Independent Office for Police Conduct

Lord Rosser Excerpts

Tuesday 16th March 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, in her letter to the Home Secretary dated 15 February 2021, the commissioner set out that the MPS will follow the College of Policing media approved professional practice, which I set out to the House a few moments ago. Whether a breach of that is a disciplinary matter must be a matter for the police and for the IOPC.

[Lord Rosser (Lab) [V]]

This Question is about victims of false allegations and the role of the IOPC in investigating what happened and why. We also need to do better for all those victims who bring forward legitimate allegations yet are failed. Some 99% of rapes reported to the police in England and Wales result in no legal proceedings whatever. What more can the police and the IOPC do to play their part in helping to ensure that the rate of prosecutions for rape increases?

[Lord Wolfson of Tredegar (Con)]

The noble Lord raises a critical point. Both my department and the CPS are focused on ensuring that we improve the number of rape allegations which come to court, where there is sufficient evidence to do so, and that the conviction rate improves as well. That is a huge amount of work and outside the ambit of a particular answer, but he will know that the Government are particularly focused on that area.

Domestic Abuse Bill

Lord Rosser Excerpts

Report stage
Wednesday 10th March 2021 Lords Chamber

[Lord Russell of Liverpool (CB)]

My Lords, I shall be extremely brief, not least because of the happy coincidence that the noble Lords, Lord Hunt and Lord Polak, have largely said what I was going to say. I thank them. I can now go and have a late lunch.

Like the noble Lord, Lord Polak, I was impressed by the Barnardo’s press release last Thursday, with all the different voices speaking in unison. My own experience of dealing with voluntary organisations over many years is that hell hath no fury like different voluntary organisations in pursuit of similar goals and, in particular, similar pools of funding. Peace seems rather dangerously to have broken out in this case. I hope it will continue.

I thank the Government for listening. It was a bit of a no-brainer with a Bill in which 25% of the accommodation-based services for domestic abuse victims were dealt with but 75% were not. That was an open goal waiting to be filled. I am grateful that the Government have acknowledged this and acted on it.

Like the noble Lord, Lord Hunt, I took note of the National Audit Office investigation and report into the state of local authority funding. I have observed a variety of individuals in this House—some of whom I have worked in co-operation with—who, for the best of reasons, ceaselessly plead with the Government to put more and more statutory duties on local authorities in a whole variety of different areas. In a sense, this is dangerous because, in a situation where local authorities are under the strains and stresses that they are, piling even more statutory duties or guidance on them runs the risk of mission failure and initiative fatigue. I am very conscious of this. It requires a joined-up approach from the different parts of Her Majesty’s Government.

The Home Office is doing its bit. The Ministry of Justice is going to do what may not come easily to it and talk more openly with the communities department —and vice versa. It was not terribly helpful that the Secretary of State, while acknowledging the councils’ problems, could not resist the political dig of accusing them of poor management. This is a bit rich coming from a national Administration who have spent the amount of money they have on initiatives such as test and trace, or who have presided over the highest number of deaths per million in the world during the current pandemic. Before one starts throwing political missiles at one’s opponents, it does one a lot of good to look in the mirror and have a degree of humility. None of us gets it right all the time.

When the domestic abuse commissioner comes back with her recommendations, I would plead with the various parts of national government and the local authorities to talk to one another, agree, buy into whatever is recommended, and put in place properly thought-through, long-term plans to deliver on this strategy and to fund it properly.

[Lord Rosser (Lab) [V]]

My Lords, government Amendment 17 requires the domestic abuse commissioner to prepare and publish a report on

“the need for domestic abuse services in England, and … the provision of such services.”

The report must be published no later than 12 months after this new clause comes into force.

Other government amendments require local authorities to keep under review the impact of the duty to provide accommodation-based services on their provision of other domestic abuse services in the community.

Amendment 30, in the name of my noble friend Lord Hunt of Kings Heath, makes it clear that the public authority may not prioritise accommodation-based support services for persons with a protected characteristic over other support services for the same person, except in so far as those persons have a greater need for accommodation-based services than for other support services.

Amendment 31 would give the Secretary of State power through regulations to extend the duty in Part 4 to include community services, instead of just accommodation-based services. I agree with the points made and the concerns raised by my noble friend Lord Hunt of Kings Heath in his powerful contribution.

Amendments 85 and 86 in my name are the community service amendments from the noble Lord, Lord Polak, re-tabled. We tabled them pending sight of the Government’s specific commitments and amendments. I will not move them. Like others in the House and outside, we welcome the Government’s amendments and commitment to consult on community-based services as part of the consultation on the victims law. I pay tribute to the noble Lord, Lord Polak, and to other noble Lords, as well as to all the organisations which have worked on this issue. I also pay tribute to the shadow Minister in the Commons, Jess Phillips, who pursued the proper provision for community-based services with some vigour and determination during the Bill’s passage through the other House.

We now need to see the Government’s words and commitments translated into real progress and meaningful action. The key to achieving this is for services, victims and perpetrators to be looked at holistically; to see what needs to be done in the round to prevent abuse, and to support victims who experience it. This also means providing services for children who are victims, for older victims and for perpetrators, as well as ensuring that there are specialist services for black and ethnic minority victims. Healthcare services are also vital.

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

My Lords, I expressed my concern in Committee at the proposal to abandon the presumption in subsection (2A) of the Children Act 1989 where there has been domestic abuse that has affected the child or the other parent. My concern was then, as it is now, that under the Children Act the welfare of the child must be the court’s paramount consideration.

The presumption requires courts, when making orders about arrangements for children, including their living arrangements and arrangements for contacts, to ensure 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 is supported by a great deal of evidence that for children to maintain a relationship with both their parents following a breakdown of the parents’ relationship is generally in their best interests. The presumption has stood the test of time. It serves to remind custodial and non-custodial parents in entirely non-abusive relationships that have nevertheless broken down that their responsibility is to try to help their children to maintain relationships with the other, non-residential parent.

But the presumption is rebuttable, hence the words

“unless the contrary is shown”.

In many cases involving domestic abuse, judges will not order contact, because the best interests of the child will not be met by their making an order for contact. That covers the cases that I suspect the noble Baronesses, Lady Uddin and Lady Jones of Moulsecoomb, are worried about.

However, as I attempted to demonstrate in Committee, there may be cases where acts of abuse should not lead to the conclusion that contact should be cut. In some cases, the child will have not witnessed, known about or been put at risk by an act of abuse, which may have been a completely isolated act, committed against its parent. I am reluctant to disagree with the noble Baroness, Lady Jones of Moulsecoomb, because I so rarely do, but I do on this occasion. I understand her concern and that of the noble Baroness, Lady Uddin, to ensure that children are protected from the harm of unsuitable and often dangerous contacts, but to provide that protection is the job of judges. It is not the task of Parliament to make absolutist rules that treat all cases where allegations of abuse are made in the same way. Judicial discretion in these cases should be left as it is, exactly for the reasons advanced by the noble and learned Baroness, Lady Butler-Sloss.

I also do not accept that the proposed new subsection (4) should pass into law. It would provide that no court should make an order for unsupervised contact with a parent who is, broadly, facing proceedings for a domestic abuse offence, is involved in a fact-finding hearing for a domestic abuse offence or who has a criminal conviction for such an offence. There are two points that are conclusive against such a clause. First, in the circumstances of paragraphs (a) to (c) in the proposed new subsection (8) of Section 9 of the Children Act, there would have been no finding of guilt of domestic abuse. The presumption of innocence has to apply, a point well made by the noble Baroness, Lady Fox of Buckley. A judge hearing a contact application should not be barred by a statutory prohibition from making a finding of fact and an order after hearing evidence if they take the view that the welfare of the child would be best served by making such an order for contact, just because there is a statutory prohibition that operates without a finding of fact.

Secondly, this suggested prohibition would not be limited to cases where the alleged offending party is said to have been involved in domestic abuse against either the child or its other parent, so it would forbid a contact order between the prohibited parent and a child from an entirely different relationship. A court would be forbidden from making an order for contact with a child from a father’s relationship with a former partner, with whom a good relationship had been maintained by him and by the child, because of an allegation of domestic abuse lodged by a subsequent partner. Such an absolute prohibition would be wrong, and I cannot support it.

[Lord Rosser (Lab) [V]]

My Lords, the proposed new clause in this amendment moved by the noble Baroness, Lady Jones of Moulsecoomb, would disapply the presumption that parental involvement furthers a child’s welfare in cases where there has been domestic abuse. It would also prohibit unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences where there are ongoing criminal proceedings for domestic abuse or where the parent has a criminal offence for domestic abuse. I moved a similar amendment in Committee which did not receive the backing of a number of speakers in the debate or of the Minister.

In his response in Committee, the Minister said:

“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.”


He went on to say that

“following the recommendations from the Expert Panel on Harm in the Family Courts, the Government launched a review on the presumption of parental involvement”

which

“will focus on the presumption … and the impact on children’s welfare of the courts’ application of these provisions.”

He argued that it would

“be premature to amend the legislation relating to the presumption … before gaining the in-depth evidence from the review.”—[Official Report, 3/2/21; col. 2222.]

However, we should not forget that Women’s Aid’s Nineteen Child Homicides documents the cases of 19 children in 12 families who were killed in circumstances relating to child contact by a father who was the perpetrator of domestic abuse. The Expert Panel on Harm in the Family Courts said that it had

“received sufficient evidence to conclude that in the cohort of cases described in submissions the presumption further reinforces the procontact culture and detracts from the court’s focus on the child’s individual welfare and safety.”

The report also states:

“The panel is clear, however, that the presumption should not remain in its present form.”


There is thus some clear and, indeed, tragic evidence that the present arrangements relating to the presumption of parental involvement as opposed to solely what is in the best interests of the child, including its welfare and safety, are just not delivering the protections they should. However, in the light of the concerns expressed by some noble Lords in Committee, which have been repeated today, and the current review of the presumption of parental involvement, we did not put down the amendment for Report. Instead, we will continue to pursue this issue outside the discussions and debates on the Bill.

[Lord Wolfson of Tredegar (Con)]

My Lords, as the noble Baroness, Lady Jones of Moulsecoomb, has explained, Amendment 42 seeks to disapply the presumption found in the Children Act—that parental involvement furthers the child’s welfare—when there has been domestic abuse that has affected the child or the other parent.

The amendment also seeks to prohibit unsupervised contact by a parent in a number of different circumstances: when they are on bail awaiting trial; when there are ongoing criminal proceedings for a domestic abuse offence; when a fact-finding hearing concerning domestic abuse allegations is pending; and when domestic abuse is proven in such a fact-finding hearing or as a result of a criminal conviction for a domestic abuse offence.

In Committee, many noble Lords spoke passionately about the presumption of parental involvement and gave a number of examples of unsupervised contact leading to tragic results in cases which involved domestic abuse. The noble Lord, Lord Rosser, reminded us of some of them this evening. As I said in Committee, I have significant sympathy for the aims of this amendment and agree that more needs to be done to ensure that the courts are taking proper account of the impact domestic abuse can have on children’s well-being and safety. That is why this Government, in November 2020, following the recommendations from the Expert Panel on Harm in the Family Courts, launched a review of the presumption of parental involvement. The noble Lord, Lord Rosser, and the noble Baroness, Lady Uddin, referred to the harm panel’s report, but it is important to acknowledge that the panel did not call for immediate legislative change, despite hearing evidence from more than 1,200 parties. Instead, the panel recommended that a full review be undertaken by the Government, and that is precisely what we are doing.

In my respectful view, the panel was right to do so because, as the debate in Committee demonstrated, this is a complex and nuanced issue, with a significant real-world impact for the thousands of families who go through the family courts every year. That review will focus on the application of the provision and its exceptions, and the impact on children’s welfare of the courts’ application of those provisions. Through the review, we will develop a strong evidence base and ensure that any changes brought about as a result of it are rooted in a solid understanding of the effect of the presumption and the associated evidence on child welfare. I remain of the view that it would be premature to amend the Children Act in the way proposed by the amendment before gaining the in-depth evidence and response from the review.

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[Baroness Burt of Solihull (LD)]

I am grateful to have the opportunity to speak. I was delighted to see the Minister’s name on Amendment 45 and the consequential Amendments 88, 89 and 96. That is three times that I have been delighted today so I do not quite know what is going on. I welcome the extension of “personally connected” in the context of coercive control to family members or people who have been in an intimate relationship, whether living together or not.

The noble Baroness, Lady Lister, talked about how important training for police and professionals is in the implementation phase. As several noble Lords have said, a lot of individuals who are being coercively controlled do not know or appreciate that fact. It is a bit like the story of the frog in the beaker where the water gets heated more and more, very gently, and the frog does not realise that it is trapped until it is too late. It really makes a difference if other people can recognise what is going on, perhaps even before the victim themselves.

Post-separation abuse is a terrible thing. Having thought that you had escaped the abuse but then realising that you are being dragged back and dragged down financially and emotionally takes a toll. We have heard a number of examples of just how awful that is, so I cannot say just how happy I am.

We have been pushing the boundaries somewhat regarding the definition of “personally connected” in several contexts. I will talk about disabled people in a second but, with regard to family members or people who have been in an intimate relationship, whether or not they are living together, I am glad that the Minister has listened. I am sure that is right, and the Bill will be stronger for it.

Amendments 46 and 47 extend the definition to the relationship between a disabled person and their carer. We had this discussion on Monday, so I will not repeat the arguments that were used then, but I was disappointed by the Minister’s response. The House showed its concerns and feelings, and I hope that the Minister takes them into account in her remarks, but also takes the opportunity to have another think before Third Reading and the Bill goes back to the House of Commons.

We strongly need disabled people to be heard. We heard strong arguments for this on Monday and tonight, not least from the noble Baroness, Lady Grey-Thompson. I hope that the Minister listens to them. I very much welcome Amendment 45.

[Lord Rosser (Lab) [V]]

Amendment 45 ensures that the existing offence of coercive or controlling behaviour applies to abuse that happens post-separation by extending the offence to cover those who no longer live together. It aligns the definition of “personally connected” in Section 76 of the Serious Crime Act 2015 with Clause 2 of the Bill, and the result is that the offence of controlling or coercive behaviour will apply to members of the same family or people who have been in an intimate relationship, whether or not they live together.

