments in groups 1 and 4, I will be relatively brief in introducing this group. The amendments are intended to extend to all civil cases the same protection from direct cross-examination by a party as is to be afforded in family cases to victims and vulnerable witnesses where certain conditions are met.
The reason for my relative brevity in this group is that the principles upon which I contended in the first group that special measures should be available on the same basis for civil proceedings as for family proceedings apply with equal force to the prohibition of direct cross-examination. Therefore, I will not dwell on them again, save to make the point once again that there is no justifiable distinction to be drawn between the trauma likely to be caused to the vulnerable by direct cross-examination in civil cases and such similar trauma as may arise in family cases.
However, because the proposals are complex, the amendment is long. Clause 63 inserts new Clauses 31Q to 31U into the Matrimonial and Family Proceedings Act 1984, which broadly prohibit direct cross-examination in family cases in a number of circumstances. First, direct cross-examination by someone convicted of, cautioned for or charged with a specified offence—that is, an offence specified by the Lord Chancellor—of a witness who is a victim or alleged victim of that offence is prohibited and, importantly, vice versa. No victim or alleged victim of such an offence may directly cross-examine the perpetrator or alleged perpetrator. Secondly, direct cross-examination by either party of the other is prohibited in cases where one party has obtained an on-notice protective injunction which is in force at the time of the proceedings. Thirdly, in cases where specified evidence—that is, evidence of a description specified by the Lord Chancellor in regulations—is adduced that a witness in proceedings has been the victim of domestic abuse carried out by a party to the proceedings, that party may not directly cross-examine that witness. Correspondingly, where there is such evidence that a party to proceedings has been the victim of domestic abuse carried out by a witness, that party may not directly cross-examine that witness.
What is important is that these three categories of cases involve a prohibition that is absolute. That offers vulnerable parties and witnesses an assurance that there will be no direct cross-examination that offends against those provisions in any of the cases covered by the prohibition.
Finally, in other cases not coming within the first three categories of cases, the court may prohibit—that is, it has the power to prohibit—direct cross-examination of any witness by a party if the court takes the view that two conditions are met. The first condition is that the quality of the witness’s evidence would be likely to be diminished if direct cross-examination were permitted and improved if it were prohibited. The second condition is that the witness’s distress would be more significant under direct cross-examination by the party than were the cross-examination differently conducted. Before prohibiting direct cross-examination in such a case, the court must be satisfied that the prohibition would not be contrary to the interests of justice.
So while those provisions may be complex, they are, by and large, admirable, as they cater effectively for all circumstances where a vulnerable witness is liable to be directly cross-examined by a party to proceedings of whom she or he is plainly frightened, or where a vulnerable party may be put in the position of being obliged to cross-examine directly a witness who has in the past abused that party. It goes without saying that such a cross-examiner may be afraid of the consequences of putting questions to such a witness. But the important point to note is that the first three categories of case involve mandatory prohibition.
In civil cases, however, for a reason that once again I do not understand, there is no provision in Clause 64 of the Bill for the mandatory prohibition of direct cross-examination in any of the categories 1 to 3—that is, commissioner-specified offences, a mandatory injunction in force protecting a party, or evidence of domestic abuse by a party against a witness or a witness against a party. All that remains is the fourth category of protection: the discretionary and conditional protection offered in family cases that do not fall into the first three categories.
Again, I understand from the Minister—who has been keen on this issue, as on all others, to listen to noble Lords and to help—that the Government’s position is that civil proceedings lack the intimacy of family proceedings and so do not merit the same protection for vulnerable witnesses and parties. However, as I said in the earlier group, there are literally thousands of civil cases—as the noble Lord recognised—of many types involving vulnerable parties and witnesses, and exactly the same considerations apply in those civil cases as apply in family cases. I would suggest that the parties and witnesses involved in them should be entitled to exactly the same protection from direct cross-examination on the same basis as in family cases. I mention before closing that this view is shared by the Civil Justice Council, the Law Society, Refuge, Women’s Aid, and many others.
I invite the Government to reconsider whether they wish to stick with this illogical distinction or to instead come back on Report having ironed it right out of the Bill. I beg to move.
Let me try an alternative technology—apologies, my Lords.
It is a great pleasure to follow the noble Lord, Lord Marks of Henley-on-Thames, for the second time, on this group of amendments, on which it is clear that he has done a great deal of work, and for which he deserves great thanks. I am simply here again as a support act for the reasons that I set out in the first group of amendments we addressed today. I think the arguments of justice and compassion are the same in this group of amendments as they were in that first group.
Sitting in many courtrooms over the years as a journalist, looking at the witnesses, you think about what the experience of being a witness is like. Earlier, I used the theoretical but eminently likely example of civil proceedings arising out of the collapse of a farm business that is also associated with domestic abuse. Later on, we will be talking about attempts to insert into the Bill an offence of non-fatal strangulation or suffocation. If we think about the actual experience of a witness who suffered that kind of assault and is then expected to stand in a courtroom and look in the eye the person responsible for that assault, and who is expected to look strong, stand tall and not seem what anyone might determine as shifty or uncertain, we can imagine the pressure that puts on such a witness.
In his answer to the first group of amendments, the Minister said, “Well, there is always judge’s discretion.” We know from many other debates in your Lordships’ House on the Bill that much domestic abuse is not fully reported. Indeed, we know that non-fatal strangulation and suffocation are sometimes recorded simply as common assault. Full information about what witnesses may have been subjected to may not be available and full reporting may not have happened, so it may not be open to a judge to be in the right place to rule on this. There should be an automatic protection available to witnesses who need it.
I will be brief because we have a great deal to do, but I believe that this is an important set of amendments, and I really hope that the Government will reconsider.
My Lords, I will start by making a general point about an issue that has been concerning me regarding the amendments on cross-examination on special measures. I apologise that I am not a lawyer, and if I have not quite have grasped what Committee stage is. I could have been jumping up to speak to all these amendments, so I have bundled my comments into one. I hope that will work. If I have got it wrong, I will not do it again.
I have found the noble Lord, Lord Paddick, hugely helpful and insightful throughout these Committee discussions, but something he said on Monday troubled me. He said:
“My Lords, for reasons of brevity and clarity, I will refer to the person to whom a domestic abuse protection notice is given as the ‘perpetrator’, rather than the ‘alleged perpetrator’ or ‘defendant’, and the person the notice seeks to protect as the ‘victim’, rather than the ‘complainant’, the ‘alleged victim’ or ‘plaintiff’.”
He went on to say:
“Clearly it will be for the court to decide, ultimately, whether they are in fact perpetrator and victim.”—[Official Report, 1/2/21; col. 1925.]
I understand entirely the noble Lord’s shorthand point, but I get anxious that sometimes, that sort of shorthand becomes the presumed fact or reality. That has been the case throughout Committee stage—nowhere more obviously than in the discussion about cross-examination —and I worry that that might prejudice justice and fairness in proceedings. As the noble Lord, Lord Paddick, rightly stated, it is up to the court ultimately to decide on guilt or innocence. It seems to me that cross-examination is a key part of making such weighty decisions. Testing the evidence thoroughly is very important, and demands for special measures for cross-examination should not compromise that.
