Domestic Abuse Bill

Lord Wolfson of Tredegar Excerpts

3rd reading
Wednesday 24th March 2021 Lords Chamber

[Baroness Royall of Blaisdon (Lab) [V]]

My Lords, I am grateful for your Lordships’ patience in enabling me to table and move this short amendment, whose purpose is to correct a minor defect in my original drafting, for which I apologise. I am grateful to the clerks for their advice.

I understand from the Sunday Telegraph that the Government are going to create a super-database, which would include domestic abusers and stalkers, as well as sex offenders. If this were the case, I would naturally be delighted. This would enable police, prison and probation services to track offenders guilty of violence against women and would be a huge step forward in our efforts to tackle gender-based violence and misogyny.

I pay tribute to all those who have campaigned over many years to make this a reality, especially my formidable friend Laura Richards, as well as survivors and the families and friends of victims. I emphasise that we have never been asking for a separate register for stalkers and perpetrators of domestic violence but rather that they should be included on ViSOR—the violent offender and sex offender register. I am sure that we will receive more details when the amendment agreed last week is considered by the Commons after Easter, but I hope that the intention, if not the details, will be on the face of the Bill. Likewise, I have outlined details of the perpetrator strategy which must be an integral part of the policy relating to the database. There must be a statutory requirement for police, prison and probation services to risk assess and manage perpetrators, in partnership with domestic abuse and stalking services. Unless this is mandatory, the key professionals will not always come to the table, and their participation is vital.

I thank the noble Lord the Minister for his work on these issues and, specifically, the noble Baroness, Lady Williams, for all that she has done and for her letter received this morning. Sadly, the letter was not as explicit as some of the media briefings, but I am grateful to her for recognising that there is a consensus that more needs to be done. I suggest that there is a consensus on the actions needed. As the noble Baroness has said in the past, we have already agreed on the ends; I think and hope that, as a consequence of the debate and vote on my amendment on Report, we are now close to agreeing on the means that will bring about a cultural change, focusing on the perpetrators and saving lives. I look forward to hearing the results of the discussions between her officials and experts in developing the database and the perpetrator strategy. I beg to move.

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

My Lords, I first apologise on behalf of my noble friend Lady Williams of Trafford, who is unable to be present today. The Home Secretary has asked my noble friend to deputise for her at today’s meeting of the G6, which the UK is hosting. The G6 meeting of Interior Ministers is one of the most important long-term, multilateral forums in which to discuss priority home affairs issues with some of our closest security partners. I hope that noble Lords will therefore understand the importance of my noble friend attending that meeting, but she is, none the less, disappointed that this means that she cannot be here today.

I turn briefly to the amendment which, as the noble Baroness, Lady Royall of Blaisdon, has explained, is purely a drafting amendment and, as such, the Government will not oppose it. My noble friend made clear on Report what the Government’s substantive view now is of Clause 85 of the Bill. I hope that the House will forgive me if I do not repeat that position today. It is now for the other place to consider this and other amendments agreed by your Lordships’ House.

[Baroness Royall of Blaisdon (Lab) [V]]

My Lords, I am grateful to the noble Lord the Minister for expressing the Government’s position on this amendment. I am sure we are all very proud of the fact that his noble friend Lady Williams, the Minister, is representing the Government at the meeting of the G6.

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Moved by

[Lord Wolfson of Tredegar]

That the Bill do now pass.

[Lord Wolfson of Tredegar (Con)]

My Lords, I hope noble Lords will permit me to say a few words to mark the completion of the passage of the Bill through this House. I say, with some hesitation, that this is one of those Bills which has shown your Lordships’ House as its best. My hesitation does not arise from the proceedings on the Bill. Those were marked by speeches of high calibre and engaged debate and, undoubtedly, led to an improved Bill. My hesitation is due to the fact that this was the first Bill on which I worked in my time in this House. When I began work on it, I had nothing to compare it to, but I was fortunate to have the support and wise counsel of my noble friends Lady Williams of Trafford and Lord Parkinson of Whitley Bay. They were right about everything else they told me so, as they have assured me that this Bill shows the House at its best, I am relying on them to be right about that as well.

Having mentioned my noble friends, I must pay tribute to them and give my thanks to those who have supported them and me in this endeavour. We have had the benefit of expert support from officials and lawyers across no fewer than eight government departments: the Home Office; my department, the MoJ; the Ministry of Housing, Communities and Local Government; the Department for Education; the Department of Health and Social Care; the Department for Work and Pensions; the Department for Business, Energy and Industrial Strategy; and the Department for Digital, Culture, Media and Sport; not to mention the devolved Administrations in Scotland, Wales and Northern Ireland, which have also had a hand in this Bill. I also thank the Bill managers, Charles, Pommy, Oliver and Georgina, and the private secretaries, Rebecca and Patrick; their work has been exceptional. If nothing else, the range of government departments and people I have just mentioned shows that tackling domestic abuse is everyone’s business. We are very grateful to all those involved across government.

In addition, we are grateful to Members from across the House. I thank those on the Front Benches opposite for the constructive way in which they have dealt with the Bill, and the very courteous and constructive way in which they have engaged with me. I thank the noble Lord, Lord Rosser, the noble Baroness, Lady Wilcox, and the noble Lord, Lord Kennedy—I am particularly pleased that this Bill is the culmination of his four-year campaign on the issue of GP fees. Last, but certainly not least, I am grateful to the noble Lord, Lord Paddick, for bravely sharing his own experiences of domestic abuse, and to his colleagues on the Liberal Democrat Front Bench, the noble Baronesses, Lady Hamwee and Lady Burt of Solihull, and the noble Lord, Lord Marks of Henley-on-Thames.

I will also take a moment to thank other Members of this House who have worked very hard. I thank my noble friend Lady Newlove, as well as the organisations which aided her, on their work on non-fatal strangulation —something that is now part of the Bill as a Government-drafted amendment. I thank my noble friend Lady Morgan for her work on threats to release intimate images. Again, this is now part of the Bill as a Government-drafted amendment. In that context, I must give my personal thanks to the noble and learned Lord, Lord Judge, who discussed with me some of the legal issues raised by that amendment.

I thank the noble Baroness, Lady Lister, and my noble friends Lady Bertin and Lady Sanderson—if I may respectfully group them together—for their campaigning on coercive and controlling behaviour, which also is now part of a Government-drafted amendment. I thank my noble friend Lord Polak, who campaigned tirelessly on community-based services. This is something we have now taken on board. We may not have agreed on all points, but I also thank the noble Baronesses, Lady Campbell and Lady Grey-Thompson, for raising the important issue of carers in the Bill, which will be explored further in another place. Finally, I thank my noble friend Lady Altmann and the other sponsors of the amendments dealing with get. It is a somewhat recondite point, but one which causes real distress and suffering.

Whether we have agreed or disagreed, as the noble Baroness, Lady Royall, mentioned a moment ago, in scrutinising this Bill, we have all been striving for the same outcome: ensuring that victims of domestic abuse and their children have better protection and support, and that perpetrators are brought to justice. As she said, the differences have invariably been about the means of achieving this, not the ends involved.

We will of course reflect carefully on the nine amendments agreed by your Lordships’ House against the advice of the Government. We will set out our position when the Bill returns from the other place in due course. We will inevitably debate this Bill at a future date, but I know that all noble Lords will join me in hoping that it will soon be on the statute book, making a real, tangible and positive difference to the 2.3 million victims of domestic abuse each year. I therefore beg to move that the Bill do now pass.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I see the time and I hope the House will not think me discourteous if I respond very briefly. I am very grateful for the kind words of the noble Lord, Lord Rosser. He was quite right to remind us that the Bill had cross-party support. He was also right to remind me to thank—I fear that I did not, but I do now—the noble Lord, Lord Ponsonby of Shulbrede, who brought his experience as a magistrate in family matters to the attention of the House, which was very helpful in number of issues, and the noble and learned Lord, Lord Falconer of Thoroton, with whom I debated some of the legal matters. I apologise to the noble Baroness, Lady Burt of Solihull, for stealing her lines. I would put it this way: she reassured me that I was, in fact, correct when I said what I did.

The House benefited, as it always does, from the considerable experience and wise counsel of the noble and learned Baroness, Lady Butler-Sloss. I am sure we are all grateful to her. As for my noble friend Lady McIntosh of Pickering, I hope she will allow me to disagree with her when she said that she played a small part. She did not; she played an important part and, with that very important correction, I very much endorse what she said.

