Domestic Abuse Bill

Debate between Lord Marks of Henley-on-Thames and Lord Morris of Aberavon

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 25th January 2021 Lords Chamber

[Lord Morris of Aberavon (Lab) [V]]

My Lords, I speak briefly on Amendments 6 and 7, which I support. Unfortunately, I was cut off from making further comments at Second Reading as I would have exceeded the time limit. I seek clarification on Clause 2(1), which I would have mentioned then. On the face of it, it appears to cover most, I hope all, the eventualities of which we can conceive. But I must express concern when the noble and learned Baroness, Lady Butler-Sloss—who knows more about these matters than anyone else in your Lordships’ House—seeks to amend the Bill, and I endorse the remarks of the noble Baroness, Lady McIntosh. They seek to add to the definition of “personally connected” in the Clause, with the words “guardian of the other” and

“lives in the same household as the child”.

An amendment that goes in the same direction adds the definition that one person is a “provider of care” for the other.

In my Second Reading speech, I would have referred to my recollection, as a very young man, a long time ago, of occasionally appearing in undefended divorce cases. To claim a divorce for your client, one had to satisfy the judge of, first, the grounds for the divorce, which did not usually take up much judicial time, and, secondly, the arrangements for the “child of the family”. That was taken seriously. The child of the family did not need a blood relationship. I found no difficulty with this extended relationship from the make-up of my own family.

Of course divorce law has changed considerably since that time, but on the face of it, if you couple the definition in Clause 2 and the words “parental responsibility”, having the same meaning as in Section 3 of the Children Act 1989, which I have reconsidered, it should be sufficiently all-embracing. Obviously the noble and learned Baroness, Lady Butler-Sloss, is concerned, and the Minister should dwell deeply and give us clarification.

The mischief we are trying to cover adequately is the definition of parent and child and the words “parental responsibility”. My short point is, having regard to the amendments proposed by the noble and learned Baroness, Lady Butler-Sloss and the noble Lord, Lord Rosser, is the Minister satisfied that Clause 2 is sufficiently all-embracing? I would be surprised if it is not, but I am not a family lawyer. I have been only a criminal lawyer for most of the past 40 years. I hope the Minister will give the Committee the assurances which the noble and learned Baroness, Lady Butler-Sloss, and all of us would like to have.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, I suspect most members of the public think of the typical case of domestic abuse as being that of an overbearing man who physically bullies his wife or partner and often the children of the household as well. This Bill enlarges that paradigm at Clause 1(3) by skilfully categorising the very different forms that abusive behaviour can take—all those forms, I suggest, being bullying behaviour. The Bill also rightly recognises that although most victims are women, a sizeable minority —about a third—are men, and the Bill is rightly gender-neutral for that reason.

However, I still believe, as I said at Second Reading, that in treating domestic abuse as limited by the definition of personal connection in Clause 2(1), the Bill has been too narrowly drawn so that it does not capture many of the relationships that give rise to abusive behaviour within a domestic context. I agree with other noble Lords who have spoken that by this narrow classification, we risk unnecessarily and unwisely excluding numbers of victims and potential victims who are no less vulnerable and no less exposed to domestic abuse than those who fall within the proposed definition. It follows that I do not accept the Government’s response in the House of Commons to an amendment on carers, when the Minister, Victoria Atkins, MP, said that the Government had,

“tried to guard against addressing all forms of exploitative behaviour in the Bill”—[Official Report, Commons, Domestic Abuse Bill Committee, 9/6/20; col. 109.]

and so dilute the understanding of domestic abuse as being focused around what she described as “a significant personal relationship”. I fully accept the sincerity of that approach, but it fails to grapple with the reality that domestic abuse happens far more widely than the paradigm cases would suggest. I therefore invite the Minister to move from that position.

With some caveats, I broadly support all the amendments in this group. I see no reason, for example, not to include in the Bill abusive behaviour by guardians towards their wards, as the noble and learned Baroness, Lady Butler-Sloss, has argued in support of Amendment 1, or abusive behaviour by carers of persons with disabilities towards the people for whom they are supposed to be caring. I also agree that it should not matter whether the care is paid or unpaid, nor whether the carer and the victim live in the same household. I also agree that the type of care involved should be broadly defined to include emotional or psychological care as well as physical care. I also strongly support Amendment 8 dealing with forced marriages, but I wonder whether its proposers and the Government may wish to consider the amendment further, certainly to ensure that it protects anyone at risk of being forced into marriage by the potential spouse rather than by someone else, as in the amendment as presently drafted.

Amendment 9, relating to abuse by domestic employers towards those in domestic servitude, makes reference, as I read it, particularly to those held in servitude contrary to the Modern Slavery Act or Article 4 of the European Convention on Human Rights. That is clearly what the noble and learned Baroness, Lady Butler-Sloss, intended. However, it may be that the definition should be clarified or enlarged, so as to ensure that it includes all those who are coerced into working in their employer’s households in inhumane conditions, for vastly excessive hours and for hopelessly inadequate wages—if indeed they are paid at all. These victims have often been brought here from abroad as members of their employer’s households, and they are often frightened that, outside those households, they have no way of staying here legally and no means of support.