Amendments 46 and 47 amend Amendment 45 to include the relationship between a disabled person and their carer in the definition of “personally connected” in the Serious Crime Act 2015 to reflect the changes made to the Bill when the earlier amendments of the noble Baroness, Lady Campbell of Surbiton, were agreed on Monday. I congratulate my noble friend Lady Lister of Burtersett for the determination that she has shown in pursuing Amendment 45 and the strength of the case that she has marshalled in support. This is a key amendment for us and, most importantly, a key change for survivors living with abuse after separation. I hope that, after today, they feel that their voices have been heard. We also appreciate the Government’s willingness to support the amendment and the role that the Minister has played. We trust that the House now does likewise.

I also pay tribute to the work of the noble Baroness, Lady Campbell of Surbiton. We strongly support Amendments 46 and 47 in her name, but understand why she now feels that she cannot divide the House, in the light of the Government’s apparent stance on those amendments and the impact that could have on Amendment 45 if they were carried.

The House has already shown its support for the inclusion of carers in the definition of “personally connected”, through the vote on Monday in support of earlier amendments from the noble Baroness, Lady Campbell of Surbiton. We regard Amendments 46 and 47 as consequential parts of the package. As I have already stated, part of what Amendment 45, in the name of my noble friend Lady Lister of Burtersett, achieves is to align the definition of “personally connected” in the Bill with the Serious Crime Act 2015. On Monday, this House added carers to the definition of “personally connected” in the Bill. That is why we believe that the Government should recognise the outcome of the vote on Monday and accept Amendments 46 and 47 as effectively consequential, as the noble Baroness, Lady Campbell of Surbiton, asked. They should give a clear assurance that they accept them, as government support for Amendment 45 means that they will make sure that that amendment, in the name of my noble friend Lady Lister of Burtersett, is still enshrined in the Bill when it becomes an Act.

I hope that the Government think hard about their response to these amendments, particularly to Amendments 46 and 47. If they do not feel that they can give a positive response tonight, along the lines asked for by the noble Baroness, Lady Campbell of Surbiton, perhaps they could reflect further and come back on Third Reading.

Domestic Abuse Bill

Lord Rosser Excerpts

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 8th February 2021 Lords Chamber

Moved by

[Lord Rosser]

148: After Clause 72, insert the following new Clause—
“Recourse to public funds for domestic abuse survivors
(1) The Immigration Acts are amended as follows.(2) In section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) after subsection (10) insert— “(11) This section does not apply to a person who is a victim of domestic abuse in the United Kingdom who provides evidence in one or more of the forms set out in section (Recourse to public funds for domestic abuse survivors) of the Domestic Abuse Act 2021.”(3) In paragraph 2(1) of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 after sub-paragraph (b) insert—“(ba) to a person who is a victim of domestic abuse in the United Kingdom who provides evidence in one or more of the forms set out in section (Recourse to public funds for domestic abuse survivors) of the Domestic Abuse Act 2021, or”.(4) In section 21 of the Immigration Act 2014 (persons disqualified by immigration status or with limited right to rent) at the end of subsection (3) insert “or if P is a victim of domestic abuse”.(5) In section 3 of the Immigration Act 1971 (general provisions for regulation and control) after subsection (1) insert—“(1A) The Secretary of State may not make or maintain a condition under subsection (1)(c)(ii) on leave granted to a victim of domestic abuse in the United Kingdom who provides evidence in one or more of the forms set out in section (Recourse to public funds for domestic abuse survivors) of the Domestic Abuse Act 2021; and it is not a breach of the immigration laws or rules for such a victim to have recourse to public funds.”(6) For the purposes of this section, evidence that a person is a victim of domestic abuse may consist of one or more of the following—(a) a relevant conviction, police caution or protection notice;(b) a relevant court order (including without notice, ex parte, interim or final orders), including a non-molestation undertaking or order, occupation order, domestic abuse protection order, forced marriage protection order or other protective injunction;(c) evidence of relevant criminal proceedings for an offence concerning domestic violence or a police report confirming attendance at an incident resulting from domestic abuse;(d) evidence that a victim has been referred to a multi-agency risk assessment conference;(e) a finding of fact in the family courts of domestic abuse;(f) a medical report from a doctor at a UK hospital confirming injuries or a condition consistent with being a victim of domestic abuse;(g) a letter from a General Medical Council registered general practitioner confirming that he or she is satisfied on the basis of an examination that a person had injuries or a condition consistent with those of a victim of domestic abuse;(h) an undertaking given to a court by the alleged perpetrator of domestic abuse that he or she will not approach the applicant who is the victim of the abuse;(i) a letter from a social services department confirming its involvement in providing services to a person in respect of allegations of domestic abuse;(j) a letter of support or a report from a domestic abuse support organisation; or(k) other evidence of domestic abuse, including from a counsellor, midwife, school, witness or the victim.(7) For the purposes of this section—“domestic abuse” has the same meaning as in section 1 of the Domestic Abuse Act 2021; “victim” includes the dependent child of a person who is a victim of domestic abuse.(8) Within 12 months of this Act being passed, the Secretary of State must commission a review into the operation of the provisions in this section.(9) The Secretary of State must lay before Parliament a report setting out the findings of the review.”Member’s explanatory statement
This new Clause seeks to ensure that certain provisions under the Immigration Acts – including exclusion from public funds, certain types of support and assistance and the right to rent – do not apply to survivors of domestic abuse. There will be a review into the operation of this provision.

[Lord Rosser (Lab) [V]]

My Lords, this group of amendments is on the key issue of protections for migrant victims of domestic abuse who have no recourse to public funds, an issue which has been raised by Members across all sides in both Houses. I will speak in particular to Amendment 148 and thank the noble Baronesses, Lady Hamwee and Lady Bennett of Manor Castle, and the noble and learned Baroness, Lady Butler-Sloss, for adding their names to it.

Amendment 148 provides for a new clause in the Bill which seeks to ensure that certain provisions under the Immigration Acts, including exclusion from public funds and certain types of support and exclusion from right to rent, do not apply to survivors of domestic abuse. The amendment also provides for a review into the operation of this change to be commissioned by the Secretary of State.

There are currently no provisions in the Bill for migrant women facing domestic abuse who have no recourse to public funds. This is despite their abusers being able to use the immigration status of a victim and their consequential inability to have any access to public funds as a means of control. It can be almost impossible for migrant women to escape from their abusers if they have no money to gain access, for example, to a refuge or other accommodation. They are often fearful too of any perceived or actual threat of action by their abusers, or their own actions, that would bring them to the attention of the immigration authorities and possible subsequent immigration enforcement and separation from their children.

The situation is not helped by the fact that it is the same department—the Home Office—that deals with immigration issues, including deportation, and support for victims of domestic abuse, which gives rise to our concern that a victim should always be treated as a person in need of support and not first and foremost as an immigration case.

The Commons Home Affairs Committee stated:

“Insecure immigration status must not bar victims of abuse from protection and access to justice”


and the Joint Committee on the draft Domestic Abuse Bill said:

“We recommend that Government explores ways to extend the temporary concessions available … to support migrant survivors of abuse.”


The Sun also, I believe, gave its support to protecting migrant women in this Bill when it said:

“Domestic abusers don’t discriminate, so why should the law discriminate against their victims?”


No recourse to public funds, NRPF, is a legal restriction that bars people on certain visas from claiming most benefits, tax credits or housing assistance paid for by the state. This would apply, for example, in respect of someone on a student visa. It also applies when migrant women, including their children, become a victim of domestic violence, when the restriction hinders their ability to access life-saving refuge support and other necessary welfare provisions.

Amendment 148 would remove the statutory exclusion that prevents migrant survivors accessing the support and assistance they need and would ensure that no survivor, whatever their immigration status, was treated as being in breach of immigration laws or Immigration Rules by accessing that support or assistance. Without recourse to public funds, migrant victims of domestic abuse are not eligible to welfare benefits needed to cover the cost of a stay in a refuge service. Very few refuge services do not face a funding crisis after 10 years of cuts, and they are unable to cover the cost of a woman’s stay without that funding.

Research by Women’s Aid found that only 5.8% I think it was of refuge vacancies in England in 2018-19 could accept a woman with no recourse to public funds. Three out of every five referrals to a refuge were refused because of a lack of availability and 64% of all referrals to a refuge were declined. That rises to 80% for black and minority-ethnic women. The chances of a migrant woman being able to access a refuge are slim, bordering on impossible.

The experiences of survivors with no recourse to public funds, unable to access a refuge, are grim. Only 8.2% of the women with no recourse to public funds, and supported by the No Woman Turned Away project in 2017, were able to access a refuge—about one in 12. Many had to sleep rough, sofa-surf or even return to the perpetrator while they waited for help. To escape abuse, an individual and their children need to have somewhere to go that above all is safe, providing a bed and food, and to have the resources to be able to get there and stay there. We should not be turning away victims of domestic violence from refuges because of what it does or does not say on their passport, and we should not leave survivors with the only option of sleeping on the streets, with any children, if they are desperate to leave an abusive relationship.

Migrant survivors are often too scared to report domestic abuse as they could then be investigated and even detained. They cannot access safe accommodation and their abusers use their immigration status as a tool of coercive control over them. Women without access to public funds can find it hard to support themselves and their children independently from the perpetrator. It is often the case that the perpetrator is in control of the incomes and the bank accounts.

Women without secure immigration status are prevented from renting accommodation, which also means that refuges can find it difficult to take them. A refuge will always want to provide support, but if a person cannot move forwards into rented accommodation, refuges are left knowing that the move-on options are very limited.

According to the estimates of Southall Black Sisters, we are talking about a group of individuals numbering in the low thousands a year. We are not talking about a large sum of money, but for each of these women the impact on their lives would be enormous.

At the most vulnerable point in their lives, these migrant women need to be believed and to be told that they can be helped. When the abuser tells them that they cannot leave, they have no access to public funds, there is no one to help them and they will be on the streets, they need to know that he is wrong. The trouble is, at the moment he is right. Migrant women are not migrants first and foremost; they are mothers, neighbours, and colleagues in workplaces—for example, care workers and NHS workers. Surely, the solution to the problems many migrant women who suffer domestic abuse face is to give them access to housing benefit, ensure that they can access welfare support and allow them to rent accommodation.

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[Baroness Williams of Trafford (Con)]

The right reverend Prelate is right to raise the point about sustainability, long-term solutions and what happens after the pilot scheme has taken place. It is precisely because we want to identify where the gaps lie and where long-term funding might be needed that we have done this pilot scheme. With that, as I have said throughout the course of this debate, it is our intention to review the matter when that pilot scheme has finished. But the point about funding is one that is well made, because we can have all the legislation in the world and if the funding is not in place there is no point.

[Lord Rosser (Lab) [V]]

I start by thanking the Minister for her very full and comprehensive reply to this debate. I also thank all noble Lords who have contributed to the debate, in which there has been a high degree of unanimity as far as the nature of the contributions is concerned and the objectives that we all want to achieve.

The Government have basically set out why they do not believe that the amendments we have been discussing meet the Bill as far as they are concerned. They have laid some stress on their point that a one-year pilot scheme is about to commence to better assess the level of need for this group of victims. It is, as the Minister has said, to run through until March 2022. Clearly, on that basis, as far as the Government are concerned, not a lot is going to happen to address the problems that have been identified in the near future.

The right reverend Prelate the Bishop of Gloucester pointed out in her very effective contribution that the amount offered to run the pilot project would not meet the needs of all vulnerable migrant women who need crisis support. She also pointed out that the data the pilot scheme may collect is already available. Indeed, it has been published and submitted. I do not think that the Government, in their response, exactly made it clear what information they do not feel they have already, that has not been provided in the data that has been published and submitted. The right reverend Prelate the Bishop of Gloucester also pointed out that the pilot scheme did not guarantee change following its conclusion.

This Bill is surely the opportunity to provide legislative protection to all victims and survivors of domestic abuse, including migrant women who are among the most vulnerable. I had thought that was a government objective. I have no doubt the Minister would say that it is—or at least I hope that is what the Government would say. It does seem that it will be a little way ahead in the future before anything will get resolved. We have a serious issue that needs addressing now and not, maybe, at some unspecified date in the future.

I do not think we have heard, in the Government’s response, how the Government intend to address the immediate problem that exists already. I hope it might be possible, between now and Report, for there to be further discussions on this issue—which will involve a number of people, judging by the number of contributions to the debate and all the people who have added their names to the amendments that we have been discussing. But I share the view of the right reverend Prelate the Bishop of Gloucester that it would be helpful if there could be further discussions about the issues have been raised before Report. I suspect, at the moment, that the issues we have been talking about now for one and three-quarter hours will be brought before the House again on Report, unless discussions provide a solution to the issues we have been talking about. I hope that proves to be the case and that the Minister will ensure those discussions take place. In the meantime, though, I withdraw Amendment 148.

Amendment 148 withdrawn.

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[Lord Rosser (Lab) [V]]

I will just pick up on a point that was made by my noble friend Lady Lister of Burtersett and the noble Baroness, Lady Burt of Solihull. It concerns what was said during the debate on this or a similar amendment in the Commons, when the Government used an argument to deflect the amendment to the effect that we should await the outcome of the review of coercive control legislation due to be completed by “early autumn”. Last autumn was being referred to. It now appears that we might receive some further information—I hope, the outcome of the review—before Report. No doubt the Minister will confirm that or otherwise when she responds.

The point I want to make is that this is far from the first amendment on a key domestic abuse issue that the Government have told us at some stage that they cannot accept because they are awaiting the outcome of a review, pilot scheme or mapping exercise. That suggests that they know that there are real problems that need addressing but have not determined how in time for the Bill. The Bill has already been a long time on its still-unfinished journey to becoming an Act. I am not sure that this is a satisfactory situation. So often we are told that an amendment is unacceptable because there is a review, pilot scheme or mapping exercise outstanding.

My name is attached to Amendment 149 which, as expected, was moved so comprehensively and persuasively by my noble friend Lady Lister of Burtersett. It adds a new clause, which would ensure that those who were previously personally connected are protected from any coercive and controlling behaviour, including economic abuse, that occurs post separation. As we have heard, economic abuse makes the victim dependent on the perpetrator and limits their choices and ability to move. One in five women in the UK reports having experienced economic abuse from a current or former intimate partner, and 95% of domestic abuse victims report that they have suffered economic abuse. It is widespread.