Last but certainly not least, if I may put it in those terms, to hear the noble Baroness, Lady Jones of Moulsecoomb, praise the Government is a wonderful thing. It shows that miracles do happen. I can assure her that the Government always listen, we just cannot always say yes. I hope noble Lords will forgive me for being brief, but I do see the time and I beg to move that this Bill do now pass.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I have received a request to ask a short question of elucidation from the noble Baroness, Lady Uddin.

[Baroness Uddin (Non-Afl)]

My Lords, I thank the House for its leniency. I welcome the super register that has been proposed. I convey my thanks and respect to all noble Lords who have spoken in this debate. It has been my long-standing hope to participate in a small way in this debate, and an honour to have done so. I extend my thanks to the noble Baroness, Lady Williams, and the noble Lords, Lord Wolfson and Lord Parkinson, for their contributions and dedication to this cause. It has been much noted that the sisterhood across the House was incredibly powerful, and I wanted to state that. We have a common purpose in making real changes to the lives of survivors, so will there be a public information campaign to empower women with a message that our society has marked this day to say that we utterly reject violence against women? It is everyone’s business, as has been said, to begin the process of eliminating violence and abuse. It will send a very powerful message to all, around the world, that we intend to stand against violence and abuse in every form.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the comments of the noble Baroness. Of course, this Government oppose violence in all forms, especially violence against women. As to the publicity campaign she mentions, she will be aware that there are a number of areas where the Government already have publicity in this area. I am very happy to speak to her to understand particularly what she has in mind, and I will arrange to have that conversation in due course.

Bill passed and returned to the Commons with amendments.

Independent Review of Administrative Law Update

Lord Wolfson of Tredegar Excerpts

Monday 22nd March 2021 Lords Chamber

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

My Lords, I also thank the noble Lord, Lord Faulks, and the distinguished panel he chaired, for the hard work and painstaking research they put into producing their independent review. I share the right honourable and learned Lord Chancellor’s expressed view that

“judicial review plays a vital role in upholding the rule of law: it acts as one of the checks on the power of the Executive”.—[Official Report, Commons, 18/3/21; col. 504.]

As his right honourable friend Michael Gove put it when he was Lord Chancellor:

“Without the rule of law power can be abused. Judicial review is an essential foundation of the rule of law, ensuring that what may be unlawful administration can be challenged, potentially found wanting and where necessary be remedied by the courts.”


The first of the two steps the Government plan to take now is the ending of the so-called Cart JRs, through which the High Court permits a judicial review although the Upper Tribunal has refused permission to appeal. They say that so few Cart JRs succeed that they are a waste of judicial resources. From the consultation questions, it is clear that this decision has already been taken. Should not the short consultation proposed have been more open on this, given that almost all Cart JRs are immigration cases and so of particular sensitivity?

The Government also propose to permit courts to suspend quashing orders to allow the Government a chance to act to correct the errors that made the original government action unlawful. The reasoning for this change is powerful, and on this issue the consultation seeks views on how to achieve this objective—and rightly so.

However, the rest of this Statement sets loud alarm bells ringing. The Lord Chancellor says that the Government want to

“go further to protect the judiciary from unwanted political entanglements and restore trust in the judicial review process.”

He talks of examining

“the use of ouster clauses”—

as mentioned by the noble and learned Lord, Lord Falconer of Thoroton—

“the remedies available in judicial review proceedings, and further procedural reform.”

Bluntly, ouster clauses are clauses in statutes designed to ring-fence government decision-making and administrative action from court challenges by making them non-justiciable.

The panel was broadly opposed to the use of ouster clauses. Paragraph 2.98 of its report states:

“While the Panel understands the government’s concern about recent court defeats, the Panel considers that disappointment with the outcome of a case (or cases) is rarely sufficient reason to legislate more generally.”


Paragraph 2.99 states that

“while the use of such a clause to deal with a specific issue could be justified, it is likely to face a hostile response from the courts and robust scrutiny by Parliament.”

Paragraph 2.100 states:

“The decision to legislate in this area is ultimately a question of political choice. But when deciding whether or not to do so, the Panel considers that Parliament’s approach should reflect a strong presumption in favour of leaving questions of justiciability to the judges.”


We regard ouster clauses as an unacceptable threat by the Executive to insulate their future unlawful action against challenge. Except in certain well-established areas of prerogative action, they spell danger for the rule of law.

The consultation also proposes the introduction of prospective-only remedies. That would mean that past unlawful government action or SIs would continue to have effect, even if struck down for the future, so victims of past unlawfulness who had not had the means or the ability to challenge it would face gross unfairness. The Lord Chancellor says that this would

“create a system that encourages solutions to be found through political will rather than legal dispute, so that policy making as an exercise can be much more collaborative and better informed”.—[Official Report, Commons, 18/3/21; col. 505.]


He does not say how or why. Perhaps the Minister can explain that theory to the House.

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

I am grateful to both noble Lords for their questions and comments. I am sure that this is a matter which we will be debating on a number of occasions in this House, so this evening I am going to be relatively brief, not least because the position of the Government is, as we have said, that we would like to consult on a number of matters, and consultation means just that.

Turning first to the comments of the noble and learned Lord, Lord Falconer of Thoroton, I join him in paying tribute to work done by the noble Lord, Lord Faulks, and the other members of this committee. They have done sterling work under the great pressure of a prevailing pandemic, and I am sure the whole House is grateful to them for the work they have done. I was very pleased to hear the praise given by the noble and learned Lord to the committee. Last August, he was tweeting that the Faulks committee was there to “dismantle judicial review.” I am pleased to see that, while the noble and learned Lord may tweet in haste, he has read the report and repented at leisure.

As far as publishing the evidence is concerned, we will publish the complete set of non-government submissions received by the panel next week once we have ensured that such publication is GDPR-compliant. That will be followed by a summary of the submissions by government departments to the panel’s call for evidence.

On ouster clauses, the noble and learned Lord used the word sinister. There is nothing sinister about them. There are two questions here: first, should one have an ouster clause at all? That is a matter for Parliament. Secondly, if there is an ouster clause, should it be enforced by the court? That is debated in the report and in the Government’s response to it. It is of central importance, which goes to the heart of the doctrine of the sovereignty of Parliament. Perhaps I might say, without being flippant, that on this point public law is too important to be left only to public lawyers; that is why we welcome a broad consultation. I am sure that there will be debates on these matters in the future, in this House and in the other place.

As we have set out in our response, the question is essentially whether ouster clauses are being applied by the courts in the manner in which they are drafted and passed by this House and the other place. As to whether an Act of Parliament would be needed, which I think was the noble and learned Lord’s last question, it may well be, depending on which issues are proceeded with. For example, if we proceed with the proposal for a suspended quashing order, that might well have to be done by primary legislation. The Supreme Court in the case of Ahmed concluded that the common law position was that a suspended quashing order was not available.

I now turn to the questions from the noble Lord, Lord Marks of Henley-on-Thames. First, on Cart, the panel’s analysis is, as he says, very thorough on this point. The evidence shows that only a very small percentage of this type of judicial review is ever successful. We do not feel the need to redo the consultation exercise carried out by the panels in that regard; we are focusing our consultation on how best to give effect to the recommendation in the panel’s report.

On suspended quashing orders, I note and broadly welcome the noble Lord’s support for these as a matter of principle. Obviously, there are questions about how they would be implemented; I look forward to discussing that matter with him in due course. I hear what he says on ouster clauses and I have obviously also read the paragraphs to which he referred. I think where he got to was that the position on ouster clauses would be given robust scrutiny by Parliament. I welcome robust scrutiny by the noble Lord and, indeed, by other noble Lords, but the panel said that there are circumstances in which it may be appropriate for Parliament to oust or limit the jurisdiction of the courts if there is sufficient justification for doing so. Given that, we think that it is right to consult on that question.

The noble Lord makes the point that, if one is to have a prospective remedy, it is important in the interests of justice to ensure that people who may have been unfairly affected by the decision are considered. We are clear that there must be a means by which a court can make an order with retrospective effect if the circumstances require it. However, with respect to a court making a suspended quashing order, we would like to consult on whether that should be an available option and, if it is, the circumstances and safeguards that that option would bring with it.