We have already heard the way in which this can happen. We have heard the noble Lord, Lord Marks of Henley-on-Thames, say, in calling for special measures in an earlier set of amendments, that if a witness claims that they are frightened, this can be seen as sufficient reason to treat the alleged perpetrator as a perpetrator, and the alleged victim is secure in special measures. I just worry about a slippery slope. Because of the importance I place on cross-examination, in relation to the distinction between family courts and civil courts, I would actually prefer that a legal representative be appointed by both courts in order to facilitate the most objective and thorough cross-examination and to make sure that the evidence is objectively tested.
Turning to this set of amendments and why we need special measures in civil courts, I just do not feel that this requires legislation. Interchangeability between civil courts and family courts will confuse things. The arguments in favour that have been advanced so far emphasise the witness’s vulnerability as a reason to bring into law the demand for special measures in civil courts. I worry about that emphasis on vulnerability, because this might become an overly deterministic label. Civil cases may be intimate and then, as indeed the Bill already states, the judge has discretion to act in relation to special measures. But as we have heard, civil cases may involve a multitude of different issues that arose many years later and do not directly concern either abuse or alleged domestic abuse. There is a danger here that we will always see the witness as a vulnerable victim, even if the argument is over something relatively trivial, such as property—which, of course, is not always trivial.
Domestic abuse can be traumatising but it can be overcome, and often is. Are people for ever to be victims and assumed to be traumatised in all contexts in perpetuity, in every single instance of a civil case in the courts? Surely, that would be disempowering. Ironically, it can re-victimise people—often women—by for ever seeing them as victims in need of protection and special measures. Conversely, even if a perpetrator is convicted, are they always to be seen as an abuser in all contexts in perpetuity, in every instance where they might find themselves in a civil court? We have already heard how important it is not to dismiss spent convictions under the headings of “patterns of behaviour” or “repeat offenders”. We must ensure, therefore, that we hold our nerve in not compromising on our commitment to drawing a line, and to the humane aims of rehabilitation. To go back to where I started, I support the noble Lord, Lord Paddick, on that issue.
I will be rejecting these amendments. The civil courts are distinct and different. Treating people who may well have been victims as perpetually victims in all instances does them no favours whatsoever.
My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, has explained, these amendments intend to bring the provisions relating to prohibition of cross-examination in civil courts into line with the provisions on the same measure in family courts. As the noble Lord explained, we have covered some of the questions of principle already in earlier groups. He indicated that he was therefore going to be brief—as he indeed was—and I hope that both he and the Committee will not take it as any disrespect if I am equally brief in response, given that we have canvassed the points of principle already.
The noble Baroness, Lady Bennett of Manor Castle, described herself as a “support act”, an appellation with which I respectfully but firmly disagree. She spoke eloquently in an earlier group of her personal experience of seeing how court procedures operate in cases involving domestic abuse, and her contribution to this short debate has been equally valuable. I hope that the noble Baroness, Lady Fox of Buckley, will forgive me if I gently point out to her that she should not apologise for not being a lawyer. What is apparently, based on my short time here, a repeated cause for apology in this House is generally regarded as a badge of honour everywhere else.
Turning to the substance, let me explain that the approach we have taken in civil cases differs from that taken in family proceedings for good reasons. The clause dealing with banning cross-examination of vulnerable parties or witnesses stems from the report by the Civil Justice Council, to which the noble Lord, Lord Marks, also referred, and which I spoke about when commenting on the amendments to Clause 62.
The council recommended that the prohibition of cross-examination by a self-represented party should be extended to cover civil proceedings, thereby ensuring some parity with the criminal and family jurisdictions. Importantly, however, the Civil Justice Council cautioned that the ban or prohibition should not be absolute: rather, it should be left to the court’s discretion, given that, as I explained in an earlier group, the civil and family jurisdictions are very different as regards the types of cases, with the civil jurisdiction having a much wider range. As I also said earlier, those cases can have a much broader range of circumstances, where there is no prior close connection between the parties, as there would generally be in the family courts. We have therefore tailored our approach to allow for those differences, which is why the provisions in respect of cross-examination in the civil jurisdiction differ from those in family proceedings. I hope that that explains my thinking to the noble Lord, Lord Marks.
In response to points made by the noble Baronesses, Lady Bennett of Manor Castle and Lady Fox of Buckley, I say it is important that two things are fundamental. First, it is important that protection is available to all witnesses who need it—this was the point made by the noble Baroness, Lady Bennett. In response to the point of the noble Baroness, Lady Fox, the court will of course look at all circumstances in that regard. The overriding concern is to ensure that justice is done in the particular case, which is why leaving it to the discretion of the judge in an individual case to decide when a ban is necessary is based on an unlimited range of factors, including, obviously, the views of parties to the proceedings, any past convictions or the behaviour of parties during the trial. That is how we suggest this matter is best resolved.
Having said all that, I respectfully say that the noble Lord, Lord Marks, has put forward, as one would expect from him, a cogent and well-argued case for his amendment. As such, while we consider that the approach taken in the Bill in relation to the civil courts is well founded, and certainly not—to use a word adopted earlier in this debate—illogical, I hear the arguments he put forward and undertake to consider these amendments further ahead of Report. I will continue to listen with interest to any arguments made by him or others in this regard. Therefore, given this undertaking, I hope that the noble Lord will be content to withdraw his amendment.
My Lords, once again, I am grateful to all noble Lords who have spoken in this debate. I certainly agree with the noble Lord, Lord Wolfson, that the noble Baroness, Lady Bennett of Manor Castle, has proved herself much more than a support act. I say to her and the noble Baroness, Lady Fox of Buckley, that there is a crying need in these legal debates for experience from outside the law to inform our debates and bring the lawyers down to earth.
Many noble Lords may well have formed the view that the differences between the noble Lord, Lord Wolfson, and me are arcane legal arguments, in some senses—but we can only have those arcane arguments in a relevant way if we have real-world experiences to back them up. Some of these will be ours, but the noble Baroness, Lady Bennett of Manor Castle, not only clearly demonstrated how the principles that apply to cross-examination in civil proceedings also apply in family proceedings; she also graphically described the personal experience of witnesses in court proceedings. I challenge anyone to explain why that experience differs between the two types of proceeding, where witnesses are, or are liable to be, victims of domestic abuse and are vulnerable.
Although I greatly valued the contribution of the noble Baroness, Lady Fox of Buckley, I do not agree with her that this legislation or these and other amendments overstate the significance of vulnerability or trauma, when the evidence is serious and extensive of how deep vulnerability can go, how serious the trauma can be and how long-lasting it can be as a result of domestic abuse. That is the reason why the Government have brought this Bill; it is why it is widely welcomed around the House and the reason for the protections that are afforded to witnesses and parties in court proceedings.