Through economic exploitation, the perpetrator looks to benefit from the victim’s economic resources and, in so doing, sabotage their economic independence. The perpetrator may also build up debt in the victim’s name through coercion or fraud, or even steal or damage the victim’s property, which then has to be replaced. Building up debt in the victim’s name is common and leaves the victim struggling to live with it thereafter. When this happens, the impact on the victim’s economic well-being is hugely destabilising and limits their choices post separation. Economic safety underpins physical safety, and building an independent life can, for many victims of economic abuse, feel impossible. I will not continue further. I had some more points to make, but I know that time is pressing and I am sure that they have already been made.

I conclude by saying that we support Amendment 149, which addresses the deficiency that I referred to earlier: that the post-separation situation is not covered and that currently, victims of economic abuse post-separation are unable to seek justice. We also support the objectives of Amendment 157, which was introduced by my noble friend Lord Hunt of Kings Heath.

[Baroness Williams of Trafford (Con)]

My Lords, I am most grateful to the noble Baroness, Lady Lister, and the noble Lord, Lord Hunt, for setting out the case for their amendments, which seek to extend the offence of controlling or coercive behaviour in an intimate or family relationship. I am also grateful to the noble Lord, Lord Ponsonby, for tabling his amendment, which seeks to repeal the so-called carer’s defence. I join others in paying tribute to the noble Baroness, Lady Greengross, and all the work that she has done in this area. I am grateful, too, to my noble friend Lady Verma, for pointing out the very particular problems faced by some BAME ladies. My noble friend Lady Sanderson illustrated so well how society, including notable broadcasters, has, over time, got to grips with an understanding of coercive control and the terrible harm it causes.

I will address Amendments 149 and 157 before turning to Amendment 171. Amendment 149 seeks to remove the current requirement in the offence of living together in the case of former partners as well as family members. Amendment 157 seeks to remove the current requirement in the offence of living together in the case of relatives who are perpetrating abuse but who do not live with their victim.

Controlling or coercive behaviours are an insidious form of domestic abuse that have long-term debilitating effects on victims and survivors. Such behaviours, intended to harm, punish and frighten, can be perpetrated within intimate and family abusive relationships. The offence of controlling or coercive behaviour applies, as it stands, to those who are personally connected. That means that it applies to intimate partners regardless of whether they live together, ex-partners who live together, or family members who live together. The offence does not currently apply to ex-partners or family members who do not live together. The rationale behind this is that there are other criminal offences—stalking and harassment—that may be used to prosecute controlling or coercive behaviours post separation, or in cases where family members do not live together. Indeed, the offence of controlling or coercive behaviour was specifically introduced to close a gap in the law with regard to abuse by intimate partners or family members in the same household.

Turning to surviving economic abuse, the noble Baroness, Lady Lister, along with other noble Lords and domestic abuse organisations, rightly highlight that controlling or coercive behaviour often begins, continues or intensifies when the victim and perpetrator no longer live together. They further argue that the stalking and harassment offences are not specifically designed to prosecute this sort of behaviour. Supporters of this amendment also make the point that controlling or coercive behaviour occurs between family members who do not live together, an example being adult children who inflict economic abuse on their elderly parents. Furthermore, as my noble friend Lord Goschen pointed out, the new statutory definition of domestic abuse includes ex-partners among those defined as personally connected and does not have a “living together” requirement. Therefore, an amendment to the controlling or coercive behaviour offence could be seen as conforming to the definition in Part 1 of the Bill.

There are convincing arguments on either side of this debate, and the case for change is not clear-cut. The offence of controlling or coercive behaviour has been in force for just over five years. Consequently, there is only limited evidence on which to build a case for amending the legislation. Given its relative newness, there is also work to be done to further embed the offence throughout the criminal justice system.

Additionally, though not specifically designed to cover controlling or coercive behaviours, the stalking and harassment offence is broad enough that it may apply to post-separation abuse. This includes forms of economic abuse so rightly highlighted by Surviving Economic Abuse. It is also worth noting that the stalking and harassment offence has a maximum sentence of 10 years, whereas for controlling or coercive behaviour it is five years.

The Government are committed to ensuring that any changes to legislation are made on a sound evidential basis. To support this, in 2018 we committed to conducting a review into the controlling or coercive behaviour offence. Though the Home Office has made good progress with the review, it has been unavoidably delayed by the Covid-19 pandemic, which has necessitated refocusing our efforts to support victims throughout this difficult time. We will be publishing the review findings ahead of Report. As the case for change here is not clear-cut, we will continue to consider the evidence for and against change, including the review into the offence, ahead of Report. In coming to a final view, we will reflect very carefully on this debate.

Amendment 171 seeks to repeal what has been labelled by some as the “carer’s defence”, under Section 76(8) to 76(10) of the 2015 Act. This allows for a limited defence where the accused believes that they were acting in the best interests of the victim. The defence is limited as it is not available in cases where the victim fears that violence will be used against them. In addition to believing that he or she was acting in the best interests of the victim, the accused would also need to demonstrate to the court that while their behaviour might have appeared controlling, it was reasonable in all the circumstances of the case. The defence is intended to cover cases where the accused is genuinely acting in the best interests of the victim: for example, if the accused has a caring responsibility for a disabled partner and for medical reasons must compel their partner to take medication or stay at home against their will, for their own protection or well-being. Again, it is important to note that this defence is not available in cases where the victim feared that violence would be used against them.

Supporters of this amendment have put forward three main arguments: first, that it is necessary to protect vulnerable victims who have disabilities or mental health issues from coercion or control; secondly, that the defence has the potential to prolong the abuse of disabled victims and prevent them from accessing equal justice; and, thirdly, that alternative legislation, such as the Mental Capacity Act, may be used by the accused to argue that they were acting in the best interests of the victim. This would render the defence unnecessary. However, the Government consider this defence entirely necessary. There will be specific circumstances in which it is possible that the accused’s behaviour, while it might be considered controlling in a different context, is justified and reasonable given the nature of their caring responsibilities. There is a real risk that, without such a defence, a person may be wrongfully convicted of controlling or coercive behaviour when in fact they were indeed acting in a person’s best interests.

As is the case with all legal defences, it is for the courts and juries to decide merit on a case by case basis, and whether the threshold for the defence has been met or not. There are similar or equivalent defences in Scotland, in Section 6 of the Domestic Abuse (Scotland) Act 2018, and in the proposed new domestic abuse offence in Northern Ireland, in Clause 12 of the Domestic Abuse and Family Proceedings Bill, which has recently completed its passage through the Northern Ireland Assembly.

In conclusion, while I cannot support Amendment 171, I undertake to consider further Amendments 149 and 157. On that basis, I ask the noble Baroness to withdraw her amendment.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I shall speak briefly on this, as I think that the amendment in the name of the noble Baroness, Lady Burt, is one of those that would help to close a little gap in the whole issue. When people think about domestic abuse, they often think about physical abuse, and perhaps about emotional and mental abuse, but tackling economic abuse is just as important if we are to stamp out domestic abuse.

I have signed this amendment, as it is important that the child maintenance system is not misused as a tool of abuse. Domestic abusers must not be allowed to continue their domestic abuse by withholding or reducing their financial support for children. This amendment, like so many of those tabled to this Bill, is a reminder of how multifaceted domestic abuse is, and how abusers will exploit any opportunity they possibly can. We must deny them those opportunities and punish them for what they do.

[Lord Rosser (Lab) [V]]

Amendment 158 in the name of the noble Baroness, Lady Burt of Solihull, would require the Secretary of State to issue guidance to the Child Maintenance Service to tackle the problem of abusers continuing economic abuse by withholding or reducing child maintenance payments. As the noble Baroness, Lady Burt, said, we have just had a debate on the issue of economic abuse post separation, and one of the examples given of such abuse was through the perpetrator failing to pay child maintenance.

Child maintenance is an essential source of income for many single parents in enabling them to meet their children’s basic needs, including food and clothing, and is of particular importance to victims and survivors of economic abuse, who often rely on such payments for economic stability after leaving a perpetrator. Perpetrators of economic abuse are only too aware of this, however, and withholding or unreliably paying child maintenance can be a way in which they continue to control victims and survivors, including post separation. This issue does seem to highlight the importance of agencies such as the Child Maintenance Service that provide front-line services carrying out training to recognise and respond to economic abuse, as a means of domestic abuse, as part of how they operate.

Economic abuse perpetrated through child maintenance is not new, of course; it has been used by perpetrators for some time. However, the coronavirus seems to have exacerbated the situation through providing perpetrators with increased opportunities to interfere with child maintenance payments. During the present pandemic, it has been reported that the Department for Work and Pensions has redeployed a number of Child Maintenance Service staff in order to deal with the spike in universal credit claims. It has been said that this included staff tasked with enforcing or following up child maintenance.

The media have additionally reported that the Child Maintenance Service was accepting verbal evidence from paying parents seeking to stop or reduce payments in relation to their income decreasing during the pandemic, when this would usually require evidencing through documents such as payslips. In their response, could the Government indicate whether there is validity in these reports and what guidance has been issued by the Government to the Child Maintenance Service on tackling the problem of abusers continuing economic abuse by withholding or reducing child maintenance payments—not only prior to but during the pandemic?

We support the noble Baroness, Lady Burt of Solihull, in raising this issue and await the Government’s response.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am grateful to the noble Baroness, Lady Burt of Solihull, for outlining her amendment. I certainly agree with her and all the noble Lords who have spoken that guidance for front-line staff on tackling economic abuse through the withholding or reduction of child maintenance payments is extremely important. I assure her and, I hope, the noble Lord, Lord Rosser, that the Child Maintenance Service takes the issue of domestic abuse extremely seriously and is committed to ensuring that victims of abuse get the help and support that they need to use it safely.

The service has recently substantially strengthened its procedures to support people who are experiencing domestic abuse: in particular, a new programme of domestic abuse training is currently being delivered to all Child Maintenance Service caseworkers. However, before that, the service had already implemented training in this area, designed with input from Women’s Aid. That included: recognising that domestic abuse can take various forms, including physical, psychological, emotional and financial abuse; appropriate signposting to domestic abuse support groups; and advice on contacting the police and, if people did not feel able to do so, asking whether they were content for the Child Maintenance Service to call the police on their behalf. The service has also introduced a complex needs toolkit for its caseworkers which includes clear steps to follow in order to support people who are experiencing abuse. It is regularly reviewed and strengthened on the basis of feedback. The Child Maintenance Service will continue to evaluate the effectiveness of its guidance and training in this area.

Beyond that guidance and training, there are a number of ways in which the Child Maintenance Service responds to cases involving domestic abuse. It might be helpful to outline some of them. They include waiving the application fee for victims of domestic abuse; providing appropriate advice and support to help victims use the service safely and to ensure that there is no unwanted contact between separated parents; acting as an intermediary to facilitate the exchange of bank details and ensuring that no personal information is shared; providing advice on how to set up bank accounts with a centralised sort code, which does not allow victims of abuse to be traced; and providing advice and directing people to a number of specialist domestic abuse support organisations as well as providing advice and information on how they can stay safe.

The Child Maintenance Service also has a range of strong enforcement powers, which can be used against people who consistently refuse to meet their obligations to provide financial support to their children. First, it can make deductions directly from earnings and seize funds directly from a paying parent’s bank account, either as a lump sum or regular payments. We have extended this power to cover joint and certain business accounts, thereby removing the opportunity for paying parents to put their money out of reach. Secondly, it has the capacity to seize goods or force the sale of a non-paying parent’s property. Thirdly, it can seek to have those who wilfully refuse to recognise their obligations either committed to prison or disqualified from driving. Finally, we have also introduced the ability to disqualify non-compliant parents from holding or obtaining a UK passport, which we believe acts as a strong deterrent.

We are therefore confident that the Child Maintenance Service already has sufficient enforcement powers and that it has further strengthened its procedures for supporting people who have suffered domestic abuse. I assure the noble Baroness and all noble Lords who have spoken in this brief but important debate that we will continue to monitor the effectiveness of these enforcement powers and the support that they give. With that assurance, I hope that the noble Baroness will be content to withdraw her amendment.

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We know that domestic abuse is underreported, particularly in the case of male victims. If we are serious about a sea change in our approach to domestic abuse being brought about by the Bill, we should seriously consider this amendment.

[Lord Rosser (Lab) [V]]

This amendment in the name of the noble Baroness, Lady Jones of Moulsecoomb, would add a new clause to the Bill to provide lifetime press anonymity for survivors of domestic abuse. It reflects similar protections for survivors of sexual assault enshrined in the Sexual Offences (Amendment) Act 1992, as the noble Lord, Lord Paddick, said. It prevents identifiable details being published online or in print and creates a new offence for breaching this anonymity.

This issue has risen up the agenda because stories are published in which victims and survivors of domestic abuse, as well as family members and children, are named. When these stories then make their way on to websites, victims have no anonymity but the people who choose to make comments do have anonymity.

Apart from the protection for survivors of sexual assault enshrined in the 1992 Act, I believe the Serious Crime Act 2015 grants anonymity to and protection for victims of female genital mutilation, and the Modern Slavery Act 2015 grants anonymity to victims of any human trafficking offence. If I am right, that is three examples of anonymity given to three categories of victims. If the Government are not enthusiastic about this amendment—which the noble Baroness, Lady Jones of Moulsecoomb, said is a probing amendment—no doubt they will explain in their reply why they consider that survivors of domestic abuse do not require the same protection as survivors of sexual assault, victims of female genital mutilation and victims of any human trafficking offence.

[Lord Wolfson of Tredegar (Con)]

My Lords, I hope I can be relatively brief in my reply—not because the point is not important, nor indeed out of a lack of respect for any of the contributions we have just heard, but because there is a single and critical point, fundamental to the administration of justice, which lies at the heart of this debate.

As the noble Baroness, Lady Jones, explained, this probing amendment is designed to protect the identity of complainants in domestic abuse cases by the automatic application of reporting restrictions from the point when the allegation is made. Although the noble Lord, Lord Paddick, referred us to Article 6(1) of the European Convention on Human Rights, I dare say that the principle of open justice goes back much further than that. We are all familiar with the adage that justice must not only be done, it must be seen to be done. That statement, with which we are all familiar, I am sure, recognises that automatic reporting restrictions of this kind are an exceptional interference with open justice. Therefore, we make those reporting restrictions available only when there is a real need to do so.