I hope that I have responded to all the points raised by both speakers. I will check the Official Report to ensure that I have done so.

[The Deputy Speaker (Baroness Barker) (LD)]

We now come to the 20 minutes allocated for Back-Bench questions. I ask that questions and answers be brief so that I can call the maximum number of speakers.

[Lord Hope of Craighead (CB) [V]]

My Lords, of course Parliament has the power to legislate to limit or exclude judicial review. The question is how far it should go. I was a member of the panel of the Supreme Court in the Cart case. We set the bar as high as we could when we were defining the test that should be applied, but experience has shown that our decision has not worked so I agree that it is time to end that type of review.

As for suspending quashing orders, in HM Treasury v Ahmed in 2010 I found myself, to my dismay, in a minority of one against six in holding that our order setting aside an Order in Council freezing a terrorist’s assets before they were dissipated should be suspended to give it time for it to be corrected. I agree too with the proposal to consult on prospective-only remedies as I gave a judgment some years ago in favour of those.

So far, so good, but I hope that the indication that the Government are proposing to go further is not meant to be a suggestion that a more wholesale reform is proposed. That would be a cause for concern. Can the Minister reassure me on that point?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the noble and learned Lord’s comments. On prospective remedies, I mentioned the decision in Ahmed in my opening remarks. I hope I am not rubbing salt into the noble and learned Lord’s wounds when I mention that decision, and I am grateful for his comments on it.

On his last point, I shall put it this way: this Government are committed to the rule of law. Judicial review is an essential part of the rule of law—see paragraph 18 of the Government’s response. I hope that gives the noble and learned Lord the reassurance that he was looking for.

[Lord Howard of Lympne (Con) [V]]

My Lords, I echo the tributes that have been paid to the noble Lord, Lord Faulks. I congratulate him and the panel on their report and I welcome the Government’s response.

Unlike some noble Lords who have spoken, I particularly welcome the Government’s decision to launch a consultation on proposals to examine the use of ouster clauses. As the Lord Chancellor says, the current position on ouster clauses, which is not to give them effect, goes against the intention of Parliament. In many ways, the mother of all ouster clauses is to be found in Article 9 of the Bill of Rights, which provides that

“proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”,

a provision to which scant regard was paid by the Supreme Court in the Prorogation case.

Can my noble friend the Minister give us any idea of the timescale of the consultation exercise to which he has referred? When may we expect to see—and, I hope, enjoy—its fruits?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for my noble friend’s comments on the report. I think the consultation period is six weeks. As soon as we have the responses in, we will work at pace to bring back the Government’s response to that consultation.

On ouster clauses and the decision in Miller II, perhaps I should merely stick to what I have said so far. I do not really want to get dragged into an analysis of Miller II this evening.

[Lord Browne of Ladyton (Lab) [V]]

My Lords, does the Minister agree with the former head of the Government Legal Service, Sir Jonathan Jones, as quoted in the Law Society Gazette, that:

“The review doesn’t bear out the suggestion that there has been significant judicial overreach or a surge of cases in recent years, or that large numbers of unmeritorious cases are being allowed to proceed”?


If so, why does the Statement imply the opposite? Further, does he agree with Sir Jonathan that:

“The proposal that remedies might be available only prospectively will, at least, have to allow for exceptions”


if only to

“avoid the risk of serious injustice to claimants who have already suffered loss or damage”?

[Lord Wolfson of Tredegar (Con)]

My Lords, on the first point, I respectfully disagree with the comments of Sir Jonathan, whom I respect very much. In conclusion 7, particularly the first two sentences of that paragraph, it seems to me that the panel is clear that there are cases where the courts have gone beyond a supervisory approach.

On the question of potential injustice for those who have suffered, if one is going to have a suspended quashing order or a prospective remedy, as I have made clear, that is something that we are interested in consulting on. Indeed, I would welcome the noble Lord’s involvement in that consultation.

[Lord Thomas of Gresford (LD) [V]]

My Lords, the Statement says that

“the Government would like to go further to protect the judiciary from unwanted political entanglements and restore trust in the judicial review process.”

First, is the political entanglement referred to the Prorogation of Parliament, and is referring an unlawful abuse of the royal prerogative to the court unwarranted? Secondly, who has lost trust in the judicial review process? Is it unsuccessful applicants whose applications have been refused, or is it the Government whose actions have been found so often to be unlawful? Thirdly, what does a presumptive decision mean? If it is that an appellant who is successful has no remedy or that the decision applies only to future decisions and not to him, why would anybody bother with a JR at all? So the Government want to go further; the review obviously has not gone far enough for them—oh, what a shame.

[Lord Wolfson of Tredegar (Con)]

My Lords, on the first point, the words used by the Lord Chancellor are straightforward; I do not think they need any glossing from me. On the second point and as to trust in the judicial review process, it is important that the process does two things. It enables Governments to govern; equally, it enables them to govern well. Judicial review is important for Governments because it makes sure that they govern well, and within the law. That is why we are particularly focused not only on the recommendations of the panel; we want to go to consultation on other matters as well.

On the last point, as to prospective remedies, with great respect, the noble Lord is simplifying what is a more complex matter. It is far from the case that a prospective remedy gives no remedy to the particular litigant in that case. It all depends on how the prospective remedy is furnished and how people affected by the decision can be compensated or otherwise dealt with during the intervening period. That is precisely why we want to go out to consultation: because the current cliff edge of either no remedy or a remedy ab initio, and a quashing from the moment of the decision, leads to unfortunate consequences. That is as the panel has said, as the Government have responded, and indeed, as the noble and learned Lord, Lord Hope of Craighead, explained in his minority judgment in Ahmed.

[Lord Woolf (CB) [V]]

My Lords, like others, I congratulate the Faulks committee on the work it has done and the circumstances in which it did it. I also indicate that there is at least merit in considering further the two matters which the Government propose to act upon. However, I ask the Government to bear in mind that judicial review has, so far, been very much a process which has evolved. It is most important that it is underpinned by discretion in the judges to see how it is applied. I feel that there will be room for improvements to be made. I welcome in particular the proposal that that should be done in certain instances with the assistance of the Civil Procedure Rule Committee, which has great experience in these matters. There is a lot to be careful about in what was contained in the announcement of the response by the Lord Chancellor. But all these matters can be carefully considered and I propose at this stage to say no more.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the comments of the noble and learned Lord, particularly for his support on the two matters he first mentioned. Respectfully, he is certainly right that a number of the suggested procedural reforms would have to go through the Civil Procedure Rule Committee. He made the point that judicial review has evolved over time, and so it has. But, in that context, he may like to see that in the Lord Chancellor’s introduction to the Government’s response, he makes the point in paragraph 6 that an iterative approach to reform is most appropriate. That perhaps chimes with the point which the noble and learned Lord was making about judicial review being a process, and an iterative process at that. Reform will also be iterative.

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

My Lords, I join those who have paid compliment to the panel: its work was very well done. Have the Government considered whether, when a court finds a decision wrong, it should be able to decide itself, or should it have to remit to the nominated decision-maker?

[Lord Wolfson of Tredegar (Con)]

My Lords, that is a very interesting proposal from my noble and learned friend. Generally, of course, judicial review does not substitute the decision of the court for the decision of the decision-maker, but perhaps that is a matter which I can reflect on and discuss with my noble and learned friend as I consider the responses to the consultation generally.

[Baroness Ludford (LD) [V]]

My Lords, the Government appointed a distinguished panel to review the operation of judicial review led by a Conservative former Justice Minister. The panel said that

“disappointment with the outcome of a case … is rarely sufficient reason to legislate more generally”.

It was obviously thinking of Miller 2, the prorogation case. The Government seem dissatisfied with that response. and are now consulting on statutory changes, such as for ouster clauses, which the panel advised against. The Faulks review also points out that

“any legislation would be of limited effect unless changes are also … made to the Human Rights Act.”

Given their reaction to the review of judicial review, will the Government similarly ignore the result of the Gross review of the Human Rights Act if they do not get the answers they want?

[Lord Wolfson of Tredegar (Con)]

My Lords, we are not disappointed with the report from the noble Lord, Lord Faulks, and his team. On the contrary, it is a very good piece of work. We are consulting for the reasons I have already expressed. The panel did not say that ouster clauses should never be used; it said that, when used appropriately, they should not be seen as an affront to the rule of law. We want to consult on whether and how they should be used. The independent review of the Human Rights Act is ongoing. We will consider its results in due course. While very significant reform of judicial review might require changes to the Human Rights Act, the changes we are proposing do not.