I come to the noble Lord, Lord Wolfson, who frankly accepts the differences and parallels between us in respect of cross-examination in cases of special measures. I do not accept that a discretionary system in relation to the prohibition of cross-examination is an acceptable substitute. One of the principal reasons for this is that a party or witness has no assurance that there will be a prohibition in a discretionary case. She—or, in some cases, he—is totally reliant on judicial discretion having regard, as the Minister says, to all sorts of other factors, including previous convictions and all the circumstances of the case, in relation to knowing whether a prohibition of cross-examination will be extended. This means that such a witness or party is exposed to the risk that there will be direct cross- examination, which they may well be unable to face.
I am very grateful to the Minister for his undertaking that he will consider these amendments further; I know that that undertaking is given with every intention that he will do so. I and others remain completely open to discussing these amendments with him and refining them if necessary, but we hold the basic belief that vulnerable witnesses need protection from direct cross-examination on exactly the same basis in civil cases as is to be extended in family cases. Saying that, I beg leave to withdraw Amendment 124.
Amendment 124 withdrawn.
Amendments 125 to 129 not moved.
Clause 64 agreed.
My Lords, we now come to the group beginning with Amendment 130. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
130: After Clause 64, insert the following new Clause—
“Proceedings under the Children Act 1989
(1) Part I of the Children Act 1989 is amended as follows.(2) In section 1 (welfare of the child) after subsection (2B) insert—“(2C) Subsection (2A) shall not apply in relation to a parent where there has been domestic abuse which has affected the child or other parent.(2D) Evidence of domestic abuse may be provided in one or more of the forms set out in regulation 33(2) of the Civil Legal Aid (Procedure) Regulations 2012.”(3) Part II of the Children Act 1989 is amended as follows.(4) In section 9 (restrictions on making section 8 orders) after subsection (7) insert—“(8) No court shall make a section 8 order for a child to spend unsupervised time with or have unsupervised contact with a parent who is—(a) awaiting trial, or on bail for, a domestic abuse offence, or(b) involved in ongoing criminal proceedings for a domestic abuse offence.(8A) In subsection (8)—“unsupervised” means where a court approved third party is not present at all times during contact with the parent to ensure the physical safety and emotional wellbeing of a child;“domestic abuse offence” means an offence which the Crown Prosecution Service alleges to have involved domestic abuse.”” Member’s explanatory statement
This new Clause seeks to change the presumption that parental involvement furthers the child’s welfare when there has been domestic abuse. It also prohibits unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences, or where there are ongoing criminal proceedings for domestic abuse.
Amendment 130 would include in the Bill a new clause that would disapply the presumption that parental involvement furthers a child’s welfare in cases where there has been domestic abuse. The new clause would also preclude unsupervised contact for a parent awaiting trial, or on bail, for domestic abuse offences or where there are ongoing criminal proceedings for domestic abuse. I thank the noble Baronesses, Lady Gardner of Parkes, Lady Jones of Moulsecoomb and Lady Meacher, for adding their names to this amendment. Amendment 130A, in the name of the noble Baroness, Lady Jones of Moulsecoomb, would further extend prohibitions on unsupervised contact, and I look forward to hearing her speak to her amendment.
The purpose of the new clause set out in Amendment 130 is to act to protect the lives of children who live with domestic abuse where the cases end up in the family court. Between 2006 and 2019, at least 21 children were killed during contact with fathers who were perpetrators of domestic abuse.
The Children Act 1989, as amended by the Children and Families Act 2014, states that the family court is
“to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.”
Concerns were expressed at that time that this would strengthen the likelihood of a “contact at all costs” approach. Although judicial guidance makes it clear that:
“The court must in every case consider carefully whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm”,
this is not as strong as the legal presumption in the Children Act 1989.
The “pro-contact” presumption, even where there has been domestic abuse, can lead to unsafe contact decisions. The Women’s Aid Nineteen Child Homicides report documents the cases of 19 children in 12 families who were killed in circumstances relating to child contact by a father who was a perpetrator of domestic abuse. Women’s Aid also found that in the cases where contact was arranged through the courts, abuse of the mother was often seen as a separate issue from the child’s safety and well-being, rather than the two being intrinsically linked. Research published in 2017 by Cafcass, the Children and Family Court Advisory and Support Service, in partnership with Women’s Aid, showed that more than two-thirds of the 216 child contact cases in the sample involved allegations of domestic abuse. Yet in 23% of these cases unsupervised contact was ordered at the first hearing.
In July last year the Ministry of Justice published the final report of its expert panel, Assessing Risk of Harm to Children and Parents in Private Law Children Cases. The expert panel said:
“Although some professionals supported the presumption of parental involvement in section 1(2A) of the Children Act 1989, the panel received sufficient evidence to conclude that in the cohort of cases described in submissions the presumption further reinforces the pro-contact culture and detracts from the court’s focus on the child’s individual welfare and safety”.
Continuing, the report said:
“The panel is clear, however, that the presumption should not remain in its present form … We recommend that the presumption of parental involvement be reviewed urgently in order to address its detrimental effects.”
Such a review was not announced by the Government until five months later, in November 2020, and is not due to report until the summer, as I understand it. There is then likely to be a further delay in implementing any outcomes arising from the review—probably a lengthy delay if further legislation is required.
Amendment 130, pending the outcome of the review but in line with the expert panel finding that the presumption should not remain in its present form, simply states that the presumption in the Children and Families Act that the welfare of the child is best served by the involvement of both parents does not apply in cases where there are allegations, findings or admissions of domestic abuse to the child or other parent. The welfare principle would then be applied by the court to ensure that any orders made, whatever they might prove to be, are in the child’s best interests and not influenced by a presumption that the welfare of the child is best served by the involvement of both parents. That would help protect children caught up in family court proceedings from harm.
The amendment does not prevent a court coming to the conclusion, in cases where there has been or appears to have been domestic abuse, that involvement with both parents nevertheless still best serves the welfare of the child in the specific instance of the case they are hearing. But the court would not have to start off with a statutory presumption that that that would be the case.
Amendment 130 is very much rooted in the welfare of the child and simply seeks to ensure that, in cases involving domestic abuse, the assessment of the child’s welfare and what is in their best interests is the most fundamental and crucial consideration. This amendment has the support of the Victims’ Commissioner. The Victims’ Commissioner told the Commons committee considering this Bill that one of her major concerns was that the Bill does not
“Create a presumption of no contact or parental responsibility where there has been a conviction, restraining order, findings by the Family Court.”
She also said that she was
“very troubled by the presumption of shared parenting that seems to trump practically everything else in the family court.”—[Official Report, Commons, Domestic Abuse Bill Committee, 4/6/20; col. 63.]
The Victims’ Commissioner has also written to the Home Secretary, saying that she saw the need to prohibit unsupervised contact between a parent on bail for domestic abuse-related offences for which criminal proceedings are ongoing. The designate domestic abuse commissioner also supports this amendment as one she considers essential to ensure robust and inclusive support for survivors of domestic abuse. The question now is whether the Government will support this amendment. I beg to move Amendment 130.