The most familiar precedent is in relation to complainants who allege that a sexual offence has been committed against them. In those circumstances, there is a clear justification for preventing the reporting of the complainant’s identity, because there is an overriding need for anonymity to be guaranteed from the outset so that victims of a type of offence that still carries considerable stigma are emboldened to come forward and tell the police. As the noble Lord, Lord Rosser, says, there are a couple of other such other examples in the law, but each of those is an exception to the general rule. We must be very careful, I would suggest, to limit those exceptions to cases where it is demonstrably required. Therefore, while I listened with care to the speech by the noble Lord, Lord Paddick, and his personal and, if I may say, moving testimony, we do not consider that, as a matter of generality, domestic abuse cases in which no sexual offence has been committed fall into the same category such that they require automatic protection in the same way.

However, as a number of noble Lords identified, that does not mean that victims of domestic abuse should be denied anonymity where they both request and need it. The courts have discretionary powers to impose, on application, reporting restrictions prohibiting the naming of a witness, where the court is satisfied that being identified would diminish the quality of that witness’s evidence. I suggest that there is sufficient discretion before the courts to meet cases where reporting restrictions are required. To go further would be an unjustifiable interference with the extremely important principle of open justice.

I hope, therefore, given that this is a probing amendment —and while of course I am always willing to discuss anything with the noble Baroness, Lady Jones—that she will feel able to withdraw her amendment at this stage.

Domestic Abuse Bill

Lord Rosser Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 3rd February 2021 Lords Chamber

[Lord Rosser (Lab) [V]]

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.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

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.

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Moved by

[Lord Rosser]

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.

[Lord Rosser (Lab) (V)]

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.

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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.

[Lord Rosser (Lab) [V]]

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.

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Moved by

[Lord Rosser]

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.

[Lord Rosser (Lab) [V]]

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.

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I congratulate the noble Lord, Lord Rosser, on the excellent way in which he has presented the amendment 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.

--- Later in debate ---

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.

[Lord Rosser (Lab) [V]]

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.

--- Later in debate ---

Moved by

[Lord Rosser]

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.

[Lord Rosser (Lab) [V]]

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.

--- Later in debate ---

Amendment 130A (to Amendment 130) withdrawn.

[Lord Rosser (Lab) [V]]

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 Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)]

The noble Lord was entitled to speak. He was just left off the list inadvertently.

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[Baroness Bertin (Con)]

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 be encouraged.

By formalising the refuge office address as the alternative route to service, providers will understand that they have a duty to locate the mother as soon as possible and will not be faced with a serious conflict in doing so. Unfortunately, the cases that I have outlined demonstrate that the existing safeguards are not adequate. We cannot say with confidence that refuge addresses will always be appropriately protected. I believe that the practice on the ground is not consistent with what is intended by the Family Procedure Rules, which therefore require strengthening and updating.

In addition, alleged perpetrators do not state in their application that domestic abuse is involved in their case and, as such, the court may not always have the full picture of each case. It may not be able to assess the risk of sharing the refuge address and may not be aware that that information should absolutely not be shared—unusual though that may be. In some cases, the courts do not know about the victim’s allegations until after the order has been served and the damage has been done. The existing provisions for the confidentiality of addresses in domestic abuse cases can therefore be easily circumvented.

This is a probing amendment that seeks to understand the Government’s response to these occasional but none the less unacceptable lapses in confidentiality. I beg to move.

[Lord Rosser (Lab) (V)]

My Lords, the case for the protection of a refuge address has been made eloquently by the noble Baroness, Lady Bertin. Refuges are places of safety and the sharing of a refuge address is a clear risk to both the survivors of abuse and the staff operating the service. It simply should not happen.

Amendment 132, in the name of my noble friend Lord Ponsonby of Shulbrede and the noble Baroness, Lady Newlove, deals with the issue of the sharing of information, or indeed the lack of it that currently occurs. We recognise that the drafting may not be perfect, but the aim of the amendment is to put a duty on courts of all jurisdictions to share information where the same victim or complainant of abuse is involved in multiple proceedings in which the other party is or is linked to the perpetrator of the abuse.

The impact of silo working and the lack of information sharing between agencies and the different parts of the justice system were highlighted in the Ministry of Justice harm review as a significant barrier to the effective tackling of abuse. In particular, the review raised the fact that different approaches and a lack of information sharing could lead different courts to reach conflicting and contradictory decisions, including, for example, risk assessments and indicators recognised in the criminal courts not being similarly recognised and responded to in the family court. This issue is often raised and perhaps we all tend to nod our heads, yet we have seen little improvement. I look forward to hearing from the Minister what the Government are doing or intend to do to prevent silo working and to improve the sharing of necessary and relevant information in these cases.

Transforming Rehabilitation

Lord Rosser Excerpts

Wednesday 9th January 2013 Lords Chamber

[Lord Rosser]

I thank the Minister for repeating the Statement made in the other place by the Secretary of State and offer him my congratulations that he has not apparently joined the current exodus from the government Front Bench. Clearly, he does not yet feel in need of rehabilitation outside this House.

I am also grateful for having had prior sight of the Statement repeated by the Minister, which is more than the courtesy that was extended to my colleague, the shadow Minister of Justice in the House of Commons.

The Government have issued a consultation document but today appear to have made clear their chosen method of achieving what I am sure we would all agree is an important objective: namely, further reductions in the rate of reoffending. The crime rate fell throughout the period of office of the previous Government, which suggests, first, that that Government were effective in addressing the incidence of crime; and that the agencies involved, including the probation service, were doing a good job. The probation service is staffed by committed professionals who help to keep our communities safe. This was recognised by the fact that, in 2011, it was awarded the British Quality Foundation gold medal for excellence and in that year the performance of every single probation trust was rated by the Government as either good or exceptional.

Can the Minister clear up one point? It has been suggested to me that, earlier today, the Secretary of State made the statement that he wanted to professionalise the probation service. On the face of it, that would seem an extraordinary thing to say and I would be very grateful if, when he comes to respond, the Minister could confirm that the Secretary of State made no such statement.

The Minister is a great admirer of the probation service. On 30 October, he told us:

“I am a lifelong admirer of the probation service and am in awe of the responsibilities that our probation officers take on. I cannot imagine that any future structure would not draw on the experience and ethos that makes it such an excellent service”. —[Official Report, 30/10/12; col. 549.]

In the light of the Minister’s statement just over two and a half months ago that the probation service is excellent and that he is in awe of the responsibilities that probation officers take on, do the Government’s intentions involve taking any work currently undertaken by probation officers and probation support officers away from them? Or do the Government’s proposals represent an extension of rehabilitation work involving the private and voluntary sectors which will not lead to any noticeable reduction in the number of probation officers and probation support officers?

For some time now, the probation service has been working in partnership with the private sector and voluntary groups. There is already excellent work taking place in partnership around the country. Bringing in outside experience and innovation and working together in partnership to reduce reoffending is not something new. However, to what extent do the Government intend that true partnership continues? To what extent do they envisage the wholesale transfer of key areas of probation service work to the private and voluntary sectors—in other words, straight outsourcing? If the latter is the case, is it the Government’s view that the private and voluntary sectors are more effective and efficient than the probation service—which the Minister so rightly admires and respects—or do the Government believe that it can be done more cheaply outside the probation service, perhaps because those involved in the rehabilitation work will be paid less?

It was with a view to looking for new ways to address the issue of reoffending that the previous Government began a pilot of a payment-by-results model in Peterborough. This was presumably why the previous Secretary of State launched two payment-by-results pilots in probation trusts. It is, of course, right to test properly and try out fundamentally new ways of working, because there is no history in criminal justice of payment by results. Interestingly, however, the Secretary of State chose to cancel the two payment-by-results pilots set up by his predecessor. Can the Minister tell us why? To the best of my knowledge, no proper evaluation has been carried out of the success, or otherwise, of those two pilots. Indeed, no proper evaluation has yet been carried out of the Peterborough pilot. What is the hard, evaluated, published evidence on which the Government are basing their intentions?

The current Secretary of State has form when it comes to introducing payment-by-results schemes that have not been properly tested and evaluated. He clearly prefers gut instinct or ideology over hard evidence. The current Secretary of State was responsible for the Work Programme, which involves payment by results. Payment by results is precisely what we are seeing: a lot of payment and few results. According to the National Audit Office, which presumably has a fair idea of what it is talking about, of the 800,000 people who started the Work Programme, only 3.5% were still in work after six months and not a single provider had hit their target. Indeed, there seems to have been a lot of subcontracting going on in the Work Programme which makes it much more difficult to identify where the responsibility lies for failing to perform. This is a factor that needs to be looked at when assessing the Government’s intentions for payment by results in our criminal justice system. It is also no secret that increasing numbers of smaller companies are walking away from involvement in the Work Programme, and that factor ought also to be borne in mind when considering the Government’s proposals on probation and rehabilitation and an intention to have greater involvement of smaller organisations including those in the voluntary sector. Where will accountability lie under the Government’s stated intentions, particularly in a situation where there may be considerable subcontracting?

The Secretary of State is proposing that only low and medium-risk offenders will be dealt with by private companies. Can the Minister confirm that medium-risk offenders include those who have committed domestic violence and burglary? Why is it that if the Secretary of State has confidence in probation retaining supervision of high-risk offenders, he does not have confidence in it to supervise low and medium-risk offenders? Is it, in reality, all about reducing costs rather than rehabilitation and further reducing reoffending?

Given that one in four offenders’ risk level fluctuates during their term on licence, is the Minister satisfied that the payment-by-results model will be able to take that into account? In that regard, how does he propose that the police and other public bodies share with the private sector their sensitive information about offenders with whom they have dealings?

The Secretary of State is seeking to increase the level and extent of supervisions and rehabilitation of offenders, and no one would disagree with that as an objective. However, is this all to be done within existing budgeted and planned levels of resources, not least financial resources? Or is it the intention at some later date to provide an increase in resources? If it is the intention that there will be no extra resources, what will happen if existing resources prove to be insufficient to achieve the Government’s intentions?

Finally, if the Government move significant chunks of rehabilitation work and reoffending reduction work currently carried out by the public sector probation service into the private and voluntary sector, will that work continue to be subject to the provisions of the Freedom of Information Act, or will the changes that the Government clearly intend to make mean, as far as this part of the criminal justice system is concerned, that we will be moving to a more secretive and less transparent operation, with less information being available in the public domain? Can the Minister give a cast-iron guarantee that in the Government’s proposals there will be no reduction in the areas or extent of activity covered by the Freedom of Information Act?

We support the objective of seeking further to reduce reoffending. However, the devil is in the detail and the means. We will look carefully at the consultation document and hope that it provides reassurances that have been sadly missing from the Secretary of State’s Statement.

Crime and Courts Bill [HL]

Lord Rosser Excerpts

Tuesday 18th December 2012 Lords Chamber

[Lord Rosser]

My Lords, given that this is Third Reading, I will attempt to be reasonably brief. I want to talk separately to the two amendments in the group.

We support the principle behind Amendment 10, given that it is clearly designed to enhance the prospects of rehabilitation and reduce reoffending. That amendment is, no doubt, prompted by the fact that many child-focused support services fall away when young people reach the age of 18. Our reservation relates to the potential cost of delivering the services called for in that amendment because it seems to be a little open-ended, unlike the amendment on female offenders, which is more specific.

The first part of Amendment 10 requires each probation trust,

“to make appropriate provision for the delivery of services to young adult offenders”,

and goes on to say that this,

“shall include provision for services which provide support and rehabilitation appropriate to the level of maturity of young adult offenders and which increases the likelihood of compliance with community orders”.

In other words, it would appear that these services will either be in addition to community orders or be extensions of community orders, because that amendment refers to these services increasing,

“the likelihood of compliance with community orders”.

It is not clear what these services will be and whether they are likely to involve a significant, or potentially significant, financial commitment going well beyond existing and projected levels of expenditure.

The issue raised by Amendment 10 is important and will, no doubt, receive further consideration when the Bill reaches the other place, including on the financial and resource commitments that would or would not be involved. However, because we do not have a feel for the cost of implementing that amendment in a way necessary to achieve the objectives referred to by the noble Lord, Lord Ramsbotham, we are not able to give it our support tonight and will abstain if it is put to a vote.

Turning to Amendment 9, we had a discussion on Report about provision for female offenders. In his response, the Minister reiterated what the Government have been doing in this field and then stated that they would no longer be publishing their strategic objectives for female offenders by the end of this year, which the noble Lord had indicated in Committee was the intention, due apparently to change of Secretary of State in September. The noble Lord told us that the delay was good news, which presumably means that if the Government had kept to their declared intention, as stated by the Minister in Committee, it would not be such good news.

The Minister’s argument for rejecting the amendments moved by two of his noble friends on Report was not one of cost—indeed, he told us of additional money being provided for the funding of women’s community services—but was simply because he did not think that the present situation would be improved by a statutory commitment on provision for female offenders, as provided for in those amendments. As has already been commented on, the noble Lord went on to say that some of his colleagues had an ability to look gift horses in the mouth. He did not tell us why the situation would not be improved by a statutory commitment. There is a body of opinion in your Lordships’ House that thinks that a statutory commitment in a Bill—with a schedule on dealing non-custodially with offenders that makes no specific reference to, or provision for, women, and with NOMS funding for women’s centres guaranteed only until March 2013—will be far more effective than soothing words and sincere good intentions in ensuring that appropriate provision for female offenders is made, now and in the future, through agreeing to the amendment. We support it and will do so, should it be put to a vote.

Crime and Courts Bill [HL]

Lord Rosser Excerpts

Monday 10th December 2012 Lords Chamber

This is a very important time for restorative justice and all those likely to benefit from it. I look forward to hearing confirmation from the Government that they, too, are confident in their commitment to taking this new way of working forward. I beg to move.

[Lord Rosser]

My Lords, briefly, we await with interest the Government’s response. Certainly, the amendment would appear to fill in a gap in this part of the Bill, since one’s understanding of restorative justice was that it was at least as important, if not more important, for the victim as it was for the offender. Yet while the relevant clause provides for participating,

“in an activity … where the participants consist of … the offender and one or more of the victims”,

it then goes on to say,

“which aims to maximise the offender’s awareness of the impact of the offending concerned on the victims”.