[Lord Pannick (CB) [V]]

My Lords, I declare my interest as a practising barrister in public law cases. I too thank the noble Lord, Lord Faulks, and his review team for the very sensible and balanced report which it has produced. The Minister will have noted the wise words of the noble Lord and his colleagues at paragraph 15 of their conclusions:

“Our view is that the government and Parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action. Politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers.”


Do the Government agree?

[Lord Wolfson of Tredegar (Con)]

My Lords, I certainly agree that the courts would be expected to respect institutional boundaries, and Parliament and the Government should do likewise. The purpose of our consultation is to make sure that we produce the best system we possibly can so that all those involved in the judicial review process—judges, applicants, Government and everyone else—is party to a system which promotes good government and upholds the rule of law.

[Lord Beith (LD) [V]]

My Lords, we know what the Government’s latest ideas on the form of ouster clauses is, because there is one in the draft Bill to repeal the Fixed-term Parliaments Act. Clause 3 states that

“A court of law may not question … the exercise or purported exercise of the powers referred to in section 2 … any decision or purported decision relating to those powers, or … the limits or extent of those powers.”


Is that really the model that the Government are considering for other areas of law, and is it not simply putting the Minister in the position of saying, “I decide what my powers are and nobody can challenge that”?

[Lord Wolfson of Tredegar (Con)]

My Lords, a Minister does not decide what his or her powers are. If there is an ouster clause in an Act of Parliament, it is an ouster clause in an Act that has been passed by Parliament. When one is talking about the Fixed-term Parliaments Act, there may be special considerations because of the issue of Section 9 of the Bill of Rights. Generally, however, what we want to consult on in terms of ouster clauses are the two points that I have identified: first, whether ouster clauses ought to be used; and, secondly, if they are used, how to make sure that Parliament’s intention is given effect to, which we do not think is always the case with ouster clauses at the moment.

[Lord Judge (CB) [V]]

My Lords, the consultation process with which we are about to engage is taking place at just the time when the further expansion of executive power has been brought into sharp relief by the measures to prevent and defeat the coronavirus pandemic—measures, let it be noted, created and extended by statute. I therefore respectfully wonder whether it is consistent with the Minister’s accurate observation that judicial review is a

“vital check on Executive power”—[Official Report, Commons, 18/3/21; col. 506.]

even to begin to consider contracting the ambit of judicial review, a diminution in the ability of the citizen to question the exercise of executive power, and limiting the remedies available to those damaged by its misuse.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, with respect to the noble and learned Lord, we are not seeking to limit the remedies at all. On the contrary: one of the things we are consulting on is whether we should expand the remedies available to the court so that it has more tools in its toolbox that it can use in appropriate cases.

Of course, I understand the noble and learned Lord’s point about the Coronavirus Act. It is important to recognise that, in those contexts, the level of scrutiny that was able to be afforded by Parliament was perhaps different from what it would normally be but, in consulting on these matters, it is no part of this Government’s intention to limit the scope of judicial review. We are trying to make sure that judicial review is appropriately focused for the particular purposes for which it is used. We are consulting on expanding the remedies available, not contracting them.

[Lord Lansley (Con)]

My Lords, I approach this from the standpoint of a parliamentarian, not a lawyer. I observed with some surprise that Parliament did not feature in the review’s terms of reference, so I welcomed the central role for Parliament in the panel’s recommended approach to the questions asked of it. Does my noble friend therefore subscribe to the view expressed by the noble and learned Baroness, Lady Hale, in her submission to the review:

“If Parliament does not like what a court has decided, it can change the law”?


To be preferred even more is that Parliament should be crystal clear in both its terms and purposes about what it wishes the law to be, thereby restricting the scope for judicial review to the conventional purposes of failures of process or abuse. Does my noble friend also share the reservation expressed by the panel about the excessive use of framework legislation, which leaves too much to statutory instruments to set out? The result of that is that the Executive and the judiciary engage in trying to determine what Parliament intended. Will the Government avoid seeking to make the regulations proof against judicial review, and instead put more effort into securing clarity and certainty in primary legislation?

[Lord Wolfson of Tredegar (Con)]

My Lords, I agree entirely with my noble friend that Parliament is sovereign. Its role is central and sovereign when we are considering questions around judicial review—I hope that the Government’s response to the panel’s recommendations reflects that. The noble and learned Baroness, Lady Hale, is of course correct that Parliament can act to reverse any judgment, but I also agree with the panel that it should do that only with great care.

I also agree with my noble friend that Parliament should legislate in terms which are as clear as possible. The corollary of that is that the courts ought to respect Parliament’s obvious intent. I repeat the points I made earlier about ouster clauses in that context.

As for legislation, the factors in play when drafting legislation are many. It is not always easy to decide whether something should be in primary or in secondary legislation, but I certainly agree with my noble friend that clear and unambiguous wording, particularly with regard to the extent of delegated powers, is something to be aimed at.

House adjourned at 8.20 pm.

Covid-19: Impact on the Prison System

Lord Wolfson of Tredegar Excerpts

Monday 22nd March 2021 Lords Chamber

[The Lord Bishop of Gloucester]

To ask Her Majesty’s Government what action they are taking to address the impact of the COVID-19 pandemic on the (1) welfare, (2) rehabilitation, (3) sentence management, and (4) mental health, of prisoners.

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

My Lords, protecting prisoners and their mental health and well-being has been our priority throughout the pandemic. We know that necessary health measures have come at a cost to other work, and we continue to support prisoners with their rehabilitation through vital family contact, education, work and exercise. We have learned lessons from the first wave; we have reduced inter-prison transfers, and we have had better success in moving prisoners to lower-category prisons to aid their rehabilitation.

[The Lord Bishop of Gloucester [V]]

My Lords, as Anglican Bishop to Prisons in England and Wales, I am aware that during the pandemic prison chaplains have continued to provide vital support, but other support services have been limited. Prisoners have been kept up for long periods, self-harm has increased, and Covid deaths and infection rates are on the increase. Therefore, will the Minister agree that the Government should follow the recommendation of the Independent Advisory Panel on Deaths in Custody regarding a wider vaccination of people living and working in prison, not least to allow proper exercise, socialisation and education?

[Lord Wolfson of Tredegar (Con)]

My Lords, first, I pay tribute to the work the chaplaincy organisation does. Chaplains from all faiths do important work in our prisons. They have been there during the pandemic, and that is much appreciated. So far as vaccination is concerned, we follow the Joint Committee on Vaccination and Immunisation’s recommendations on priority groups. Prisons have now been given permission to vaccinate all those in cohort 9, meaning everyone aged 50 and over. Noble Lords will be aware that the age range of the prison population is different from that of the population generally.

[Lord Harris of Haringey (Lab) [V]]

This month, the director of public health for Derbyshire confirmed that high rates of Covid infection in the dales are entirely attributable to the significant outbreak at HMP Sudbury. Indeed, nine of the country’s 10 worst surges in Covid are occurring in areas around prisons with outbreaks. The Minister did not really respond to the right reverend Prelate’s reference to the independent advisory board, which has repeatedly warned the Lord Chancellor that it is unsafe to require unvaccinated prison officers to escort prisoners with Covid to hospital in handcuffs or to require prisoners to share small, poorly ventilated cells with someone who has the virus. That advice has been ignored. This is endangering not only those on the prison estate but those in the surrounding communities where prison officers live. Why?

[Lord Wolfson of Tredegar (Con)]

My Lords, I do not want to repeat what has been said, but on vaccinations we are following the approach of the Joint Committee on Vaccination and Immunisation, which we consider appropriate. The action we have taken in prisons has meant that the number of deaths seen in them is significantly lower than the approximately 2,700 deaths modelled by Public Health England last spring. There is rigorous testing in all our prisons and we do everything to make sure that there is no transmission of the virus into or out of them.

[Lord German (LD) [V]]

If we are to end the miserable sight of the Friday queue of released prisoners with plastic bags standing at the bus stop with nowhere to stay and no work or training, rehabilitation work must be started and continued before and after the prison gate. Meaningful training has all but halted in our prisons, so can the Minister reassure us that everything that can be done will be done—within the next weeks, not months—to enable the programme of rehabilitation training in prisons to be recommenced? If it cannot, will the Government reduce the prison population?