Amendment 130A (to Amendment 130)
130A: After Clause 64, in subsection (4) after inserted text (8)(b) insert—
“(c) pending a fact finding hearing or has been found to have committed domestic abuse in a previous fact-finding hearing; orwho has a criminal conviction for a domestic abuse offence.”Member’s explanatory statement
This new Clause seeks to change the presumption that parental involvement furthers the child’s welfare when there has been domestic abuse. It also prohibits unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences, or where there are ongoing criminal proceedings for domestic abuse.
My Lords, some of the earlier amendments to the Bill have been about removing stress from survivors, particularly when they are in court. I support Amendment 130 moved by the noble Lord, Lord Rosser, and my amendment is a friendly amendment. Our amendments are about removing stress from children, which I think noble Lords will agree is a very noble cause. As other noble Lords have found, we have been contacted by an incredible number of people and organisations, who have explained that this is a problem and it needs fixing. The presumption of contact in certain family law cases involving domestic abuse needs to be rethought. Obviously, it is incredibly important in many family situations to help children maintain contact with both parents, but in circumstances of domestic abuse this can be precisely the opposite of what needs to happen and can result in disaster.
The whole point of family courts is that they are supposed to be about the welfare of the child, but it seems that too often a court maintains contact in situations that are obviously very harmful to children. The courts apply this presumption of contact too rigidly. Rather than acting as a presumption which can be rebutted, it has become more of an overriding obsession. It has been described as creating a “culture of contact” which pervades the entire family court system and then excludes other aspects of a child’s welfare, including listening to the child’s wishes and protecting them from abuse.
This culture of contact has led to serious tragedies. As the noble Lord, Lord Rosser, mentioned the Women’s Aid report Nineteen Child Homicides documents 19 children in 12 families who were killed at the hands of abusive fathers during unsupervised contact between the years 2005 and 2015. One example of a tragedy was Darren Sykes, who murdered his two children and took his own life by setting fire to his attic. Despite a consistent history of domestic abuse, and against the wishes of the two little boys, the pro-contact culture of the family courts led to Sykes being granted unsupervised contact with the children for five hours each week. This culminated in him taking the boys up to the attic, barricading the three of them in, and setting multiple fires. Mortally wounded, one of the boy’s last words were spoken to a firefighter. He said, “My dad did this, and he did it on purpose.”
Each one of these deaths is a preventable tragedy. Your Lordships have a duty, through the Bill, to prevent each one of them happening again to another child. My amendment to Amendment 130 has a straight- forward purpose: to ensure that unsupervised contact is not granted where the court has found that domestic abuse has taken place, or where there is a relevant criminal conviction. It should be put beyond doubt that a parent cannot have unsupervised contact when they have been proven to be a domestic abuser. This is a simple proposition: too many children are murdered by parents who are known—and who have been shown —to be abusive. We must protect these children and say, “Never again”.
My Lords, I am very supportive of the Bill. The mental and physical damage of domestic abuse goes far beyond the pain and anguish caused at the time it occurs and stays with victims and their families for many years, if not for the rest of their lives. It is important that we do all we can in this legislation to help victims to get out of abusive relationships and rebuild their lives.
I will speak on Amendments 130 and 130A and propose to add parental alienation to the definition of abusive behaviour and, therefore, every provision of the Bill. I fear that the amendments may undo much of the work which the Bill seeks to do to protect victims of domestic abuse and swing the pendulum of control back to the perpetrator of that abuse, rather than the victim, if they make counter-allegations.
Without meaning to sound flippant I say that, at the extreme, any parent going through a break-up or divorce could find themselves accused of domestic abuse under this Act. That is not what the Bill is intended for. I wonder if the concerns of noble Lords on these amendments are already covered by the combination of Clause 1(3)(e) and (5). Alternatively, if they had a specific instance in mind, they should look at where that can be catered for in specific clauses, not by a wholesale change to the entire Act in this way.
The noble Lord, Lord Marks, has made it clear that direct cross-examination can cause great distress. It is important to help all people in vulnerable situations. I can see these amendments having massive unintended consequences if they are included. I urge the House not to accept either of these changes, so as to maintain the integrity of the Act.
My Lords, I will speak principally to Amendment 130 in the name of the noble Lord, Lord Rosser. Parental contact is, of course, enormously important. Continued contact can be very dangerous both mentally and physically, but it can be beneficial. To make the right decision for each family is of the utmost importance, and sometimes people get it wrong. However, my support for the amendment is nuanced. I support proposed new subsection (4) but I add that a parent of either sex who has been found to exercise controlling or coercive behaviour should probably not have continued contact with the children. Such contact is likely to be used to continue controlling the partner. The child becomes a pawn in the fight with the partner.
I know an appalling example of this. Years after a divorce between an American dad and a British mum, the mother is required to pay to fly to the US five or six times a year to take her child to the father for contact. Because she cannot trust the father to allow the child to come back, the mother keeps the passport. This means that, after the week’s contact, she has to fly to the US and pick up the child. Even Covid was not accepted as a reason not to go, and the mother caught it on the plane back to the UK over Christmas. The child does not want to go to see her father but is being used as a pawn.
I accept that anecdotal evidence is of limited value; I am a great believer in research. However, I ask that, before Report, the presumption of parental contact be considered in the context of controlling or coercive behaviour and the results of relevant research on the issue.
The first part of the amendment assumes that the presumption of parental contact should not apply in relation to a parent where domestic abuse has affected the child or other parent. I support the implication that parental contact should be very carefully assessed in these circumstances, but the wording of the amendment could be nuanced before Report. I fully accept that it should not be presumed that parental contact would apply in these circumstances.
In my experience, even when domestic abuse against children as well as a partner has occurred, this should not necessarily rule out parental contact. This depends on the nature of the abuse, the ages and level of understanding of the children, the presence or absence of controlling behaviour—a key factor in the situation—and an overall assessment of the potential harms and benefits involved. I also broadly support the amendment in the name of the noble Baroness, Lady Jones, but I would qualify it on Report.
While again recognising the limited value of individual cases, I will illustrate with a personal experience my point that very serious domestic abuse and continued parental contact may be compatible and, indeed, helpful. The case I will cite involves abuse of children by a mother. As with abuse by a father, abuse by a mother can be extraordinarily damaging, and it can take the authorities a very long time to recognise it.
A male member of my family and his children suffered what can be described only as severe trauma over several years. It took Cafcass and the judicial system two and a half years to recognise that the person who was lying about her abuse of her children, and making up allegations, was in fact the mother. The authorities assumed at that time that mothers did not abuse their children. The very little eight year-old girl climbed up on a chair and unbolted the front door—she was always locked into her mother’s house—ran to the bus stop, managed to get on the right bus and get off at the right stop, and ran one mile through Tottenham to her dad’s house. Only then did the matter go back to court and the judge recognised that he and everyone else involved had made an appalling mistake. Having required the children to live with their mother for two and a half years, the lead social worker in the case finally made it clear that the children should only visit her but certainly not live with her.