It would appear as though the view in this part of the Bill is that the offender’s needs and awareness are regarded as rather more important than those of the victim or victims. I conclude by saying that my understanding of restorative justice is that it is there for the benefit of the victims at least as much as, if not more than, that of offenders.

[Lord Ahmad of Wimbledon]

My Lords, I welcome the enthusiasm and support for restorative justice from across the House. Indeed, at the recommital stage of the Bill my noble friend Lady Linklater moved an amendment in relation to pre-sentence restorative justice. That amendment added an explicit reference to restorative justice meeting the needs of the victim.

Her Majesty’s Government entirely agree that RJ, when used appropriately, can be an extremely positive experience for victims. For example, our own research has shown that 85% of victims participating in direct RJ conferencing with their offenders were satisfied. We therefore gave an undertaking to consider the amendment in advance of Report. I assure the House that we are fully supportive of the intention behind the amendment. We consider that the phrase,

“meet the needs of the victim”,

needs more explicitly to reflect the benefits provided by restorative justice. Victims may have many needs as a result of a crime, and we should be clear about which of them RJ may meet.

I am sure that noble Lords will agree that one of the most important benefits of RJ is to give victims a voice in the criminal justice system. The amendment therefore seeks to reflect this. It puts an equal emphasis on victims and offenders in defining RJ requirements by focusing on victims’ need to have their voice heard. It also seeks to cover the different ways in which victims might want to express themselves. The phrase, “talk about” seems to us a direct and simple way of describing what might happen in the majority of cases—victims talking at a face-to-face meeting or mediation about the impact of the offending. The words,

“or by other means express experience of”,

is intended to cover other ways of sharing experience, thoughts and feelings.

In short, we appreciate that some victims may be too traumatised, or otherwise unable or unwilling, to talk about their experience. Instead, they may want to express their feelings in writing or drawing, or through other means. We therefore believe that the amendment will strengthen the role of victims in the restorative justice process. In the light of this, the Government propose to accept the amendment.

--- Later in debate ---

[The Earl of Listowel]

My Lords, as treasurer of the Parliamentary Group for Children, I feel particularly concerned about this Question. I am also particularly grateful for, and pleased to learn about, the investment that the Government are making in these centres—prisons without walls, as the noble Baroness, Lady Corston, called them in her report. I feel, with her, that if we are going to make a difference in this area, we need to put the position of women on a statutory basis. It may be helpful if I quote some statistics about women and families from the Corston report. It reveals that 34% of women in prison are lone parents. Around two-thirds of women were living with their children before they came to prison. One-third had a child under five. Only 9% of children whose mothers are in prison are cared for by their fathers. Around 18,000 children each year are separated from their mothers by imprisonment. Only 5% of women prisoners’ children remain in their home when their mother has been sentenced to custody. As many as 25% are cared for by grandmothers, 29% by other family members or friends, and 12% are in care, with foster parents or adopted.

The noble Baroness, Lady Corston, goes on to say:

“One of the most alarming statistics that I have seen reported appears in the Revolving Doors Agency’s survey in which 1,400 women serving their first sentence in Holloway were interviewed. 42 women had no idea who was looking after their children. Quite apart from the dreadful possibility that these children might not be in a safe environment, this must cause mothers great distress and have deleterious consequences for their mental health”.

I am very grateful to the previous Government for their response to the Corston report and for the current Government’s work in this area, but I hope the Minister responds to the request for a statutory basis for women in the probation area.

[Lord Rosser]

My Lords, in her report a few years ago my noble friend Lady Corston drew attention to the reality that existing provisions, both in prison and in the community, are largely geared to male offenders and the needs of male offenders. The Corston report called for separate services, locally available, geared to the needs of women offenders in order to reduce as far as possible the disruption to family life and the impact on children The needs of their children and families have a considerable bearing on the ability of women offenders to attend programmes and avoid breaches of the order, and on the effectiveness of those programmes in having a positive impact on reducing reoffending. My noble friend’s report also drew attention to the number of female offenders in prison who had been, or were, the victims of domestic violence and sexual abuse, which are not normally issues that have to be taken into account by providers of services, or addressed by the skills they have to provide for male offenders.

A recent joint inspection report on alternatives to custody for women offenders highlighted the lack of women-specific provision for unpaid work and offending behaviour programmes, though it also said that women-only provision where available was often very successful. Investment in credible and appropriate alternatives to custody for women is essential. Programmes should be specifically designed for female offenders and address their needs. As well as reducing reoffending, community sentences designed specifically for women should help reduce the rate of breach as they should be capable of better fitting with women’s needs and responsibilities.

Schedule 16, dealing non-custodially with offenders, actually makes no specific provision or reference to women. The amendments seek to address these concerns by ensuring that probation trusts are required to make appropriate provision for the delivery of services to female offenders that will include provision for women to carry out unpaid work and participate in programmes designed to change offending behaviour with the particular needs of women in mind. I hope the Minister will accept this group of amendments and recognise the significant gap created by the absence of specially tailored arrangements for dealing with women offenders, most of whom, as has already been said, have committed non-violent offences, and whose sentences if they end up in prison can lead to the break-up of families, with potentially disastrous consequences for all concerned, not least the children who can end up having to go into care.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, we are fully aware of the point that the noble Lord, Lord Rosser, made in closing. One of the special factors about women in the criminal justice system and in prison is that the impact of their incarceration is an impact not only on themselves but also on their children and their families. For that reason, the Government have taken the Corston report of 2007 very much as the template of their approach to women. I have benefited from having a number of conversations with the noble Baroness, Lady Corston, over the past couple of years about the implementation and carrying forward of the report. I know that my colleague Helen Grant has also met the noble Baroness to discuss these issues.

It is interesting to note that the Government accepted 40 out of the 43 recommendations in the Corston report and made a range of commitments across government departments to take them forward. There have been real improvements in the past five years under successive Governments, including significant investment in women’s community centres to address holistically the underlying causes of women’s offending such as drug and alcohol addiction, mental health issues and histories of abuse.

The female prison estate was reduced by 400 places with the closure last year of HM Prison Morton Hall. We have about 4,000 women still in prison. However, the cross-government strategy includes: piloting and, subject to business case approval, rolling out liaison and diversion services in police custody and the courts by 2014; the piloting of drug recovery wings for drug and alcohol-misusing prisoners at three women’s prisons—New Hall, Askham Grange and Styal—and the development of intensive treatment-based alternatives to custody for offenders with drug or mental health problems, including four women-only services at Wirral, Bristol, Birmingham and Tyneside. In addition, there is the implementation of particular provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 with regard to remand and breach, which are expected to reduce the number of women in custody, and the delivery of the Home Office-led Call to End Violence Against Women and Girls, which will address the high levels of abuse experienced by female offenders. The commissioning of women’s services, including women’s community services, has been devolved to local probation trusts to ensure that provision is integrated into local services. This year’s £3.78 million of funding is now embedded in NOMS’ community budget baselines to allow for continued support of provision for women.

As I indicated in Committee when we last considered the issue, I fully agree with noble Lords that it is important that the criminal justice system is properly responsive to the needs of female offenders. I share the view that it is also essential that we take account of women’s experiences and needs. That is why I am pleased that the National Offender Management Service is still rolling out the Women Awareness Staff Programme, currently with a focus on training the trainers, so that they can provide support to staff and voluntary and community sector partners working with female offenders. This covers issues such as self-harm, relationships and abuse, and is complementary to the Women’s Aid best practice framework, Supporting Women Offenders Who Have Experienced Domestic and Sexual Violence.

I am also pleased to confirm that the National Offender Management Service has been working to develop the evidence base around what works with female offenders. Over the coming year, this work will support the strategic approach to female offenders as set out in the National Offender Management Service’s Commissioning Intentions discussion document, published in October of this year. All probation trusts are required by the National Offender Management Service’s Commissioning Intentions document to make appropriate provision for women in the community to address factors associated with their reoffending, using third sector and private sector services, where appropriate.

The National Offender Management Service has also published information on the specific needs of women to support the commissioning of relevant offender services for this group as part of the commissioning round for 2012-13. Already probation trusts across the country are coming up with innovative, new approaches to working with women that reflect the local situation. There are many good examples of women-only provision in the community. For example, Nelson Probation Office in Lancashire has a women-only reporting day. In Durham in the Tees Valley, the trust provides women-only reporting centres in each of the six local delivery units, with community based support and childcare provision located at these points. In Derby, there is a women-specific programme addressing violent behaviour.

--- Later in debate ---

Moved by

[Lord Rosser]

115B: Schedule 16, page 260, line 24, at end insert—
“Part 8Reorganisation of the National Probation Service1 The Offender Management Act 2007 is amended as follows.
2 After section 15 insert—
“15A Power to reorganise the National Probation Service
(1) Any plans to reorganise the Probation Service for England and Wales must be instituted by regulations.
(2) Regulations under subsection (1) shall be subject to the affirmative resolution procedure of each House of Parliament.””

[Lord Rosser]

This amendment is similar to one that I tabled in Committee in order to give the Minister the opportunity to say more about the Government’s intentions for the future of the probation service. The amendment states that:

“Any plans to reorganise the Probation Service for England and Wales must be instituted by regulations”.

It adds that those regulations,

“shall be subject to the affirmative resolution procedure of each House of Parliament”.

Bearing in mind that in this Bill we are asked to agree to significant changes in community sentencing, which will be dependent on an effective and properly resourced probation service, the Government still cannot tell us what their intentions are for the probation service. It therefore does not seem unreasonable to agree to this amendment, which will enable both Houses to satisfy themselves that whatever changes the Government want to make to our probation service, they would not be in conflict with their objectives and changes on community sentencing contained in the Bill.

--- Later in debate ---

[Lord McNally]

My Lords, I am not sure I shall be able to help the noble Lord, Lord Rosser; he asks lots of questions, most of which do not have a great deal to do with the Bill but have a lot to do with the Government’s declared intention to reform the probation service. We have certainly made no secret of that; indeed, he will be familiar with our consultation paper, Punishment and Reform: Effective Probation Services. He will be aware that this was the first step in determining our approach to how reform is delivered. Further consideration is under way to determine how best to meet the requirements of a probation service that delivers rehabilitation outcomes. We are in the process of carefully considering the way forward and will announce further details of our plans shortly. As I indicated previously, we will be keen to engage with probation staff, representative groups and all those who can make a contribution to the success of this important area of work.

It is interesting—I think I have explained this before to the noble Lord—that the reason why the powers to do all this are not in this or any future Bill is because they are within the powers of the Offender Management Act 2007. During the passage of that Act, there was a debate on the merits of parliamentary scrutiny when establishing, amending and dissolving probation trusts. In the Bill as originally published, no parliamentary procedure applied to the power in Clause 5(1) to establish, alter the name or purpose of, or dissolve a probation trust. The Delegated Powers and Regulatory Reform Committee noted that precedents existed for that, but felt that it lacked sufficient information about how trusts were to be established to make a recommendation about its appropriateness in this context. The committee therefore drew the matter to the attention of the House. In light of the debates on this subject, the previous Administration accepted on the floor of the House that this important power should be subject to parliamentary procedure. The noble and learned Baroness, Lady Scotland of Asthal, asserted that the affirmative procedure would be excessive but tabled a government amendment introducing a negative procedure, which was accepted by this House. On that basis, the Government believe that the parliamentary scrutiny set out in the Offender Management Act 2007 is adequate and we share the view taken by the previous Administration that the affirmative procedure would be excessive. I therefore ask the noble Lord, Lord Rosser, to withdraw his amendment.

[Lord Rosser]

I thank the Minister for that reply. He started off seeking to suggest that the issue raised in the amendment is not really relevant to this Bill, but it certainly is. The Bill seeks to make significant changes to community sentencing and the delivery of those services will be dependent on an effective and properly resourced probation service. It will not be particularly easy to deliver those changes in relation to community sentencing—of course the changes also cover restorative justice and the role of rehabilitation in reducing reoffending—if at the same time it is the Government’s intention to, metaphorically speaking, turn the probation service upside down. That must clearly be a relevant issue in the Bill. Is the probation service geared, both at the present time and in future, to delivering the objectives and changes that the Government wish to make in community sentencing?

The Minister made reference to the 2007 Act. I appreciate that it is his prerogative if he wishes to express an alternative view, but I do not think that the kind of transfer or apparent transfer of responsibilities away from the probation service that seems to be envisaged at the moment was envisaged at the time of the 2007 Act. Obviously, it is the potential implications of what the Government may be putting forward that have led to this amendment calling for the affirmative procedure to be used. I am sorry that the Minister has not been able to give any assurances at all about the extent to which the existing probation service will continue in being. He has not been able to give any assurances about what responsibilities may or will not be transferred away from the existing probation service. Indeed, put bluntly, he has not really been prepared to say anything at all, which will certainly do nothing to damp down some of the concerns over what the Government’s real intentions are. I appreciate that the Minister is not going to say any more so I have little alternative but to leave it at that. I beg leave to withdraw.

Amendment 115B withdrawn.

Crime and Courts Bill [HL]

Lord Rosser Excerpts

Monday 10th December 2012 Lords Chamber

[Lord Ramsbotham]

My Lords, I was concerned that timing might be against us getting to this point this evening, because I have an unavoidable engagement to which I must go. Having looked at what was said on the amendments in this group, both at the recommitment and in Committee, I do not feel that there is much more that I need to add. My concern about what is included in the section that I am seeking to have removed is that it is based on perception and not on fact. For example, I learn today that 50% of all cases involving violence are now dealt with outside the courts, which suggests that there is some confusion over where violence should be dealt with. I am very concerned that the word “punishment” should be added like this, because from talking to magistrates and others I know that they are already quite clear what their duty is in terms of the sentences that they have to impose. What we are talking about here is not so much the need to add this initiative to sentencing but looking at and seeing what is actually done with and for those people who receive the sentence.

As I have said before, we are in the dark here because we simply do not know what the Secretary of State has in mind. We have not yet seen the terms of the government response to the probation consultation. We understand that there are going to be commissioners all over the country commissioning community sentences, although we do not know whether they are going to come from the probation service, the voluntary sector, the private sector or whatever. We are in the dark and, frankly, I think it is a great pity that something like this should be left in such an imprecise state. That is why I wish to see the thing removed. There is so much work to be done in this area. Anything that needs to be done should be brought back after further work on the whole area, including study of the probation consultation, has taken place. I beg to move.