[Lord Wolfson of Tredegar (Con)]

My Lords, I assure the House that everything that can be done within the appropriate prison regimes, given the prevalence of the pandemic, will be done. Releases are a different situation; we monitor them against the prevailing pandemic issues.

[Baroness Rawlings (Con) [V]]

My Lords, Covid has had a debilitating effect on so many people, but it is even more difficult to cope with in prison. What are HMG doing to allow more outside activities in these times, for rehabilitation and to help the mental health of prisoners?

[Lord Wolfson of Tredegar (Con)]

My Lords, the mental health point is critical. We continue to work with our partners in the NHS on mental health and have put in place a number of additional provisions to this effect. On videocalls with families, we have given increased PIN credit to ensure that prisoners can call their families more often, and we have also provided packs which prisoners can use in cells. There is no doubt that mental health is a problem, but one must bear in mind when considering this that many people in the prison population came into prison with mental health issues.

[Lord Laming (CB) [V]]

My Lords, following on from the noble Lord, Lord German, is the Minister aware that there is an increasing number of offenders being discharged from prison on a Friday afternoon with little money and nowhere to live? Does he accept that this is a perfect recipe for further crime and, sadly, more victims of crime? What action is being taken to put in place robust, effective, proper discharge arrangements for these offenders?

[Lord Wolfson of Tredegar (Con)]

My Lords, the position on money is that prisoners are released with a discharge grant. There can also be an extra payment to an accommodation provider, together with an appropriate travel warrant. However, accommodation is key. We are launching a new accommodation service which provides up to 12 weeks of basic temporary accommodation for prison leavers who would otherwise be homeless. We are trialling that in five of the 12 national probation regions in England and Wales. We believe it will mean that 3,000 prison leavers will be kept off the streets. Keeping people off the streets and giving them money until they can access social benefits is critical.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, does the Minister agree with Peter Dawson, director of the Prison Reform Trust, when he said:

“Empathy and kindness from many staff have made a real difference”


to prisoners,

“and it will be full active days spent out of the confines of a nine foot by six foot cell that define recovery in the longer term”?

Does he also agree that videoconferencing can play an important role in keeping prisoners in contact with their families?

[Lord Wolfson of Tredegar (Con)]

My Lords, I am in substantial agreement with the noble Lord on both points. I am very grateful that he mentioned videoconferencing, because that is something we have put a lot of time and resource into. Of course it is not as good as seeing somebody literally face to face, but I believe we have all found out over the last few months that videoconferencing is a decent substitute when real face-to-face contact is not possible.

[Lord Jones of Cheltenham (LD) [V]]

Will the Minister look at the study Rehabilitation by Design, which was sent to the Ministry of Justice and the Home Office, and emulate experiences from around the world which make prisons better places of learning and true rehabilitation as well as making it easier for prison officers to monitor the condition of prisoners?

[Lord Wolfson of Tredegar (Con)]

My Lords, we look at a broad range of research, including the study to which the noble Lord referred. We drew on that study when designing the new-build prisons to ensure that the additional 18,000 prison places are safe, decent and secure. We have committed over £4 billion to deliver these prison places across England and Wales by the middle of this decade.

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, given the Government’s intention as expressed in the Police, Crime, Sentencing and Courts Bill to replace prison terms with community sentences for less serious crimes, would it not make sense to immediately follow the call from the Prison Reform Trust, noting the exceptionally harsh restrictions prisoners have been enduring, for the release of low-risk prisoners who might well not be imprisoned under the brand new law to ease pressure and improve conditions for prisoners and staff, and reduce pandemic risk?

[Lord Wolfson of Tredegar (Con)]

My Lords, the plan for managing releases continues to be guided by the appropriate legislation and a public health assessment of what can safely be implemented. I am sure we will debate the Bill to which the noble Baroness refers at length over the coming months.

[Lord Randall of Uxbridge (Con) [V]]

My Lords, I declare my interest as a trustee of the Saracens Sport Foundation. In normal times, the foundation runs an excellent project that reduced reoffending dramatically among young offenders. It was put on hold and the beneficiaries were allowed out of their cells for only 30 minutes per day because of the lockdown. However, a lockdown letters campaign was organised where many people in the Saracens community wrote to every individual inmate on the project to keep them connected while sharing their own experiences of lockdown. Does my noble friend agree that these are just the sorts of things we must look at to help rehabilitate inmates post Covid?

[Lord Wolfson of Tredegar (Con)]

My Lords, the very short answer is yes. The slightly longer one is that I agree with my noble friend that programmes such as this are just the sorts of things which are important to ensure the successful rehabilitation of inmates. I commend the Saracens Sport Foundation on all its work to support inmates to stay connected during the pandemic. Sport and physical activity play a very important role in prisons. That has been curtailed during the pandemic, but I hope very much that we will be able to resume it, with the support of partners such as the Saracens Sport Foundation, and that we can provide such activity both inside and, with appropriate supervision, outside prison.

Public Health (Coronavirus) (Protection from Eviction) (England) (No. 2) Regulations 2021

Lord Wolfson of Tredegar Excerpts

Thursday 18th March 2021 Lords Chamber

Moved by

[Lord Wolfson of Tredegar]

That the Regulations laid before the House on 19 February be approved.

Relevant document: 47th Report from the Secondary Legislation Scrutiny Committee

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

My Lords, the instrument before us prevents enforcement agents—bailiffs—attending residential premises in England to execute a writ or warrant of possession, except in the most serious circumstances. The House will be familiar with the structure and content of the instrument. Although I will deal with the content of the instrument in due course, I want to begin with its duration, because that matter was raised by several noble Lords in the debate we had on 2 February about this SI’s predecessor.

This instrument applies to enforcement action in England and will be in force until 31 March this year. It extends restrictions on the enforcement of evictions that have been in place since mid-November. The current SI expires on 22 February. On 2 February, when we debated the previous statutory instrument, a number of noble Lords raised concerns that the ban was not in place for long enough and that both landlords and tenants would benefit from greater clarity about how long the restrictions would be in force. We have had to balance that need for clarity against an ongoing and changing pandemic, but we have listened to the views expressed by noble Lords. On 10 March, the Government announced that we intend to extend these protections until 31 May, and we will lay legislation to do so shortly. So although the formal position is that this SI takes us up to 31 March, the legislation we will bring forward, as we have already announced, will give people clarity and assurance until 31 May.

That 31 May date is broadly in line with the roadmap out of lockdown. Noble Lords will need no reminding from me that step 3 of the roadmap will be taken no earlier than 17 May, following a review of the data as it appears at the time. Step 3 sees a number of restrictions lifted, including the ban on domestic overnight stays, which is relevant in this context. Noble Lords might ask why the proposed date is 31 May and not linked to step 4, which is scheduled for no earlier than 21 June. The short answer is that we have to remember, when looking at 31 May, that in most cases, bailiffs are now required to give 14 days’ notice of an eviction. In practice, protection from enforcement of evictions will be afforded, in most cases, until mid-June. We believe that that strikes the right balance in the circumstances.

The substantive provisions of the instrument are the same as in the one we debated on 2 February, apart from the duration, which I have already addressed. As I set out on 2 February, the Government have put in place unprecedented financial support to protect renters directly through measures such as these regulations and increasing the local housing allowance rate to the 30th percentile of local market rates in each area. We have made £180 million available to local authorities in discretionary housing payments. Of course, there is also the furlough scheme, support for the self-employed and bounceback loans.

While I will not go through the detail of that again, let me highlight two provisions in the Budget that are relevant in this context. First, as noble Lords will be aware, the furlough scheme was extended until the end of September. Secondly, the support for the self-employed was extended in scope—600,000 people who were not previously entitled are now entitled—and duration, to the end of September. We continue to provide limited exemptions from the ban on enforcement. They are, as previously set out, broadly as follows: where the claim is against trespassers who are persons unknown; where the order for possession was made wholly or partly on the grounds of antisocial behaviour, nuisance, false statements, domestic abuse in social tenancies or substantial rent arrears equivalent to six months’ rent; and where the order for possession was made wholly or partly on the grounds of the death of the tenant, and the enforcement agent is satisfied that the property is unoccupied. Those exemptions are applied by the court on a case-by-case basis.