The children have lived with their father ever since, but all have suffered from various levels of PTSD. They have had years of therapy, paid for the father, not by the state. Despite the abuse of the children and the damage to them, this father has encouraged contact with the mother. Once the children were safely placed with their father, he felt it was important for them to accept that their mum could not provide parenting but that she was, nevertheless, herself a victim. Her behaviour very much reflected her own experiences as a child. The children know that they cannot expect normal parenting, but they understand her mental state and therefore see her as a person with her own problems. In my view, they have benefited very much from the fact that they are not left with only the horrendous memories of their abuse as small children.
My personal experience, while only anecdotal, explains why I feel so strongly about the issue of parental contact. It is very complex yet hugely important. In conclusion, I support both these amendments but would like to see them adjusted before Report.
My Lords, throughout the preparation for proceedings on this Bill, I have been extremely impressed, and greatly assisted, by the work of Women’s Aid, the Victims’ Commissioner for London, the Victims’ Commissioner and many others who have worked tirelessly, with the grain of this Bill, to improve the response of us all, and the courts, to the scourge that is domestic abuse. However, with this amendment and the amendment to it, which many of them support, I have a number of concerns.
The amendment, as we have heard, seeks to disapply the presumption in Section 1(2A) of the Children Act 1989. I turn for a moment to two provisions of that widely admired legislation. As is well known, Section 1 provides:
“When a court determines any question with respect to … the upbringing of a child … the child’s welfare shall be the court’s paramount consideration.”
That overriding requirement lies at the heart of the Act, and judges and lawyers have long regarded it as the central canon of our law relating to children. The presumption under Section 1(2A) requires courts hearing proceedings, which include making orders about where children are to live and orders for contact between a child and their parents, to presume that
“unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare.”
That presumption reflects a wealth of evidence not mentioned so far in this debate, but it is generally in a child’s interest to have a relationship with each of their parents. However, that presumption is rebuttable, hence the words
“unless the contrary is shown.”
It is often the case that judges will make a decision, which generally they do not like to make but do, that given a history of domestic abuse by one parent of the other and the effect upon the child, contact with one parent will be withheld. The noble Lord, Lord Rosser, confirmed that the statutory guidance for judges ensures that they carefully consider whether contact is justified or should be withheld.
I do not suggest for a moment that all contact is safe. As many have said, cases of abuse and very serious abuse can arise during and around occasions on which contact takes place, as it can on other occasions. But I disagree with the noble Baroness, Lady Jones of Moulsecoomb, which I rarely do on these issues, that the presumption is treated by the courts as overriding. I agree with the point made by the noble Baroness, Lady Meacher, that different solutions may be right for different families. The question for the House is where that leaves us. My concern is that there will be cases where this amendment runs the risk of putting the interests of children behind the interests of parents.
However, the removal of the presumption in this subsection is not the only reason I am concerned about this amendment and the amendment to it. Subsection (4) of the proposed new clause would forbid the court from making any order for unsupervised access with a parent who is
“awaiting trial, or on bail for, a domestic abuse offence, or … involved in ongoing criminal proceedings for a domestic abuse offence.”
That prohibition would be absolute, and I think it would be wrong. It would forbid a child from having unsupervised contact with a parent which may, in particular circumstances, work against the best interests of the child, contravening the paramountcy principle I mentioned. It should be for the judges to determine what the circumstances in each case demand. The noble Baroness, Lady Meacher, pointed out that circumstances differ and the extent to which they do.
Furthermore, the amendment is not limited to cases involving domestic abuse against a parent of the child concerned. Section 9(8) of the Children Act referred to in subsection (4) of the proposed new clause is concerned with allegations of “a domestic abuse offence.” The subsection would prohibit, for example, a court making an order for unsupervised contact between a father and his older child because the father had been accused of a domestic abuse offence committed against a new partner who was not the child’s mother, irrespective of any relationship between the new partner and the child. Such a prohibition would be grossly unjust, depriving the child of his or her relationship with the father. It would again run entirely counter to the paramountcy principle.
What is more, this amendment only requires, before unsupervised contact is prohibited, that allegations have been made. They need not have been established; they might be wrong or malicious. The noble Baroness, Lady Meacher, mentioned a case where they were indeed wrong. The noble Baroness, Lady Gardner of Parkes, mentioned a case where allegations might be malicious. This provision runs the risk of inviting unwarranted allegations of abuse calculated to destroy a child’s relationship with a parent against whom nothing has been found, on the basis of allegations that may be irrelevant to the welfare of the child. A family judge would determine whether such allegations of abuse were made out and would do so on the basis of evidence adduced before the court, not on the basis of unproved allegations. This amendment involves, to that extent, a denial of justice and a denial of justice to children.
I firmly believe that judicial discretion should not be withdrawn in this sensitive area of family life. There are many cases where abusive behaviour by one parent towards another entirely justifies the withdrawal of contact between the abusive parent and the child. But there are other cases, as the noble Baroness, Lady Meacher, recognised, where withdrawing contact is inimical to the welfare of the child.
Improving the way in which family courts understand and respond to domestic abuse of all sorts is of the greatest importance, but this amendment is too prescriptive in its statement and its outcome. Removing the power of judges to act in the best interests of the child, on whose behalf they daily make very difficult decisions, is not the way to achieve the aims of this Bill.
My Lords, at the outset, I was attracted to these amendments. As a lay person, listening to the noble Lord, Lord Rosser, with his usual measured way of introducing amendments, and the noble Baroness, Lady Jones of Moulsecoomb, I found the arguments compelling. But as I listened, I thought that although there is sometimes merit in having us lay people who have no knowledge of the law involved—as was mentioned in the previous group—the arguments showed why it is so important to have people who have experience with what the laws we are making would mean in practice in the courts. Having heard the arguments of the noble Lord, Lord Marks, in particular, and the noble Baronesses, Lady Meacher and Lady Gardner of Parkes, and believing that the intentions behind these amendments are worthy, because it seems self-evident that this must be done, I am not convinced that this way of dealing with the issue will be beneficial for the people we want to protect—the children.
Of course, those chilling statistics of where children have been killed by an abusive parent, after this has been discovered, are very concerning, but I am not necessarily sure that passing any of these amendments would completely rule it out. I think we all agree, those of us lucky enough to have happy families and know other happy families, what the harm would be for those who need it and that parental involvement is paramount.
Whereas I was very happy to support it—I will be interested to hear other speakers, notably the noble and learned Baroness, Lady Butler-Sloss, who I know has extensive experience, and my noble friend the Minister—perhaps we can look at nuance, as the noble Baroness, Lady Meacher, said; some way of amending or making sure that, in the instructions to the courts, the presumption that they can disapply is recognised a bit more formally.
My Lords, my quick message to Hansard is that they can tear up the note I sent earlier. In fact, the noble Lord, Lord Randall of Uxbridge, has just made the speech I decided to make having listened to the debate. I do not propose to repeat what he said, save for the fact that the general thrust of his conclusion as a lay person is the same one I have come to. I read the briefings, considered the issue and listened to my noble friend Lord Rosser; I was then surprised when listening to the noble Baroness, Lady Gardner. As the debate went on, I started to have second thoughts. This is the benefit of Committee—that is what it is for. The idea can be taken away and reworked.