[Lord Rosser]

My Lords, we have an amendment in this group. It is interesting that the Government’s response to the consultation on effective community sentences states:

“We will legislate to place a duty on courts to include in the community order a requirement that fulfils the purpose of punishment for the offender. The court will be able to exercise this duty by imposing a fine instead if it considers that to be appropriate. While we will not specify what requirements courts should impose, on the basis that what is punitive for one offender may not be punitive for another, our expectation is that these would generally be restrictions of liberty that represent to the public a recognisable sanction (such as curfews, exclusion, or community payback). The duty will provide for an exemption in exceptional circumstances where it would be unjust to impose a punitive element”.

The Government’s response refers to restrictions of liberty such as curfews, exclusion or community payback. The use of the words “such as” implies that a court could impose other requirements that would be regarded as restrictions of liberty. Can the Minister confirm if that is the case? What might the other restrictions of liberty be that would be regarded as punitive? Will he also confirm that if a court imposed as a punitive element something other than a curfew, exclusion, community payback or a fine, that would not be regarded as acting outside the terms of this Bill?

The Government’s response to the consultation on effective community sentencing also refers to a punitive element being a restriction of liberty that represents, to the public, a recognisable sanction. Who is to determine what represents to the public a recognisable sanction? Will it be for the court to decide? If it decides that a punitive element is something other than a curfew, exclusion, community payback or fine, will the court, whether the original court or an appeal court, be regarded as having acted outside the terms of the Bill?

Even the Government’s own response to the consultation states that nearly all respondents indicated that offenders with mental health issues should be excluded from a mandatory punitive element and that many suggested that offenders with learning difficulties, those unable to carry out a punitive requirement because of poor health or addiction, those with personality disorders and young adults with low maturity should also be excluded. Does the Minister also hold that view, and would the number of such offenders exceed the 5% that it has been widely suggested would be the percentage the courts might feel able to regard as covered by the definition of “exceptional circumstances” laid down in the Bill and thus exempt from the Government’s definition of a punitive element?

One rather assumes that the Government’s approach is conditioned by the kind of recent statement made by the Secretary of State for Justice, that he shares public concern that offenders given community sentences often feel they are getting away with it; that they have been slapped on the wrist rather than properly punished. However, if that is the case, who is it giving that impression to the public other than politicians who make statements like that rather than spelling out just what a community sentence is? Two-thirds already include a punitive element, on the Government’s apparent definition.

Published research on short custodial sentences found that many prisoners preferred short sentences over community sentences because they found the latter more challenging. Does the Minister agree or disagree with those findings by the Howard League? Why does he take the view that a rehabilitation element in a community order cannot be at least as challenging to an offender, if not more challenging, than the Government’s version of what constitutes a punitive element?

For someone who has an addiction, learning difficulties or low maturity, or has led or been allowed to lead a thoroughly dysfunctional and disorganised life, having to face up to the realities of their lifestyle or situation through a challenging programme that they have to attend at specific laid-down times as instructed and co-operate with, or else risk being taken back to court and sentenced in another way, is at least as difficult as doing community payback or paying a fine related to their means. Yet that apparently is not the view of the Minister. Perhaps he could explain why that is not his view. I hope that he will be able to get a bit further than telling us it is because that is not the view of the tabloid press.

If the current position were changed and virtually all community sentences included a punitive element along the lines that the Government appear to be trying to enforce, does the Minister accept that that could be at the expense of rehabilitation elements in a community order? If a punitive element had to be included in an order that currently incorporates what the Government regard as only a non-punitive element, will the Government be providing additional resources to the probation services to cover the cost of this additional requirement, or will probation service budgets be left as they are so that, in order to remain within budget, those services may have to drop the rehabilitation element from the order to enable the cost of the additional punitive element to be paid for within the laid-down budget? What reassurances can the Minister give that this will not happen? The loss of the rehabilitation element in the order where deemed necessary will not contribute anything towards reducing reoffending.

The fact that the Minister does not appear to regard community order requirements involving challenging programmes for rehabilitation as at least on a par, in terms of restrictions on liberty and difficulty for offenders, with unpaid work in the community, a curfew or a fine—which are about the only things the Minister regards as in any way imposing a restriction on liberty—is a step backwards and simply seems to confirm, not challenge, the view that community orders are “soft”. Where unpaid work, a curfew or a fine is appropriate, that is what the offender should be given, but not where it would be inappropriate. The reality is that the Minister has decided that in some 95% of cases involving a community order as a sentence, unpaid work, a curfew or a fine is appropriate. It is usual to hear the facts of a case before coming to a conclusion on what is the appropriate sentence, but that is not what the Government are doing as they seek to specify what must be included in a community order in 95% of cases.

The Government appear to have lost confidence in the courts at a time when crime is falling, without explaining why, other than their own unwillingness to challenge the perception they believe the public hold that current community orders are soft. The reality is that the most important thing the public want to see delivered by a sentence is a reduction in reoffending, and an end to reoffending by the offender. I hope that even at this late stage the Minister will be prepared to change his stance, or at least review it, and support my amendment, which includes a range of existing programmes and orders as being within the Government’s punishment requirement in the Bill.

[Lord Woolf]

My Lords, I have difficulty with these provisions, for very much the same reasons as my noble friend Lord Ramsbotham and the noble Lord, Lord Rosser.

I have put forward amendments myself because I feel that if we are not going to have the clean solution proposed by the noble Lord, Lord Ramsbotham, of just getting rid of these provisions—which would certainly achieve everything I want—we have to try more delicate and specific surgery to produce something that the courts can apply practically. To an extent, the amendment in the name of the noble Lord, Lord Rosser, helps in that regard, so as an alternative I would be prepared to accept that.

To clarify my reasoning, proposed new subsection (2A) of Section 177 of the Criminal Justice Act 2003 reads:

“Where the court makes a community order, the court must … include in the order at least one requirement imposed for the purpose of punishment”.

Whether the requirement is imposed for the purpose of punishment or for some other purpose is presumably to be decided by the judge. Under our law, once a person has been convicted, it is the judge’s task to decide what punishment is appropriate. If he comes to the view that it does involve punishment, I would like the Minister to confirm—if I am correct—that the view of the judge will be respected and it is not suggested by the Government that that is a matter with which a higher court would interfere. On the other hand, if that is not so and the decision as to whether the requirement has been imposed for the purposes of punishment is to be made objectively, I would like the Minister to assist me as to what criteria it is to be judged by. If I were that judge, my ordinary reading would be that as these community sentences are imposed as part of the sentencing process, they are all part of the punishment that the court considers appropriate.

My general contention is that we have to have clarity as to what is to happen. Assuming what I have said is not right, who determines the punishment? Does the defendant who is banned from attending a football match determine it or does the court? I am happy to see that the Minister may well be agreeing with me—at least on that matter—but if it is the court, that must be clearly set out.

Crime and Courts Bill [HL]

Lord Rosser Excerpts

Tuesday 13th November 2012 Lords Chamber

[Lord Ponsonby of Shulbrede]

My Lords, I support the gist of the amendments as they have been spoken to. I apologise to the Committee for turning up a bit late for this important debate. I emphasise the point made by the noble and learned Baroness, Lady Butler-Sloss, that the sentence itself is the punishment, if one wants to use that word, rather than necessarily the elements within the sentence.

We recently dealt with the Legal Aid, Sentencing and Punishment of Offenders Bill and the relevant training for magistrates and sentencers up and down the country is under way right now. In that training sentencers are told that suspended sentences could have no requirements at all, so that the suspended sentence is itself the punishment for the offence rather than any requirements that may be added by the sentencing Bench. In my view this clearly shows that the Government also agree that the sentence itself is the punishment and that there is no requirement at all in certain, admittedly rather unusual, circumstances for there to be any particular elements to that sentence. Therefore, I do not see what the need is for “punitive” in the first place. I agree with previous speakers that it is a piece of political grandstanding and does not add anything to the Government’s objectives as they are already being rolled out in the training of magistrates in relation to the previous criminal justice Bill.

[Lord Rosser]

My Lords, my Amendment 2 is designed to find out rather more about the reasons behind the Government’s thinking and how paragraph 2 of Schedule 16 is to be interpreted. The schedule clearly states that where a court makes a community order that must include,

“at least one requirement imposed for the purpose of punishment, or … a fine”

unless there are exceptional circumstances. The Government have decided that there will be exceptional circumstances in around 5% of cases. It is not clear why the Government are going down this road. Their own impact assessment refers to research that has been undertaken by the Ministry of Justice, as I understand it. The impact assessment states:

“Offenders who receive supervision, punitive requirement (unpaid work or curfew) and a programme requirement were less likely to re-offend and committed fewer re-offences within a 2 year period of the community order, compared to those who receive supervision and a punitive requirement”.

It then goes on to say:

“There was no impact on re-offending of adding a punitive requirement to certain other specified combinations of requirements”.

Finally it says:

“Adding supervision to a standalone punitive requirement reduces re-offending”.

Most people would regard those statements as not exactly a ringing endorsement of the value of a punitive requirement. Further on in their own impact assessment, the Government come out with this statement:

“The Government considers that community orders are currently not sufficiently demanding for offenders”.

Is that all of them? All community orders are not sufficiently demanding? If that is the case, then what do the Government intend to do to make all community orders more demanding, since that does not seem to be referred to in any documentation? I hope the Minister will tell us whether that statement in the impact assessment represents the Government’s view when they say:

“The Government considers that community orders are currently not sufficiently demanding for offenders”.

It does not say some of them. It does not say the third that do not include the punitive element. It just says they are not sufficiently demanding for offenders. The Minister will, no doubt, respond to that point and tell us how the Government intend to make the community orders sufficiently demanding in their view.

It says further on—in paragraph 37 if the Minister is interested—in the impact assessment, which is, as I understand it, the Government’s own document:

“Given the need for community orders to remain proportionate to the offence committed, delivering a clear punitive element to every community order may, in some cases, cause certain requirements to be substituted by punitive ones. The research that we have undertaken does not tell us about the impact on re-offending of replacing requirements with more punitive ones”.

In other words, the Government do not know what the implications of their proposal will be for rehabilitation. Yet they are still proceeding. There is no other interpretation that can be put on that extract from the Government’s own impact assessment.

We have previously raised the issue of the victim surcharge and I would like to talk a little about that. The victim surcharge is for offences committed on or after 1 October this year—the beginning of last month. It will be, with no apparent exceptions, £60 where a community order is given as a sentence to an adult offender. Since for offences committed before 1 October this year there was no requirement to include a victim surcharge where the sentence was a community order, will the victim surcharge of £60—which I believe is now mandatory with a community order—be regarded as the equivalent of a fine, as referred to in proposed new subsection (2A) in paragraph 2 of Schedule 16? If it is, we need not concern ourselves much more with this part of Schedule 16, since every community order will automatically include what is, in effect, a fine, albeit called a victim surcharge, and meet the requirement to include at least one requirement imposed for the purpose of punishment or the imposition of a fine.

If the new £60 victim surcharge for an adult offender, and £15 for a youth offender, which has, I think, just been made mandatory where a community order is imposed, is not to be regarded as a fine under proposed new subsection (2A) in paragraph 2 of Schedule 16, then why not? From the point of view of the offender, the effect is still the same whether it is a £60 fine or a £60 victim surcharge. They still have to pay the money or run the distinct risk of more severe action being taken, including the possible loss of liberty. This £60 victim surcharge is a new penalty to be paid by the offender, since it applies only to offences committed since the beginning of last month. It was not in existence at the time the Bill was being drafted. Has the victim surcharge of £60 to be imposed where there is a community order changed the situation and if not why, why not?

We have a situation at the moment under the Bill where presumably the court, with a so-called non-punishment community order, could levy a very small fine of, say, £15, because of the financial circumstances of the offender. That fine would be deemed to be the equivalent of a punishment under proposed new subsection (2A). The court would then have to impose a victim surcharge of £60—some four times higher than the £15 fine, which could cause the offender much greater difficulty in terms of payment. However, that would not be deemed a punishment under the terms of the proposed new subsection. That does not appear to make a lot of sense or have much logic behind it.

The wording of our amendment, which substitutes “may” for “must” would, among other things, enable the court to decide that the £60 victim surcharge, which is payable when a community order is handed down as the sentence, was sufficient as a punishment element, and the court would not also be required to include either a fine or a further requirement imposed for the purpose of punishment, as currently appears to be the case under proposed new subsection (2A).

I do not intend to go over other points. They have been eloquently made, and repetition would achieve nothing. I look forward to hearing the Minister’s response to all the points raised and questions asked in this debate.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, it seems a long time since I was looking forward to us reaching this part of the Bill, where, as noble Lords will recall, we slightly bent the rules—goodness knows what they are now—to allow for Clause 23 to bring in rehabilitation proposals. Of course, in a debate in which a former president of the Supreme Court, a former Lord Chief Justice, a former president of the Family Division and a former Her Majesty’s Inspector of Prisons give their opinions, I listen—as I indeed listened to the noble Baronesses, Lady Howe, Lady Hamwee and Lady Linklater, the noble Lord, Lord Carlile, and particularly the noble Lord, Lord Elystan-Morgan. We had a very interesting discussion about the relationship and power of Parliament and the judiciary. I look forward to reading the noble Lord’s memoirs, which I notice have just been published in Welsh. Have they been published in English? I do not know.

--- Later in debate ---

The noble Lord, Lord Rosser, asked about the victim surcharge. It is not a fine and it is not part of the sentence. It will be regarded as a surcharge for victim services. I hope that I have covered this.

[Lord Rosser]

The noble Lord said that the surcharge was not a fine. Will he confirm that it has to be paid? What happens if it is not paid? Will he confirm that action will be taken, just as it would be with a fine?

[Lord McNally]

Yes, that is exactly the case. However, I also said that the court would be able to use discretion about the circumstances of the individual.

[Lord Rosser]

In 95% of cases it will not, because the Government have already decided that “exceptional circumstances” will apply to only 5% of cases.

[Lord McNally]

I would be interested to know where the Opposition stand on two things. First, with the victim surcharge we intend to raise considerable amounts of money from offenders that will go to victims. I presume that the Opposition are in favour of that. Secondly, we are determined to pursue offenders. I know that, particularly in this House, we always hear about the hard cases—but far too many people who offend and are given fines then do not pay them. We intend to pursue them and make sure that they do pay them.