The critical point is that given that broad sweep of financial support, we consider it unlikely that a full six months of arrears would have accumulated solely because of the effects of Covid-19. Rather, where that exemption applies, it will likely involve significant levels of rent arrears that predate the pandemic, where landlords may now have been waiting for over a year without rent being paid.

In addition, where the court applies an exemption, bailiffs have to give tenants at least 14 days’ notice of an eviction in most circumstances and have been asked not to enforce evictions where a tenant has symptoms of Covid-19 or is self-isolating. In addition, we have introduced a requirement in the Coronavirus Act that landlords in all but the most serious circumstances must provide tenants with six months’ notice before beginning formal possession proceedings in court.

Previously, in Section 21 cases, two months’ notice was needed, and other grounds required as little as two weeks’ notice. The requirement for longer notice was to apply until 31 March, but the Housing Minister laid an SI last week to extend that period also to 31 May. Extending the notice period obviously gives additional protection to tenants. Taking this in the round, that requirement to provide six months’ notice in the majority of cases means that most renters now served notice by a landlord can stay in their homes until September 2021. Our statistics show that the number of possession cases has fallen significantly. In the last quarter of 2020, they were down 67% compared to the same quarter the previous year.

In the limited time I have, I want to take a moment to express my gratitude to the Civil Procedure Rule Committee for addressing the challenges the coronavirus pandemic has caused the justice system and for the considerable work done at some pace by both that committee and the working party under the chairmanship of Sir Robin Knowles. Since I mentioned the judiciary, I extend my respectful welcome to the noble and learned Lord, Lord Etherton, a former chancellor of the High Court and, more recently, Master of the Rolls. Like all noble Lords, I look forward to his maiden speech later in this debate.

So far as the courts are concerned, temporary arrangements remain in place to ensure appropriate support. We have introduced new review stages and a requirement that cases have to be reactivated, and we are piloting a new, free mediation service until August this year. We are conscious that we also have to think about landlords. We consider that the best way to protect landlords is to provide the financial help we have been providing to help renters pay their rent. We are grateful to landlords for their forbearance during this unprecedented time, and we encourage all renters not only to pay their rent but to have an early conversation with their landlord if they are in difficulties.

This instrument provides tenants with protection from eviction up to 31 March. We have announced that we will bring forward legislation to extend that to 31 May. We are trying to strike an appropriate balance during an unprecedented public health crisis to avoid placing additional burdens on the NHS and local authorities. For those reasons, I commend these regulations to the House.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, I should have added that there is time in this debate for the maiden speaker to have a whole extra minute and the welcomer a whole extra 90 seconds if they wish to be so indulgent.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I fear that the somewhat innocuous title of these regulations ought to have a health warning below it along the lines of “Light blue touchpaper and stand well back” because some of the speeches have taken us far and wide.

Let me start with some of the central points. The noble Lord, Lord Hain, said that we live in a police state. We do not. We live in a state with police. I assure the noble Lord and the House that, as I have said on a number of occasions, the rule of law runs through me like “Blackpool” runs through a stick of Blackpool rock. I acknowledge the importance of protest; we will debate that issue in other Bills. I assure the noble Lord and other speakers that that is not an issue so far as I am concerned.

As I have mentioned the rule of law, I want to take a moment again to welcome the noble and learned Lord, Lord Etherton. I regret that he had such limited time for his maiden speech, although at least he got to the Chamber—I was stuck in Grand Committee. He made two points in the short time he had. First, he used the word “unique”. We are indeed living in unique times and must have unique responses. Secondly, he talked about a cross-sector working group. Indeed, a number of the points made by noble Lords in this debate show that what we are talking about is not just a Ministry of Justice issue; it is really an MHCLG issue, and a number of the issues will have been heard by that department. I will personally make sure that they are passed on because, although the Ministry of Justice is responsible for courts and procedures, underlying housing policy, which a lot of contributions have gone to, is not the responsibility of my department. However, the noble and learned Lord, Lord Etherton, is right that, in this area, as in so many areas of government—in my short time here, I have realised this—the acronym OGD, standing for “other government departments”, is about the most important acronym there is. In fact, it seems that all acronyms in the Civil Service are three letters. It loves its three-letter acronyms. I might start calling them the TLAs.

My noble friend Lord Cormack and other noble Lords made another broad point about the way we deal with coronavirus business in this House. I say with great respect that that is well above my pay grade, not least because my pay grade is an unpaid pay grade. I am sure that that point will have been heard by the relevant authorities, but I hope that my noble friend Lord Cormack and others will forgive me if I do not respond to them particularly.

My noble friend Lord Lilley made a broad point about the pandemic measures. In so far as I was included in his charge of palpable nonsense, I respectfully but firmly disagree. What we are seeking to do here is within the public health regulations. We are seeking to provide a balance between the undoubted needs of renters and the undoubted demands of landlords.

Turning to some of the points that are more relevant to this SI, the noble Lord, Lord Shipley, asked about short extensions. That is why I indicated to the House—clearly, I hope—that we will extend this to 31 May. I assure my noble friend Lady McIntosh of Pickering that there will not be a gap. We will ensure that the regulations are seamless.

Why do we not want to put a loan system in place? It is because we do not think that adding more debt is the way out here. We prefer to proceed as the Chancellor has proceeded by giving non-repayable finance to renters and enabling landlords to benefit from such things as mortgage payment holidays, which are available until July.

My noble friend Lord Bourne of Aberystwyth— I am also a former tenant of Gray’s Inn, though I should make it clear I was not evicted—asked whether we are putting something in place for the long term. That is, as I have said, a matter for the Ministry of Housing, Communities and Local Government, but I assure my noble friend and the House that, while it is always a pleasure to speak from this Dispatch Box, I do not want to have to come back time and again with Groundhog Day regulations either. That is why I have done my best to ensure that everybody now has visibility until the end of May.

I will pass on to my colleagues at MHCLG the proposal from the noble Lord, Lord Best, that housing could be sold to social housing landlords.

The noble Baroness, Lady Tyler of Enfield, said that stamp duty helps homeowners; it helps homebuyers, and the reasons for the stamp duty holiday were set out in the Budget. We are trying to maintain a fair balance here between renters on the one hand and landlords on the other. In that context, the point made by the noble Lord, Lord McCrea of Magherafelt and Cookstown, is absolutely right. Evictions are the last resort, which is why we have structured the exemptions in the way we have. The exemptions list is designed to ensure that evictions take place only in cases where they are really required.

One exemption, as the noble Baroness, Lady Greengross, said, is the six months of arrears. As I said in opening this debate, those arrears must be looked at in the context of the unprecedented financial support that this Government have provided to renters.

The noble Baroness, Lady Bennett of Manor Castle, said that we are playing fast and loose with the law. I assure her that that is the last thing I would allow to happen. She may disagree with my views on legal matters, but I can assure her that respect for the rule of law is, as I have said, part of my very being.

Ultimately, as a number of noble Lords mentioned, including the noble Lord, Lord Carrington, we have a balance between renters and landlords. He was right to highlight small landlords. Although I take the point made by the noble Baroness, Lady Grender, that some landlords own a number of properties, there are vast numbers of landlords who own only one or two properties and look to the income from them to pay their outgoings and, for a number of people, their pension income. Although I heard with respect the passionate speech of the noble Baroness, Lady Ritchie of Downpatrick, she looked at it only—I say respectfully—from the point of view of renters.

Our measures have had significant results. The noble Baroness, Lady Grender, said there were over 500 eviction orders in the last quarter of 2020, but that must be compared with the last quarter of 2019—a normal quarter—when there were 22,444. These measures have had a very significant impact. As this debate has shown, I am assailed on the one hand by renters for not doing enough and on the other by landlords for not considering their position. In response to my noble friend Lady Altmann, I am afraid we do not see overseas landlords coming home as a special case; their right to possession will have to be found in the regulations as they are set out.

I conclude the time I have available on a more positive note. A number of speakers mentioned the mediation scheme. Mediation is quite new to our system of law but, in the time that we have had it, it has proved its worth time and again. This is only one area where I am confident that mediation schemes can in many cases achieve far more than a formal court process, and I am proud that we have started the pilot. I confirm that we will look at its results very carefully to see whether we can roll out mediation not only in these cases but across civil justice much more broadly. My experience from my previous incarnation as a practising lawyer and the materials I have read as a Minister show that, in many cases, mediation enables people to resolve their disputes and vindicate their legal rights in a better way than a formal court process can.