I will raise one point from one of the briefings, from Support Not Separation and Women Against Rape, which quoted the harm review. They said they found a pattern of bias in the court professionals which gave weight to the views of the child who wanted contact but dismissed the views of the child who did not. That is extremely worrying.
However, having come to the same conclusion as the noble Lord, Lord Randall, I will leave it there.
My Lords, I view this amendment, which is in two parts, with some concern. To a very large extent, I share the views of the noble Lord, Lord Marks of Henley-on-Thames, and those of the noble Lord, Lord Randall of Uxbridge.
When I was President of the Family Division—and throughout the 35 years I was a family judge—I heard a great many cases which had some element of domestic abuse. I do not like presumptions, if they can be avoided. I remember that, when the amended Section 1(2A) was introduced while I was a Member of this House, I was very dubious about it, because I do not like presumptions. The important point of the Children Act is Section 1, which says that
“the child’s welfare shall be the court’s paramount consideration.”
Any family judge or magistrate has to look at all the circumstances and decide whether it is appropriate, in those circumstances, for both parents to have a relationship with the child after their separation. In normal circumstances, one takes it for granted that both parents will have a relationship, but there will be cases in which there should not be one.
I am not quite so concerned about the first part of Amendment 130, because it says that subsection (2A) shall not apply in situations which have affected the child. Even so, it should be a matter where the welfare of the child is paramount and the judge exercises his or her discretion, having come to a conclusion based on all the facts.
I am particularly opposed to the second part of Amendment 130: the restrictions on Section 9. This is, first, because it does not require domestic abuse to have affected the child. Other points have been made on this by the noble Lord, Lord Marks, with which I entirely agree, but I can see circumstances where a child was for one reason or another—possibly at boarding school or away on holiday—not present when there was domestic abuse between the parents, and the child had no knowledge of it. In those circumstances, it would not be inappropriate for the child to have unsupervised contact with a parent who had done absolutely nothing wrong to the child but who may have been involved in a single or unusual circumstance which could be classified as domestic abuse of the other parent.
This draconian proposal that Section 9 be restricted is inappropriate, although I entirely understand and share the concerns about the parents—mothers as well as fathers—who have been given unsupervised contact where there are issues of domestic abuse which are true, where the children are then killed. That is extremely sad; there should be adequate training of all judges and/or magistrates trying family cases. It may be more important to get the Ministry of Justice to discuss with the Judicial College and the President of the Family Division whether the training of judges and magistrates in issues of domestic abuse, to which I shall refer on the next group, should be improved. I will later refer to a useful case in the Court of Appeal which has been discussing this.
I am completely opposed to the second part of Amendment 130. I am sympathetic to what lies behind it, but I believe there should be a broader consideration of whether, where the welfare of the children must be paramount, there should be any presumptions of any sort—but certainly not in the way this has been drafted.
In place of the noble Baroness, Lady Andrews, I call the noble Baroness, Lady Altmann.
My Lords, I once again congratulate the Government on bringing forward this important Bill and on the constructive and helpful manner in which my noble friends the Ministers have all engaged with so many noble Lords to try to ensure that this legislation achieves its aim of protecting victims of domestic abuse.
I am speaking to Amendments 130 and 130A because I share the concerns expressed by other noble Lords that they may unintentionally undermine the aims of the Bill. I recognise the rationale and thinking behind them and the desire to protect children, who can be innocent victims in these awful cases, but I agree with the noble Baroness, Lady Meacher, and so many others that contact with both parents is normally in the long-term interests of children. That is why I supported amendments at an earlier stage to ensure that parental alienation is taken seriously, rather than being left to statutory guidance or, as these amendments might suggest, removed from the guidance as well.
The current legal position reflects huge amounts of evidence that children benefit from contact with both parents and that significant psychological damage can be caused by loss of such contact. I therefore have serious concerns that removing the presumption of contact could cause more harm to more children than this amendment is designed to prevent. Of course, there will be dreadful cases in which an abusive parent will perpetrate harm on the children, but that is extremely rare. As the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Marks, the noble Baroness, Lady Meacher, the noble Lord, Lord Rosser, and others have explained, the family courts already have the power, under the Children Act 1989, to decide against contact in individual cases where it is judged to be appropriate for that case. The Act presumes only that contact with both parents will be in the child’s interests unless the contrary is shown. Should the contrary indeed be shown, rather than merely alleged, and should abuse be proven, then those are clearly the exceptional cases in which a court would hardly be likely to grant access.
Do we not have a principle of ensuring that someone is proven guilty before being deprived of such important rights? Amendment 130 would require that, even where there are allegations of domestic abuse, whether it is against the child or a parent, the deprivation of access to children would still hold. That clearly invites the risk of unfounded allegations being made by one parent who wishes to prevent their ex-partner seeing the children, potentially as a way in which to punish the other parent or for other reasons. That could lead to the other parent being accused, for example, of emotional or psychological abuse, for which there may be no visible signs and which, indeed, may subsequently be disproved. However, the amendment would mean that the courts would deny access to the person who is accused before any judicial opportunity to find that parent innocent.
I echo the words of my noble friend Lady Gardner of Parkes, who mentioned parental alienation, which we discussed in an earlier group, and those of the noble Baroness, Lady Meacher, and others: these cases can be hugely complex. We have to trust the courts to apply the expertise necessary in such cases, which are the vast majority. The presumption of contact seems to have so much weight of evidence behind it that it would be extremely unwise and damaging to many children if the amendment, and Amendment 130A, were accepted.
We do not want the Bill to damage children in a misguided attempt to help them. It does not seem to fit with natural justice to impose automatic sanctions without the normal judicial oversight or a conviction to substantiate claims. I recognise the intention of these amendments and I share the desire to prevent any children being severely harmed or even unwittingly put into the hands of an abuser who may kill them. However, I hope that Amendments 130 and 130A will not form part of the Bill because the alternative, whereby children are denied access to their parent, and the other parent is denied access to their children, on the basis of unsubstantiated and potentially false claims, could lead to substantial harm and, indeed, the suicide of a parent or children, who often suffer terribly if they are unable to have contact with a parent.
My Lords, there has been a varied response to the Bill. What has come out of it is that nothing is as simple as it might appear in situations of the kind described. The somewhat harrowing example given by the noble Baroness, Lady Meacher, underlines that.
As we have heard, Amendments 130 and 130A seek to change the presumption that it is in the welfare of a child to have unsupervised contact when one parent has either a domestic abuse conviction or court proceedings against them. The noble and learned Baroness, Lady Butler-Sloss, told us that she does not like presumptions and that we need to consider all the circumstances—that has certainly come out of this afternoon’s debate.
As we know, the presumption of the courts is that it is in the welfare of the child for both parents to have access now, everything else being equal. However, when one parent is accused of abusing or has abused the other parent or the child, or they are subject to a Crown prosecution case, everything is most decidedly not equal. We have discussed enough times during the course of the Bill just how difficult and stressful a domestic abuse situation can be for a child, who can be used and abused as a pawn between warring partners. And it can get far, far worse than that.