[Lord Rosser]

We are certainly quite happy for people who do not pay fines to be pursued. I do not know why the Minister raised the issue of what the Opposition think of the victim surcharge. We have never voiced opposition to it. I think that he raised that issue in order to dodge the very direct question that I asked when I put it to him that the victim surcharge is very similar to a fine for the offender. They have got to pay it and if they do not they will be in the same kind of trouble as they would be if they did not pay a fine. The Minister raised the issue of the victim surcharge simply to avoid answering the very direct question that he was asked.

[Lord McNally]

I was asked a direct question and I gave a direct answer. The victim surcharge will be in place, but it is not a fine. That is what the noble Lord asked and that is what I answered. Now I ask the noble Lord, Lord Ramsbotham, to withdraw his amendment.

--- Later in debate ---

Moved by

[Lord Rosser]

3: Schedule 16, page 251, line 2, at end insert—
“(za) have regard to the need to promote rehabilitation,”

[Lord Rosser]

Our amendments in this group include a requirement to promote rehabilitation. This requirement appears to be missing from this part of Schedule 16, despite the words of government Ministers recently that promoting rehabilitation was one of their objectives. Indeed, the Minister waxed lyrical in his response to a debate in Committee by telling us that,

“here we had recently a Conservative Prime Minister talking positively about a rehabilitation revolution. That is very welcome and is something to build on”,—[Official Report, 30/10/12; col. 546.]

not apparently, though, in this schedule as that objective does not seem to be strongly reflected in the terms of the Bill, in particular, in paragraph 2 of Schedule 16. Can the Minister tell us why the Government decided not to make it a requirement on a court when making a community order to also include at least one requirement imposed for the purpose of rehabilitation unless there were exceptional circumstances in line with the provisions in proposed new subsection (2B)? There is not even a requirement, I believe, for a court to consider including at least one requirement imposed for the purpose of rehabilitation.

When we last discussed this matter, the Minister accepted the statistics given by my noble friend Lord Beecham about the nature of people who come into our criminal justice system in relation to educational achievement—or, rather, lack of it—drug and alcohol problems, mental health disorders, having been in care and having been unemployed. Indeed, the Minister has referred to these issues already today.

In his response to the debate in Committee, the Minister said that,

“the prize for getting rehabilitation on to the agenda is extremely important”,—[Official Report, 30/10/12; col. 546.]

but not, apparently, in this part of Schedule 16, which is all about mandatory punishment.

The Minister also told us:

“Somebody who may never have got up before noon in his life might classify learning to read and write as a punishment”.—[Official Report, 30/10/12; col. 548.]

He later said:

“The point I am making is that the punitive concept is widely drawn and is very much in the hands of the sentencer”.—[Official Report, 30/10/12; col. 549.]

In the light of those two statements, which conflict with the Government’s previously declared intentions as to what would be defined as a requirement imposed for the purpose of punishment as set out in new subsection (2A) in Schedule 16, perhaps the Minister could tell us when he responds what is the definition of the “punitive concept” which has been widely drawn and is very much in the hands of the sentencer. Perhaps the Minister could also tell us whether his statement that someone who may never have got up before noon might classify learning to read and write as a punishment means that a community order with a requirement to take a course developing reading and writing skills would be regarded as meeting the provision in new subsection (2A) in Schedule 16 of,

“at least one requirement imposed for the purpose of punishment”.

The Minister was undoubtedly right in drawing attention to the fact that programmes designed to help rehabilitate the offender and reduce reoffending to the benefit of everyone involve punishment. There is a requirement for an offender to attend at specific times, on specific days, for a laid-down period of time, to undertake a specified programme or a specified activity which they most certainly would not otherwise have done. Having to undertake that programme or activity involves loss of liberty for the time they are involved, as they have to do it, and failure to attend or to treat the programme or activity seriously is liable to lead to the offender being brought back to court and either having the programme or activity made more onerous or another punishment imposed, which could include being sent to prison.

Rehabilitative programmes often involve offenders being forced to face up to their behaviour and way of life in a direct way, which can be challenging and distinctly uncomfortable for the offender. In our amendments we have listed programmes and activities which would be regarded as a punishment requirement under the terms of proposed new subsection (2A) in Schedule 16. We have also included unpaid work, a curfew, and exclusion in that list. We have not included as a punishment a requirement that would involve purely supervision.

If the Minister meant what he said on 30 October about somebody classifying learning to read and write as a punishment, and he will agree that the punitive concept is widely drawn and very much in the hands of the sentencer, he will accept our amendments or at least agree to come back on Report with government amendments along similar lines. I beg to move.

--- Later in debate ---

[Lord McNally]

I shall simply blame my Box advisers if there was an opportunity to tease my noble friend which they did not draw to my attention. Perhaps there will be opportunity when we get to Report. I am always in awe of the assiduity with which my noble friend approaches her task. I will have a look at the point that she has made in the cold light of Hansard. The hot message from the Box is that the punitive element will not be a sentence fixed by law, but if there is any reason to clarify or modify that, I will write to my noble friend and make the letter available to the rest of the Committee.

[Lord Rosser]

My Lords, the Minister expressed the hope that we would read the debate carefully. I would have thought he accepted that I read them carefully—I have managed to quote from his speeches repeatedly. Quoting back at him precisely what he said is the strongest part of my case. I appreciate that in the light of the Minister’s explanation every other Member of your Lordships’ House may be completely clear, but there is one Member who is certainly not clear. As I understand it, the Minister has accepted that the case he referred to—that of a person who never got up in his life before noon might classify learning to read and write as a punishment and therefore a requirement to take a course developing reading and writing skills being put in a community order—could be regarded as a punishment under the terms of this Bill. I think that is what the Minister said when he responded to that specific question. Perhaps he would confirm that.

[Lord McNally]

Yes. The noble Lord seems to be having difficulty. Yes, if the person turns up and learns to read and write, that is a good bargain. We are trying to get rid of the community sentence that suggests that someone clears up rubbish, but after two days he does not turn up and nobody follows it up. The only thing that happens—as I mentioned to the noble Lord, Lord Reid, in the last debate—is that the offender takes the orange jacket to wear as a fashion item at the Saturday night dance. It is that contempt for community sentencing that we are trying to get rid of, but I have no trouble with the illustration that the noble Lord gives, as long as the punishment or the purpose is followed through. The noble Lord knows the problem of illiteracy. If we can build into community sentencing a real sentence with teeth which makes particularly young offenders learn to read and write, it could be a turning point in their lives. The noble Lord does not set me any kind of difficult question by asking for that clarification, as long as the community sentence is effective.

[Lord Rosser]

The Minister is confusing two things. We are dealing with part of the schedule that refers to a requirement that would be regarded as a punishment. It has been defined elsewhere as, for example, a curfew, unpaid work or an exclusion. The Minister has now agreed—and it is presumably now on the record—that this could be extended to include the case of somebody given a requirement to learn to read and write, and that that could be regarded as a punishment. What the noble Lord then went on to say has nothing whatever to do with the part of the schedule that we are discussing, but with his concerns about people given a punishment. He quoted unpaid work, because he referred to picking up litter or something. That is unpaid work, which is defined as a punishment even in the noble Lord’s definition. However, making sure that it is carried out is totally different from what we are talking about in this part of the schedule. So I do not know why the noble Lord brought that in as an answer to my point.

He says that sentencers will have a degree of flexibility. If that is the case, why did he not accept the earlier amendments to change the word “exceptional”, in one case to “particular” and in another to “specified”? He would not move on that, yet now says, for example, that the kind of programme he referred to could be regarded as a punishment. I do not know why he is not prepared to accept Amendment 9 because it says,

“a punishment requirement may include”,

and it refers to “an accredited programme”. Of course, the answer is that the key thing the Minister has not budged on when he seeks to say that the sentencers will have discretion, is that 95% of cases will be regarded as the norm and will have the punishment element. The Minister will still put on a limit and say that only 5% should be regarded as exceptional. If he was prepared to accept Amendment 9, he would remove any doubt about that and back up his statement that a court may be able to take a view that a community order—for example, a requirement to take a course developing reading and writing skills—was sufficient and could be regarded as a punishment.

However, the guidance that the courts will get on sentencing from the pre-sentence report will be based on what the Government, through NOMS, want to tell the probation service. Clearly the probation service will be told that only in exceptional circumstances can a community order not recommend unpaid work, a curfew or an exclusion. To come back to what the Minister quoted, the ability of a court to decide on a community order that requires developing reading and writing skills is going to be very limited, despite what the Minister said about the sentencers having discretion. The significance of the fact that the Minister was not prepared to accept either amendment to change the guidelines to “particular” or “specified” gave the game away.

The Minister wants it both ways. He wants to stand at the Dispatch Box and say that accredited programmes could be regarded as a punishment and give the impression that sentencers will have a lot of discretion, when we know that they will not. On the other hand, he wants to make sure that exceptional circumstances really are very exceptional indeed. I have been asked to decide whether to withdraw the amendment. Of course, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

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[Baroness Howe of Idlicote]

My Lords, I will be very brief. I support both the amendments. They are vital and I hope that they will be adopted fully by the Government. As the noble Baroness, Lady Linklater of Butterstone, has said, it is an extraordinary situation, after all the reports that there have been over the years, that still no special arrangements have been made for women offenders. We know that so many of them have suffered. Around half the women in prison have suffered domestic violence and one in three has been sexually abused. Most of them entering custody have committed non-violent offences. I remember going around a women’s unit some time ago where a radio and television station had been set up and they were being trained to be interviewers as well as the technicians on it. I was asked quite deliberately why I thought it was that women got more severe sentences than men who had committed equivalent crimes. I did not have much of an answer at that stage, but when I checked on it I found that what they said was very accurate. They were being penalised much more strongly.

The noble Baroness, Lady Linklater, made a very important point about the children affected by this. It is absurd to break up families, particularly those that consist of just mothers and children. Quite often the fathers fall by the wayside when the mother goes in to prison. It is not just the break-up of the home that is traumatic—the home is often repossessed—but there is also the effect on the children of suddenly losing their mother and perhaps having to go into care. That is quite unnecessary if working together with the mother and the family can produce the best answer. I am quite certain that in the right circumstances it can.

I believe that Amendment 20, spoken to so effectively by my noble friend Lord Ramsbotham, is also crucial. We know that the cycle of deprivation concentrates on that particular group that comes in and out of prison, and so many of them are in that young age group. We are told that some of the reasons for this may well be that a lot of facilities available for children begin to fade away—the Prison Reform Trust has done an excellent briefing on all of this—and yet these children still have time to mature into adults and do not go through that transition until full adulthood which is reached at the age of about 22.

I hope that some of the experiments that have been reported on will be taken to heart. You have to have both the experienced and the expert there to help the young. Finding jobs or training is crucial if they are to be given an alternative to going back into the cycle. As well as the help of professionals, back-up with things such as HomeStart and people who know how to be supportive within a family are crucial for getting the young offender back on the right path. As we have heard already, there are experiments that have worked. Let us please ask the Government to back them. I am sure that they have exactly the same interests as we all have in this direction, so it is just a question of making certain that we get the right facilities and the right framework to enable this to happen.

[Lord Rosser]

I will be very brief and say that we support the thrust of what has been said. We will listen carefully to the Minister’s reply, particularly if the Minister feels unable to accept the amendments.

[Lord McNally]

My Lords, this has been an important debate. It is four-square with two instincts that I had when I came in to this job two and a half years ago and they have been reinforced by all the experiences that I have had over the past 30 months. The first relates to the point made by the noble Baroness, Lady Linklater, that women are different and need a different response from our criminal justice system. The other relates to the age group of young adult offenders—whether it is 18 to 21 or 18 to 25. Not only is that the age of a transition to adulthood; it can also be a transition to a lifetime in crime. It has struck me time and again that if only we could extend some of the lessons that we have learnt from the treatment of young offenders under the age of 18 into that age group, we might be able to have a similar impact.

One thing that is encouraging concerns my right honourable friend Chris Grayling, the new Lord Chancellor and Secretary of State for Justice. I have been impressed by the freshness of his thinking in some of these areas. It may be that, like me, he has the benefit of not being a lawyer and comes to it with a certain action-this-day, can-do approach. One thing I will accept that the noble Lord, Lord Ramsbotham, referred to earlier. I will propose to the Lord Chancellor that he comes to this end of the building and that we have a meeting. I think that it will be to our mutual benefit.

On the point about women, raised by the noble Baroness, Lady Linklater, and the noble Lord, Lord Ramsbotham, I make the point that women now have a new champion in the Ministry of Justice, Helen Grant MP. While Helen has been working her way into the job, it has caused a slight delay in the publication of the women’s strategy. She is entirely comfortable with the content and direction. As for when it will be ready, I am not sure which of the civil servants’ euphemisms I am allowed to use—before Christmas, shortly, in December—but work is well under way and she is taking a close and personal interest. I think that it will be greatly to the advantage of the priority that women are given within the Ministry of Justice that Helen is now in place. I also emphasise that, in developing that women’s strategy, we build on the work done by the noble Baroness, Lady Corston, and the template that she laid down. As with the previous Administration, there is a difficulty with resources in some of our ambitions, but that does not take away from the fact that we are looking at a real and effective strategy, building on the Corston proposals and taking them forward.

Likewise, young adult offenders are a very important group, and if we are going to succeed in a rehabilitation revolution it is in that group that we have to find our success. We must explore ideas to get effective programmes for them. I thank my noble friend Lady Linklater and the noble Lord, Lord Ramsbotham, for drawing the Committee’s attention to these important issues. This Government share their belief that it is important that the criminal justice system is properly responsive to the needs of female and young adult offenders. If we are successfully to rehabilitate both groups of offenders, it is important that we take into account the different profiles of women and young adult offenders, including the factors associated with their offending.

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Moved by

[Lord Rosser]

21: Schedule 16, page 260, line 24, at end insert—
“Part 8Reorganisation of the National Probation Service1 The Offender Management Act 2007 is amended as follows.
2 After section 15, insert—
“15A Power to reorganise the National Probation Service
(1) Any plans to reorganise the Probation Service for England and Wales must be instituted by regulations.
(2) Regulations under subsection (1) shall be subject to the affirmative resolution procedure of each House of Parliament.””