In the short time still available, I will respond to a couple of points which I have not yet referred to. When at university, the noble Lord, Lord Bilimoria, squeezed a five-hour essay into two hours’ preparation; today he squeezed a five-minute speech into the two minutes he was allotted. He highlighted the balance we are seeking to draw, and that is the response I give, with respect, to the two Front-Bench speakers, the noble Baroness, Lady Grender, and the noble Lord, Lord Ponsonby of Shulbrede. We will look at what other parts of the country do; I am a great fan of Scots law and will impress on my MHCLG colleagues that they should look at Scotland and other parts of our United Kingdom for answers on this as well.

I assure the noble Lord, Lord Ponsonby, that there is work on what he calls a long-term plan. It is not for me—a mere humble Ministry of Justice Minister—to reveal on a Thursday afternoon the details of that plan, but I am conscious that it is being worked on. Of course we do not want a cliff edge. We need to work out what the response will be from 31 May onwards.

Given the time, I hope that the House will permit me to respond in writing to the points I have not been able to deal with orally. I apologise to those speakers to whom I have not been able to respond personally. I acknowledge the strength of feeling across the House which goes beyond these regulations but, if I may ask the House to focus for a moment on these regulations, I commend them to the House and beg to move.

Motion agreed.

Independent Office for Police Conduct

Lord Wolfson of Tredegar Excerpts

Tuesday 16th March 2021 Lords Chamber

[Lord Lexden]

To ask Her Majesty’s Government what assessment they have made of the work of the Independent Office for Police Conduct in relation to Operation Midland.

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

My Lords, following the publication of the IOPC’s investigation report, in October 2019 the Home Secretary asked the director-general to set out his plan for improving public confidence in the IOPC. The Home Secretary has been clear that she believes that there are outstanding questions and will discuss these with Sir Richard Henriques. We also welcome the Home Affairs Committee’s current inquiry into the police complaint system. We understand that the committee is taking evidence in relation to Operation Midland.

[Lord Lexden (Con)]

My Lords, would we not all agree across the House with the following words:

“I find it quite extraordinary that anyone who is referred for misconduct is not interviewed”?


Would we not all share courageous Lady Brittan’s astonishment that a deputy assistant commissioner of the Metropolitan Police—a man who was in charge of the disastrous Operation Midland and who allowed false evidence to be used to obtain search warrants—was not asked a single question in person before being cleared by the IOPC of allegations of misconduct? Why has the distinguished former High Court judge Sir Richard Henriques, to whom my noble friend referred, not yet received a reply to his request last month for an investigation into the

“apparent condoning of police criminality by its notional watchdog”

and other serious issues? Why is Sir Richard still waiting for an answer, and when will the investigation be started?

[Lord Wolfson of Tredegar (Con)]

My Lords, as I understand it, Lady Brittan has received an apology from the Commissioner of the Metropolitan Police; again, I extend my sympathy to her for the events to which she and indeed her late husband were subjected. The IOPC is an independent body, which takes its decisions independently from the Government and from the police. I cannot and will not comment on the way in which the IOPC conducts its own investigations. My understanding is that Sir Richard will receive a letter from the Home Secretary. However, it is worth bearing in mind in relation to his more recent comments that in his report itself Sir Richard said that

“the officers had conducted this investigation in a conscientious manner and with propriety and honesty.”

[Lord Hunt of Wirral (Con) [V]]

Like my noble friend Lord Lexden, I hope that Ministers will initiate a comprehensive inquiry into the manifest shortcomings of Operation Midland and the IOPC. I also wonder whether the Minister shares the widely held view that the considerable injustice done to all those who have been defamed can never been remedied without expanding the remit of any such inquiry to include Midland’s associated and no less egregious scandal, Operation Conifer.

[Lord Wolfson of Tredegar (Con)]

My Lords, as regards injustice, as I have previously said, the commissioner has apologised both to Lady Brittan and to Lord Brammall. On the shortcomings of the IOPC, we agree that there is room for further progress. The Home Secretary has raised concerns about the IOPC’s performance, and in October 2019 she formally requested a report on the IOPC’s plans to increase efficiency and effectiveness—that is on the Home Office website. The Government are not minded to initiate a public inquiry into either Operation Midland or Operation Conifer, because both operations have already been subject to considerable scrutiny.

[Lord Berkeley of Knighton (CB) [V]]

My Lords, we all want to avoid terrible cases like this. Some people are concerned that if there is anonymity up until charging, which of course would stop cases like this one and that of Cliff Richard, people may not come forward with important information. However, does the Minister agree that if people come forward after charging, that is still possible and in fact more possible, because the CPS will by then have looked at the allegations and found out whether there was anything worth pursuing?

[Lord Wolfson of Tredegar (Con)]

My Lords, there is indeed a difference between pre and post charge. The Government believe that, in principle and in general, there should be a right to anonymity pre charge in respect of all offences. But—it is an important but—there will be exceptional circumstances where there are legitimate policing reasons for naming a suspect, such as an imminent threat to life. The guidance in this regard is governed by the College of Policing’s authorised professional practice on media relations, which states:

“Police will not name those arrested, or suspected of a crime, save in exceptional circumstances … such as a threat to life, the prevention or detection of crime, or where police have made a public warning”.


After charge, as the noble Lord indicates, the position is different.

[Lord Campbell-Savours (Lab) [V]]

My Lords, should we not congratulate the Mail and in particular journalist Stephen Wright for his forensic work in unravelling the Beech affair and their exposure of deficiencies in the Rodhouse-led investigations? Why does not Mr Rodhouse, who prior to the abuse scandals had a reputation for competence and thorough investigations, interview and explain the background to his actions? We all make mistakes in life and sometimes admitting them can be both therapeutic and clear the air. At least the public would then understand what has happened.

[Lord Wolfson of Tredegar (Con)]

My Lords, so far as the Mail’s investigations are concerned, I would make three points. First, the message must go out that if you deliberately lie about sexual abuse, you will go to prison for a long time—in this case, 18 years. Secondly, as the noble Lord said, people make mistakes. The MPS made mistakes, it has learned, it needed to learn, and it is continuing to learn. Thirdly, however, the message must go out: if you are a victim of child sex abuse, even if it is historic, come forward. We have successfully prosecuted and obtained over 5,000 convictions, and in every case we will seek to ensure that justice is done, whether that be a conviction or an acquittal.

[Baroness Harris of Richmond (LD) [V]]

My Lords, one of the major recommendations of Sir Richard’s review was that the Met’s media communications policy should be amended to avoid any details of age or geography being released to the public in relation to the arrest, search, interview or bail of any suspect. Is the Minister satisfied that this recommendation is being followed and monitored to ensure that deviation from it will constitute a disciplinary offence?

[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.

[The Lord Speaker (Lord Fowler)]

I call the noble Lord, Lord King of Bridgwater. No? I call the noble Baroness, Lady Jones of Moulsecoomb.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, in my activist world I hear a lot of complaints against the IOPC and its previous incarnation. I am curious about the fact that a lot of former police officers work there as investigators. It has been suggested that the IOPC does not investigate as thoroughly as it might because it has too many former police officers. Has the Home Office paid any attention to that?

[Lord Wolfson of Tredegar (Con)]

My Lords, one must have a balance. If you are going to investigate the police, you need some people in your organisation who have the skill set to know how the police operate. The figures are these. Overall, 23% of IOPC staff are former police officers—that is 28% in operations. However, first, they do not investigate their former force; and secondly, most senior decision-makers are not former police officers. By law, the director-general cannot be a former police officer, and the current director-general has put in place a practice that the two deputies are also not former police officers.

[The Lord Speaker (Lord Fowler)]

My Lords, I regret that the time allowed for this Question has elapsed—not least because supplementaries and answers were too long.

Prisons: Self-harm Among Women Prisoners

Lord Wolfson of Tredegar Excerpts

Monday 15th March 2021 Lords Chamber

[Baroness Eaton]

To ask Her Majesty’s Government what steps they are taking to address the level of self-harm among women prisoners.

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

My Lords, we are determined to reduce the level of self-harm in the women’s estate. We have established a women’s estate self-harm task force to address this. Alongside interventions to mitigate the impact of Covid-19, such as increased video calls with loved ones, the task force is co-ordinating longer-term work—including the introduction of key workers, expanding therapeutic services and improving gender-specific training—to address the factors driving self-harm in the women’s estate.