Several noble Lords used statistics to back up this argument. Mine come from the charity Refuge, which, in partnership with a Sunday Mirror journalist, conducted an investigation which found that, between 2004 and 2019, 63 children were killed at the hands of a domestic abuse perpetrator who had contact with their children after being convicted of a serious criminal offence. Refuge reports that the actual figures of child harm are even higher, with many children dying from other causes, such as neglect. This is the danger of under- estimating the risk that perpetrators can pose to their children. It does not apply to all perpetrators, of course; many who have committed domestic abuse against their partners are different altogether with the children—a point another noble Lord made.
We should also consider how previous matters are taken into consideration. In particular, my colleague and noble friend Lord Marks gave an example of a previous situation in which domestic abuse took place, perhaps in a previous life. But domestic abuse still figures in that situation, so if an alleged perpetrator has a previous domestic abuse conviction, it would be better to be safe than sorry.
The noble Baroness, Lady Jones of Moulsecoomb, moved Amendment 130A, as an amendment to Amendment 130, which takes matters a little further to include fact-finding hearings in the family courts, which most commonly concern domestic abuse. In such hearings, it is for the person making the allegations to prove that they are true. The judge considers on the balance of probabilities whether the allegations are true or not. The presumption in Amendment 130 is therefore extended while the hearings take place. I think it is better that, where there is a previous conviction, even with another partner in a different situation, it is still far better to be safe than sorry.
I hope that the Minister will be minded to consider these amendments carefully and, if necessary, make changes to make them a little better on Report.
My Lords, as the noble Lord, Lord Rosser, has explained, Amendment 130, formerly in the name of the noble Lord, Lord Ponsonby of Shulbrede, seeks to make it clear that the presumption that parental involvement furthers the child’s welfare cannot apply where there is evidence of domestic abuse. It also seeks to prohibit unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences or where there are ongoing criminal proceedings for domestic abuse.
Amendment 130A in the name of the noble Baroness, Lady Jones of Moulsecoomb, extends this. It seeks to prohibit unsupervised contact for a parent pending a fact-finding hearing in family proceedings or where domestic abuse is alleged or is proven—either in such a fact-finding hearing or as the result of a criminal conviction for a domestic abuse offence.
Before proceeding, I hope the Committee will forgive me if I make two overarching points. First—and I say this respectfully, given my short time in this House—the debate we have just had shows the value and importance of Committee stage. A number of contributors have listened to and considered the points that have been made and, on occasion, have changed their position. There is nothing wrong with that. If I have one regret—and again I say this respectfully—it is that our PR means that the value of these Committees is not as well understood outside this House as it is within it.
Secondly, in the last debate, the noble Lord, Lord Marks of Henley-on-Thames, made the point that what seems an arcane legal matter to lawyers—and perhaps to others in this Chamber—is improved by real-world experience and examples. In this debate, contributions from the noble Baroness, Lady Jones of Moulsecoomb, and the noble Baroness, Lady Meacher, have done just that. I agree with the noble Baroness, Lady Meacher, that anecdote is not evidence and that we must have research. I will come to this issue later in my remarks. Hearing the case of an eight year-old girl unlocking the front door to catch a bus to get to her father’s house is a powerful example. The image of a child saying his last words to a fireman in a smoke-filled attic will stay with me, and rightly so. It reminds me that, although we are debating words on paper, they have consequences in the real world. I am sure that many, if not all, noble Lords will feel the same.
I have a great deal of sympathy for the aims of these amendments, and I agree that more needs to be done to ensure that the courts take proper account of the impact that domestic abuse can have on children’s well-being and safety. To that extent, I agree with the noble Baroness, Lady Jones of Moulsecoomb, that we should seek to remove stress from children, in so far as we can. That was why, late last year, following the recommendations from the Expert Panel on Harm in the Family Courts, the Government launched a review on the presumption of parental involvement. Importantly, the panel did not call for immediate legislative change. Instead, it recommended a full review. They were right to do so. As the noble Lord, Lord Rosser, said and as noble Lords will be aware, this review is under way. As the noble Baroness, Lady Meacher, said, it will give us important data, research and a considered analysis.
The review will focus on the presumption—and its exception—and the impact on children’s welfare of the courts’ application of these provisions. It will allow us to build a stronger evidence base and ensure that any changes brought about as a result are rooted in a solid understanding of the effect of the presumption and the associated evidence on child welfare. It would therefore be premature to amend the legislation relating to the presumption, including Section 9 of the Children Act—as proposed in the amendment—before gaining the in-depth evidence from the review.
It is worth highlighting that the current legislation on the presumption makes it clear that it should be disapplied where there is risk of harm to the child. This means that the risk of harm from a parent perpetrator of domestic abuse should already be taken into account by the courts. As the noble Lord, Lord Marks of Henley-on-Thames, reminded us, Section 1 of the Children Act 1989 makes the child’s welfare paramount. It should also ensure that courts consider the risk of a child suffering harm, or further harm, when deciding on any aspect of the child’s upbringing.
Some noble Lords asked how contact between a child and a parent who has committed domestic abuse, or against whom it has been alleged, could ever be in the best interests of the child. The short answer is that this is not an easy question, but it is for the courts to decide in each case, taking into account all the evidence presented to them. The noble and learned Baroness, Lady Butler-Sloss, has vast experience in this area. She gave us an example of such a possible case. She also made an important point about judicial training, which we shall come to in a later group.
In addition to my general point that this issue is catered for in the current statutory architecture, there are two further problems to which the amendments would lead. First, domestic abuse is only one of many circumstances which may impact on a child’s well-being and safety. By expressly referring to it, these amendments could be seen to give domestic abuse prominence over other valid considerations which the court should take into account in deciding whether such an order would be in the best interests of the child—for example, other sexual or violent offending, or a history of or allegations of child abuse. I say this without downplaying in any way the importance and effect of domestic abuse.
Secondly, as a number of contributors have said, the second part of the amendment would lead to an automatic ban. The court could not exercise discretion. If we legislate to create automatic bans on a particular form of contact, there may be concerns that we are not allowing courts to take sufficient account of whether there are risks to the child in the particular circumstances of the case. Risks and rights must be weighed carefully, allowing courts to assess each case on its merits. The noble Lord, Lord Marks, gave an example where, on the facts of the case, a court might want to permit contact.
Other noble Lords, who are not lawyers, have also contributed to this debate. My noble friend Lord Randall of Uxbridge summarised it very well—so much so that he led the noble Lord, Lord Rooker, to tear up his speech. This must be a rare, if not unique, occurrence. The noble Baroness, Lady Meacher, said it was “likely” that the court would reach such a conclusion. This is the point I am making: it may be likely, but we should not force the court to do so. We should not remove the court’s discretion. Ultimately, the court should make the decision, based on all the facts of the case. Furthermore, it is not clear from the terms of the amendment whether such bans, if they prevent unsupervised contact following a conviction or finding of fact, would or should be capable of being lifted or modified if the risks in an individual case materially change. I respectfully agree with my noble friend Lady Gardner of Parkes when she said that she was not persuaded that the amendment was necessary, and that it might have unintended consequences.