Defamation Bill

Debate between Lord Marks of Henley-on-Thames and Lord Morris of Aberavon

Tuesday 15th January 2013 Grand Committee

[Lord Morris of Aberavon]

My Lords, I make a brief intervention. I listened very carefully to what the noble Lord, Lord Lester, said, in moving his amendment, but I need a little further assistance. I am not quite clear about his purpose. I do not think that he specified—I was listening as best I can—the distinction that he makes between a statement which is defamatory and a statement which, additionally, might be unlawful. The danger I see, if they have the same meaning, is that the courts will look at the provisions very carefully and regard them as otiose. What purpose is intended? Does it create an additional burden on the complainant? When he makes his representations under the clause, will the complainant have to define in what way the statement is unlawful? Perhaps we could have assistance on that score.

[Lord Marks of Henley-on-Thames]

My Lords, I shall speak in broad support of the sentiment behind Amendment 27 in the names of the noble Viscount, Lord Colville of Culross, and my noble friend Lord Allan, but first I address Amendment 26, which I support as a bare minimum. I also address the point put by the noble and learned Lord, Lord Morris, to my noble friend Lord Lester. I think that my noble friend understated the position on what is defamatory and what defamatory means. As I have always understood it, a statement is defamatory if it causes the necessary damage to reputation. It may then be that under existing law, a defence of justification can be mounted which shows that the defamatory statement is justified as true. That does not stop the statement being defamatory, but it stops the statement being unlawful. In other words, it starts off as defamatory—I see learned agreement on the other side of the Room—and then one looks at the question of defences.

It follows that without the word “unlawful” in paragraph (b), the requirement that the complaint,

“sets out the statement concerned and explains why it is defamatory of the complainant”,

goes only half way and is nowhere near enough. I echo the sentiments expressed by my noble friend Lord Mawhinney about the view of the Joint Committee on the Bill and the topic: the purpose of whatever procedure we adopt is to give some protection, as far as is practicable, to persons defamed on the internet and, on the other side, to impose some responsibility on website operators, without ensuring that an operator is stuck with liability for all the material posted on his site.

I strongly supported, and indeed took some part in formulating, the notice and takedown procedure for material from unidentified authors proposed in our report, with the possibility of an operator securing a leave-up order for material that, although it was from an unidentified author, nevertheless the operator believed ought to stay up—for instance, in the case of whistleblowers. The Government have opted for a different procedure, and it is right that that procedure draws the correct distinction that we drew between the posts of identifiable authors, who can then be identified and sued, and anonymous material. Whatever system we have, though, it is important that there should be some quick and cheap option that levels the playing field between complainant and author or operator. The detailed notice of complaint as envisaged by Amendment 27, as the noble Viscount, Lord Colville, has explained, is a satisfactory first step.

I appreciate that it can be said that, subject to the point made by the noble Lord, Lord Lester, the word “unlawful” is required, but regulations could be made within the ambit of “defamatory and unlawful” that would expand upon the requirements for a detailed notice of complaint. However, I suggest that it is better that, rather than being left to regulation, the broad contents of the notice of complaint should be spelt out in statute. I say that because one of the purposes of the Bill, as we saw it in the Joint Committee, was to make the law as accessible as possible so that anyone could look up what procedures would be required by looking at the Act. By effectively leaving the requirements for a notice of complaint to delegated legislation, the simplicity of accessing the statute and accessing law on the internet is reduced.

It would then be necessary to add to the requirements for a detailed notice of complaint, something like Amendments 25A and 25B proposed by the noble Lord, Lord Browne of Ladyton, and the noble Baroness, Lady Hayter, in the previous group. I, too, was pleased to see the Minister’s response to those amendments show at least some flexibility or promise thereof. We would then have the beginnings of a system to ensure that, where defamatory material was posted by an operator, the detailed process of complaint would get some publicity because the notice of complaint would be put on the website by the operator. That would offer some partial protection to the person defamed. I applaud the suggestion that if the operator then fails to put up such a notice of complaint, which he can do, he must take his chances and accept that he is made liable to be sued by the deprivation of the Clause 5 defence.

I reiterate what has been said: neither the proposed system nor any system that we could possibly devise would be perfect, for the simple reason that my noble friend Lord Lester mentioned earlier today—namely, that we are trying to formulate a local response to an international phenomenon. However, I suggest in answer to some of the defeatism—the Minister was defeated up to a point in his earlier reply—there is no reason to give up on the problem because the system is not perfect and therefore do nothing. It is worth doing all that we can, I suggest, for two reasons. The first is that we can ensure fairness in respect of posts that are subject to our jurisdiction. The second, I suggest, is that by what we introduce in legislation, we can set an example of best practice for website operators elsewhere.

I would like to say a word or two about civil procedures that would be appropriate either under Amendment 27, under Clause 5 or under the regulations. I suggest that it is essential that any such procedures we adopt respond fully to the point made by my noble friend Lord Phillips of Sudbury that the procedures that involve going to court can be very expensive. The answer from the noble Viscount, Lord Colville, that this can be dealt with in the ordinary way before Masters is a partial answer only, because those of us who have attended before Masters, and have prepared interim applications before Masters and district judges in other cases, know that they themselves can be very expensive indeed.

What we envisaged on the Joint Committee was a quick and cheap paper-based or internet-based procedure, with specialist district judges simply looking at the case presented to them on paper and making a decision. Those specialist judges would give their decision, but it would of course be only a holding position, because action would be deferred. However, it is not right to introduce, by what we do now, a whole new level of expensive procedure in respect of internet actions, which, from the McAlpine case, we know can sometimes result in £5 awards or £5 settlements over a very large number of cases. Those cases need to be kept small, simple, quick and cheap.