[Lord Rosser]

My Lords, the purpose of the amendment is to enable the Government to say rather more about their intentions for the future of the probation service, given that an effective and properly resourced probation service will be crucial to delivering the Government’s intentions on community sentencing, which we are discussing, and the decisions of the courts. The Minister also referred to the probation service in our debate on community sentencing on 30 October. The amendment states that any plans to reorganise the probation service must be instituted by regulations, and that those regulations shall be subject to the affirmative resolution procedure of both Houses.

We know that the Minister is a great admirer of the probation service. He told us on 30 October that:

“I am a lifelong admirer of the probation service and am in awe of the responsibilities that our probation officers take on. I cannot imagine that any future structure would not draw on the experience and ethos that makes it such an excellent service”.—[Official Report, 30/10/12; col. 549.]

On the face of it, that could be taken to mean that the probation service as we know it today has a long-term future, particularly if it is the Government’s intention to raise the profile, importance and extent of rehabilitation as the means of reducing reoffending. On the other hand, the noble Lord’s words could mean very little.

He said that he could not imagine that any future structure would not draw on the experience and ethos that make it such an excellent service. What exactly did the Minister mean when he said that? One interpretation could be that the Government are nevertheless still looking to hand over to outside contractors large parts of the work currently undertaken by the probation service, and that the experience and ethos to which the Minister referred would be drawn upon because he would expect significant numbers of existing probation staff to be transferred over to those contractors. Is that an interpretation of the Minister’s comments that he would either accept as accurate or not be prepared to exclude?

He said that he was,

“in awe of the responsibilities that our probation officers take on”.

Yet, as I understand it, the Government have indicated that 60% of probation work will be put out to competitive tender. What then were the responsibilities that the Minister had in mind when he said that, and how many of those responsibilities is it the Government’s intention that the probation service should continue to undertake? Is it all of them, as presumably it should be, bearing in mind that the noble Lord is “in awe” and regards the probation service as an excellent service, and that its work will continue to be undertaken by probation officers in the years ahead?

Are the Government looking to reorganise the probation service and, if so, with what objective in mind, and in what way? If the probation service is already excellent, as the Minister told us last month, what improvements in the service do the Government believe can be achieved without potentially putting at risk the quality of the excellent service currently being provided?

We definitely do not want to see any attempt to reduce significantly or change the role of the probation service without Parliament being fully aware of what is going on, without the opportunity for a full debate—with Ministers having to justify their proposals to Parliament—and without Parliament having to agree to those changes. The new Secretary of State seems to believe implicitly in the private sector’s ability to do just about everything better than the public sector, and he is likely to try and outsource as much as he can work that is currently undertaken by the probation service. If that is not the case, the Minister has only to stand up and give a cast-iron guarantee that the probation service will continue to undertake its current activities within the public sector.

The Minister could also say how many staff are in the probation service at the present time and how many the Government envisage there will be in the future, taking account of their proposals in the Bill on community sentencing and their declared intentions on restorative justice and on the role of rehabilitation in reducing reoffending. We will listen to the Minister’s response and the words that he chooses to use—and the ones that he chooses not to use—with interest. I hope that his response will be consistent with the effusive words he used about the probation service in his response to our debate on 30 October. I beg to move.

[Baroness Hamwee]

My Lords, my noble friend Lady Linklater has already put on record today, for the umpteenth time in this Chamber, our admiration for the work done by the probation service. I hope that is a fair summary. I will not take up the Committee’s time by repeating that or picking up the points of acclamation made by the noble Lord. I simply want to ask him a question. His amendment would insert a provision for the affirmative resolution procedure in the 2007 Act. The significance of the date of that will not be lost on the Committee. In other words, that legislation existed before the last general election. I was hoping to understand, from his introduction of this amendment, why, as that legislation allowed for plans to reorganise the probation service—I understand that must be so from his own amendment—there was no provision included at the time for the affirmative resolution procedure. I make it clear that my question is for the noble Lord, Lord Rosser.

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[Lord Rosser]

I think the Minister has answered the question from the noble Baroness, Lady Hamwee. We have not heard much since the conclusion of the consultation. The Minister has made it clear that there will be a reformed system and, by saying that the Government’s ideas will be around in the next few weeks, he has indicated that your Lordships’ House will not be able to discuss the Government’s proposals on community sentencing in the light of the Government’s intention for the future of the probation service. If that is wrong and if the Minister is telling us that on Report we will know what the Government’s intentions are for the future of the probation service, I will be very happy to give way so that he can tell us that fact. He does not seem to be too keen to stand at the Dispatch Box to confirm that that information will be available for us on Report.

It is with considerable suspicion that we view this Government’s intentions for the probation service. There is clearly a move to outsource more activities. The Minister has not taken the opportunity that I have given him to stand at the Dispatch Box and tell me that I have got it all wrong and that that is not what the Government are thinking of doing. That is the answer to the question from the noble Baroness, Lady Hamwee.

[Lord McNally]

For the record, we are considering how to give effect to those parts of the Offender Management Act 2007 that open up provision of the probation service to a wider range of providers. In doing that, we will, of course, take a sensible and measured approach to any proposals introducing competition for offender management. Protection of the public will continue to be our top priority as we design our reforms.

[Baroness Hamwee]

My Lords, I would not say that the noble Lord was interrupted but an explanation has been given by the Minister. I did not expect the Minister to answer my question because it was not a question for him. It was a question about why the previous Government provided for the sort of reorganisation to which the noble Lord, Lord Rosser, referred, but did not provide for the affirmative resolution procedure. I am sure he would have said, as I have, that one needs to ensure that all legislation is proof against succeeding and different governments. The noble Lord was not part of it so perhaps I am teasing him unnecessarily.

[Lord Rosser]

It was not our intention to do to the probation service what one suspects that this Government are contemplating doing to the probation service. Certainly, nothing that the Minister has just said will have allayed any fears or concerns about the Government’s future intentions for the probation service. We tabled an amendment to ensure that the matter is fully discussed and debated in both Houses and to point out that it requires an affirmative resolution procedure.

I am not surprised that the Minister has declined to answer any of the points that I have put forward in asking him about the Government’s intentions. He has effectively remained silent, which must add considerably to the worries and suspicion about what is intended, particularly since the consultation ended a while ago. However, I realise that I cannot force the Minister to say anything in response to questions that I ask. Therefore, I have no alternative but to beg leave to withdraw the amendment.

Amendment 21 withdrawn.

Crime and Courts Bill [HL]

Lord Rosser Excerpts

Tuesday 30th October 2012 Lords Chamber

[Lord Rosser]

Today, as the Minister has said, is in fact a Second Reading debate on the Government’s latest additions to the Crime and Courts Bill. The new schedule and clause, entitled “Dealing non-custodially with offenders”, cover a number of proposals and changes—namely, a punitive element to every community order, restorative justice, pre-sentence information sharing, information on offenders’ assets and financial circumstances, the removal of limits on compensation orders for adults and location tracking for the electronic monitoring of offenders, although the reliability, effectiveness and cost of using the equipment involved for such location tracking is as yet far from clear. On the other side of the coin, the Government’s proposals are either silent or relatively so on the provision for young adults, women and vulnerable offenders. No doubt at some stage the Minister will explain why this is the case.

I want to direct most of my comments to the introduction of a mandatory punitive element in every community order. The Government’s heavily trailed proposals for “tougher” community sentences have been delayed even longer than anticipated by the departure of Mr Clarke as Secretary of State at the Ministry of Justice and his replacement by Mr Grayling, a person adjudged to be more in tune with the heartbeat of Conservative Members of Parliament and Peers on law and order issues.

What, then, do the proposals add up to? Put simply, that appears to depend on the extent of the freedom, or lack of it, that courts are given to decide how to interpret them if they become law. The Government are seeking to make it mandatory for a court to impose at least one punitive element or a fine or both when sentencing an offender to a community order. For example, a punitive element could be unpaid work or electronic tagging and a curfew.

Having made it mandatory in one part of their proposals, in the next part, the Government then say that does not apply where there are “exceptional circumstances” relating to the offence or to the offender which would make it “unjust” in all the circumstances to impose a community order with a punitive element or fine. It is a bit like having an each-way bet. It seems that guidance on what is meant by “exceptional circumstances” will be given, among others, to the Probation Service, which draws up reports for the courts with recommendations on sentencing offenders who are being considered for a community order. It is not clear who will be drawing up this guidance, how prescriptive it will be or what will be the size of the Secretary of State’s personal footprint that will be stamped on the guidance. I hope that the Minister will be able to enlighten us on these points when he responds.

The Government say that they do not want to tie the hands of the courts. Clearly, at the very least, they want to give the appearance of telling the courts that they have often got it wrong up to now in their community order sentencing and how they must act in future. Currently some two-thirds of community sentences provide for what is considered to be a punitive element and often a rehabilitative element as well. The remaining third provides for measures designed to help rehabilitate an offender and/or for supervision by the Probation Service, but do not contain a punitive element because the courts have not considered that appropriate. Victims and communities, say the Government, want to see a punitive element in any community sentence, and that is why they are proposing to put a mandatory requirement, except in “exceptional circumstances” on the courts to impose a punitive element, or a fine, or both, in any community order.

Can the Minister confirm that this means that he and his ministerial colleagues in the department are telling the courts that in nearly a third of cases involving a community order they have been getting their sentencing wrong? Or is it the Minister’s view that things will continue much as they are now because “exceptional circumstances” may well continue to be found by the courts in almost a third of cases?

Most surveys show that the main thing most victims and communities want is some assurance that action will be taken to minimise the likelihood of the offender reoffending. On that score, the Government’s proposals contain very little. There are plans to extend restorative justice which we support, but this is dependent on the victim or victims and offender agreeing to such a step, which may or may not lead to a lesser penalty being imposed by the court. It would be helpful if the Minister could say what increase the Government are expecting in the number of cases dealt with in this way, what resources will be made available and at what cost, since disposal effectively of cases in this manner is likely to be resource-hungry.

The new Secretary of State has made it clear that his proposals for mandatory “tougher” community sentences, which can already be imposed by the courts, if they think fit, under existing powers, are not intended to be used as an alternative to short prison sentences of a few months. All the evidence shows that those are the least effective sentences in terms of reducing reoffending, which is what victims and communities really want to see achieved. So it would appear that the Government’s proposals will not reduce costs or the prison population, but rather, with the emphasis on extended mandatory requirements, would, if actually implemented, increase costs without necessarily impacting positively on reoffending.

One question is whether the Government’s real intention with the amendments is to impose tougher sentencing on the courts for community orders with the emphasis on a mandatory requirement on punishment and very little said on rehabilitation. Alternatively, is the intention to give the impression that this is the case for the benefit of the Conservative right wing and the right-wing media, while in reality continuing to leave it to the courts to decide the appropriate balance between punishment and rehabilitation in a community order, as they do now? No doubt, the Minister will clarify the position on this point, as that is surely one question to which the noble Lord must know the answer.

When considering community orders, a further issue is the role of the probation service in the management and supervision of offenders. What role do the Government see the current probation service playing in the future and in what format? In what areas of activity will the probation service continue to undertake the work itself and in what areas of activity will other organisations in the private and voluntary sectors be taking over the responsibility?

The new Secretary of State has come from the Department for Work and Pensions, which seems quite keen on the commissioner-provider split. Is that now the road that the Secretary of State intends to go down with increasing vigour as far as the management and supervision of offenders, and the future role of the probation service, are concerned?

We know that the Government lay some emphasis on what they describe as payment by results as an approach to engaging organisations in work with offenders. There is a danger that there is a lot of payment and not much in the way of results. Pilot exercises have been undertaken and perhaps the Minister could talk about the outcomes of these exercises and whether they have been completed as intended. If the Government’s view is that the courts have not been sentencing appropriately in one-third of community orders because no punitive element has been concluded, what benefits do the Government see arising from a punitive element now having to be imposed?

Most offenders have one or more issues that need addressing or taking into account in sentencing, ranging from mental illness or disorder of varying degrees of seriousness to significant housing, drug, substance or alcohol problems, learning disabilities and low educational achievement, being stretched financially or having primary care responsibilities. In a number of cases, these problems, allied to considerations of the circumstances and nature of the offence, may make a punitive element inappropriate. Based on their own research, what view do the Government have of the percentage of cases involving community orders that might be covered in future by whatever definition the Government intend of “exceptional circumstances”? Is it the Government’s view that a punitive element in the third of community order cases that currently lack such a provision will reduce reoffending in these cases or is this new provision being primarily designed to meet the Government’s view of what victims and communities want? As it is, we now already have a new requirement that where a community order is made by a court, a £60 victim surcharge will also be payable by the offender.

Debates in Committee and on Report will provide an opportunity to probe in more detail the thinking, reasoning and hard evidence behind the Government’s proposals and the impact that they are likely to have on reoffending, victims, the prison population and costs. The proposals indicate a considerable lack of confidence by the Government in the judgment of the courts to get the balance right between punishment and rehabilitation when imposing community orders. The mood music of the proposals on community orders, taken as a whole, is that of a one-club approach of being more punitive in future with new mandatory provisions, in contrast to the relative lack of emphasis, and certainly no mandatory requirements, in relation to rehabilitation.

If that is the Government’s instruction, through this Bill, to the courts, the outcome may well be less provision in community orders in future on rehabilitation or non-punitive elements as a means of reducing reoffending. Perhaps the Minister would confirm that such a development would be in line with the Government’s thinking on community orders in future. Many who appear before the courts need to be punished in clear and unequivocal terms for the offences they have committed. Equally, for others, that may not be the appropriate road to go down when there is evidence that the prospects of reducing reoffending would be maximised through addressing the causes of their offending with challenging sentence requirements. We will keep an open mind at this stage on the Government’s proposals, which have only recently been published, and we wait to see if the Minister can address some of the concerns expressed.

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[Lord McNally]

All is now clear. Yes, we have to accept these amendments but they are then subject to amendment at the next stage. They have to be in the Bill to allow us to proceed; otherwise we will still have a blank page.

[Lord Rosser]

As long as we are clear—I think we are; and I am not accusing the Minister of being otherwise —that, whatever happens now, if the amendments are in some way agreed, it will be open to us to have effectively a Committee stage next month where amendments to these government amendments can be put down, debated and voted on, if votes are called.

[Lord McNally]

I can absolutely give those assurances. The clerk advises me, and I am sure she is right, that if we did not move the amendments we would have a blank page. Your Lordships will then have something to put amendments to, so that we can have a proper Committee stage with amendments.