I also agree with the point made by the noble Baroness, Lady Burt of Solihull: that nothing is as simple as it first appears in this area of the law. There are risks on all sides in this area, so to speak. There are risks of contact and, as my noble friend Lady Altmann reminded us, there are risks in preventing contact as well. I therefore suggest to the Committee that the approach in the current legislation, which was identified and explained by the noble and learned Baroness, Lady Butler-Sloss, with, if I may respectfully say so, her customary clarity, is the correct one.
Forgive me, I am just looking at my notes to make sure that I have acknowledged all the contributions that were made. I think that I have; I apologise if I have inadvertently omitted anybody. I hope that I have replied to all noble Lords who contributed.
This has been, as I said at the start, a most important and valuable debate. The Government’s contention is that we should wait for the outcome of the review of the presumption of parental involvement before any decisions are taken in relation to whether changes are required to that presumption or its application. Given this and the other points I have made in reply, I hope that the noble Lord, Lord Rosser, will be content to withdraw his amendment if the noble Baroness, Lady Jones of Moulsecoomb, does so with hers.
My Lords, I thank all noble Lords who contributed to this extremely valuable debate. In particular, I thank the Minister for his sympathy for our point of view. As he says, there are real consequences in rejecting these amendments. I note the heavyweight opposition on several points but I am not convinced. The fact is that we have a problem and just rejecting these amendments will not solve it. I hope that there will be further working together on this, and that noble Lords will forgive me if I do not note all the responses, as it was fairly clear these amendments will not be going forward.
I really want to thank the noble Baroness, Lady Burt of Solihull, for her very constructive comments. The fact is that, as she said, we can underestimate the damage done by perpetrators. This is the problem. We have not fixed the problem of children’s deaths through abusive parents. Going forward, I want to find out how we can solve that problem. Let us please remember that deaths are a figure we can point to but that mental, physical and emotional abuse are much harder to quantify. This must happen. If we have 20, 24 or 60 deaths, whatever, then a multiplicity of other abuses will have happened. We must take that into account in rejecting these amendments. I said at the beginning of the debate that there is always a presumption of parental involvement—that it is better to have two parents involved—but the way that things stand at the moment is too strong, so this must be rethought.
I beg leave to withdraw my amendment and presume that the amendment of the noble Lord, Lord Rosser, will also be withdrawn. I feel that he was absolutely right to table his amendment, because it has enabled a debate. Hopefully, we will move forward and find a solution.
Amendment 130A (to Amendment 130) withdrawn.
I am not quite sure what right of reply I have, since my name is not shown on the speakers’ list as being able to speak at the end of this debate. I do not want to test the patience of the House, so I had probably better keep my comments brief.
It was the expert panel set up by the Ministry of Justice which came to the conclusion that the presumption in favour of contact
“further reinforces the pro-contact culture and detracts from the court’s focus on the child’s individual welfare and safety.”
I would add that my amendment does not prevent a court coming to the conclusion that, nevertheless, where there is domestic abuse, there should still be involvement with both parents. It is just that it would not start off with a presumption that it should be the case.
I will leave my comments there. I thank the Minister for his full response, and thank all noble Lords who took part in the debate. Bearing in mind that I am not actually shown as having a right to speak at the end, I had better conclude my comments by begging leave to withdraw my amendment.
The noble Lord was entitled to speak. He was just left off the list inadvertently.
Amendment 130 withdrawn.
My Lords, we now come to the group beginning with Amendment 131. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate, and that anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
131: After Clause 64, insert the following new Clause—
“Confidentiality of refuge addresses
(1) In family proceedings, where a person (“P”) is—(a) witness or party to the proceedings; and(b) has been subject to domestic abuse as defined under section 1 of this Act; and(c) is residing at a refuge;the provisions in this section apply.(2) The court must not share the residential address of the refuge with any individual or third party.(3) A court order must not be served on P at the residential address of the refuge.(4) A court order may be served on P at the refuge’s office address or by an alternative method or at an alternative place, in accordance with Part 6 of the Family Procedure Rules 2010.(5) The residential address of the refuge must be redacted from any court documentation.”Member’s explanatory statement
This would prevent the residential address of a refuge being shared as part of court proceedings.
My Lords, in moving Amendment 131 in my name, to which the noble Lord, Lord Ponsonby, has added his name, I will leave the other amendments in this grouping in the capable hands of the noble Lord, Lord Rosser, and the noble Baroness, Lady Helic. However, I support them.
Amendment 131 seeks to provide a legal safety net for the secrecy of refuge addresses. The refuge model is predicated on the secrecy and protection of safe addresses. The responsibility for protecting these addresses falls not only on staff but on each and every resident at a refuge. Licences are assigned upon entry, with the penalty that a resident must leave if they reveal the address to anybody. Despite these safeguards, refuges can find themselves the subject of orders from the family court—particularly location orders from fathers trying to locate mothers and children. Refuge providers are forced to disclose their addresses to facilitate the service of court orders on mothers. Although some protections are in place, it is clear that there are some loopholes.
I do not want to overstate how often this happens but it is certainly true that, in nearly all such cases, information is kept confidential. However, last year, I was made aware of two cases where this information was released by the court, with concerning and dangerous consequences. In one case, the police visited the refuge and searched the mother’s belongings for passports, which did not exist, on the basis of false information from her abusive partner. This visit was deeply distressing for an already traumatised mother and child, as it was for other residents of the refuge who felt that their safety had been entirely jeopardised. In the second case, the father used the information to locate and stalk his victim and, ultimately, abduct his child and take them abroad. Having worked on the introduction of stalking protection orders, I am aware how prevalent stalking is in domestic abuse cases and how quickly it can escalate once the victim flees.
The principle behind my amendment is a very simple one: that court orders should never be served at the refuge itself and that the refuge address should remain confidential. It provides that the orders be served
“at the refuge’s office address or by an alternative method or at an alternative place, in accordance with Part 6 of the Family Procedure Rules 2010.”
As such, the amendment would not make a significant change to the existing protections. It would simply strengthen and clarify the cases in which they should be used. When similar issues were raised in Committee in the other place, the Minister stated that the Family Procedure Rules already provide for alternate routes to service and that, in domestic abuse cases, the information would be kept confidential by the court, meaning that the measures in this amendment were already provided for.
The other issue raised by Ministers was around the urgency of cases where a child’s safety is at risk. There was some concern that an alternative route to service, such as using the office address of a refuge, would present a delay in proceedings and could have the unintended consequence of endangering the child. I respectfully disagree and contend that the current situation, where refuges are pressured into revealing their most fiercely guarded information, causes more delay. In the two cases that I have outlined, the refuge provider was resistant to revealing the address and took additional time to seek legal advice and to consider all the options, including genuinely considering not complying with a court order, which in no way is to