[Baroness Eaton (Con) [V]]

I thank my noble friend the Minister for his reply. Female offenders are more vulnerable than male offenders and benefit from help and guidance from social workers. One of the recommendations in the Farmer review of female offenders published in 2019 was to have a social worker based in all prisons to support vulnerable women. What progress has been made to achieve this?

[Lord Wolfson of Tredegar (Con)]

My Lords, my noble friend raises an important point. We are working to improve the availability of social work in prisons. She will be aware, of course, that at the moment all prisons are hampered by the Covid-19 pandemic in what they can provide. However, for example, we have been able to reintroduce chaplaincy into prisons at a very significant level, and the relevant authorities are trying to ensure that all services, including social workers, can be reintroduced as well.

[Lord Harris of Haringey (Lab) [V]]

My Lords, the levels of reported self-harm are extremely concerning. Five and half years ago my review, Changing Prisons, Saving Lives, found that the despair that led to self-harm and suicide was exacerbated by prisoners being isolated without access to purposeful activity and sufficient contact with their families. Over the last year, what proportion of time have women prisoners been on regimes that meant that they were locked in their cells for 23 hours or more a day? What has been the impact of Covid on the number of face-to-face contacts they have had with their families?

[Lord Wolfson of Tredegar (Con)]

The noble Lord asked two questions. On the first point, during the Covid pandemic, prison estates have tried to put in regimes which are as generous as possible given the surrounding circumstances. He will be aware, like everybody in this House, that those circumstances have changed rapidly from time to time, so the figures are not available because the data cannot accurately capture that constantly changing picture. So far as contact with family members is concerned, we have doubled the amount of phone credit given to prisoners, and we have introduced “purple visits”—video calls—so that prisoners can see their families and loved ones as well.

[Lord Ramsbotham (CB) [V]]

My Lords, is the Minister aware that correct nutrition can have a considerable impact on those considering self-harm? In asking this, I must declare an interest as president of the Institute for Food, Brain & Behaviour, one of whose fellows published an article on the subject as long ago as 1976.

[Lord Wolfson of Tredegar (Con)]

My Lords, nutrition is obviously an important part of the picture, and perhaps it is a wider point than the noble Lord identifies. People come into prison having suffered from poor nutrition, which reminds us that a lot of them are self-harming before they come into prison. Self-harm is not just something which happens in prison; it is a problem brought into prison from outside as well.

[Baroness Fall (Con) [V]]

My Lords, we hear that self-harm by women in prison today has increased by an alarming 8%. We know too that 60% of women in prison today have experienced domestic abuse. The vast majority in prison are held for non-violent offences on short custodial sentences, and many of these women go on to reoffend—a destructive and costly cycle. Does the Minister agree that short custodial orders should be a last resort and that we must seek alternatives, where appropriate, within the community? Will he inform the House on the progress made to pilot five residential women’s centres, as set out in the Government’s Female Offender Strategy?

[Lord Wolfson of Tredegar (Con)]

My Lords, the short answer to my noble friend’s first question is yes. The reason is that women generally commit less serious offences than men; therefore they get shorter custodial sentences. Short custodial sentences are a problem because they can have significant negative impacts, in terms of family, losing accommodation and losing employment, while not really giving prison governors and the authorities an opportunity to do anything meaningful with regard to rehabilitation. So far as the first residential women’s centres are concerned, we announced that our first one will be in Wales. I am particularly pleased—if I may say so—that a suitable site in south Wales is now being looked at for the second site. That will provide a robust community alternative for women who would otherwise receive a very short custodial sentence.

[Lord German (LD) [V]]

Women prisoners engage in self-harm as a method of coping with being in prison and separation from their children, of whom they are probably the main carer. At the moment, without visits, and with increasing numbers held on remand and in solitary confinement, why have the Government not made use of their own early release scheme, which ground to a halt last year? Can the Minister tell the House how many times in the last year the 42-day maximum solitary confinement rule has been breached for women prisoners—or does 23 hours locked alone in a cell not count as solitary confinement?

[Lord Wolfson of Tredegar (Con)]

My Lords, we should not proceed on the basis that self-harm is something which starts in prison. On the contrary, a number of women—perhaps many women—have been using self-harm to cope for many years. That is exacerbated, no doubt, in the prison environment. We have to remember when we talk about the incidence of self-harm in prison that this is characterised by a small number of women who self-harm multiple times. That does not mean that it is not a problem; it means that we need to focus our resources on that relatively small number of women who self-harm repeatedly. The noble Lord asked for particular statistics; I will have to write to him on that matter.

[The Lord Bishop of Gloucester [V]]

My Lords, as has been said, anxiety is considerable for mothers in prison. The Visiting Mum scheme in HMP Eastwood Park found that the incidence of self-harm reduced when women had regular support contact with their children. What are the Government doing to ensure that motherhood is properly highlighted in pre-sentencing reports and that prison sentences are not used for mothers when a community-based intervention would be appropriate—as just highlighted by the Minister himself?

[Lord Wolfson of Tredegar (Con)]

My Lords, whether somebody is a mother ought to be a factor in any pre-sentencing report. However, with great respect to the right reverend Prelate, we cannot have a rule that, merely and solely because someone is a mother, they can never be sent to prison. We are trying to ensure that mothers can maintain contact with their family, and in particular their children. As I said earlier, during the Covid-19 pandemic we have set up video calls, because our research shows, and the feedback indicates, that seeing children on the screen is a very different experience from merely listening to them on the telephone.

[Lord Garnier (Con) [V]]

My Lords, I refer to my trusteeship of the Prison Reform Trust, set out in the register. The recent PRT report What About Me?, on the impact on children when mothers are involved in the criminal justice system, highlighted the damaging but unsurprising consequences for children when their mothers are in prison. But will my noble friend agree that what is more surprising—and plain shocking—is that in a Written Parliamentary Answer to a Question in January 2018, the Parliamentary Under-Secretary of State for Justice stated that the number of women with children under 18 when sentenced is

“not held centrally and can only be obtained at disproportionate cost.”

How can a civilised prison system counter the incidence of self-harm if it does not know basic information such as that?

[Lord Wolfson of Tredegar (Con)]

My Lords, my noble and learned friend raises an important point. As I said, one of the factors in self-harm is, no doubt, being separated from one’s children. One would therefore want to know how many women in prison are mothers, and indeed how many children they have. Perhaps I can undertake to look into the particular point which my noble and learned friend has raised and write to him on it.

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, given the stark 24% rise in self-harm by women in prison in the most recent Ministry of Justice statistics and the need for a whole-system approach to address substance misuse, stable housing and abusive partners, what measures are the Government advocating for the probation service to adopt to give sentencers the confidence to use community-based sentences? As we are coming out of lockdown, when will probation be able to offer women offenders on community sentences full access to face-to-face interventions and the support that is expected by the sentencers?

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[Lord Wolfson of Tredegar (Con)]

My Lords, on the noble Lord’s first question, we remain committed to the strategy set out in the Female Offender Strategy: that is, fewer women offending and reoffending, with a greater proportion of women managed in the community successfully, and therefore fewer women in custody and better conditions for those in custody. Through the community sentence treatment requirement programme, health and justice partners are working together to ensure that greater use is made of mental health, alcohol and drug treatment requirements as part of community sentences. On the second part of the question, on probation, given the pandemic, probation areas are working on their recovery plans and will gradually be recovering their service in line with the staged approach that is being taken by Her Majesty’s Government generally.

[The Lord Speaker (Lord Fowler)]

My Lords, the time allowed for this Question has elapsed, and that brings Question Time to an end.

Counter-Terrorism and Sentencing Bill

Lord Wolfson of Tredegar Excerpts

3rd reading
Thursday 11th March 2021 Lords Chamber

Moved by

[Lord Wolfson of Tredegar]

That the Bill be now read a third time.

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

My Lords, as the UK Government have made clear throughout all stages of the Bill, we are committed to working closely with the devolved Administrations on this legislation to ensure that the important changes made by the Bill will make the UK as safe as possible from the threats posed by terrorism.

While terrorism and national security are reserved matters, some of the provisions of this legislation engage the Sewel convention, both in Scotland and in Northern Ireland. I am pleased to confirm to the House that the Scottish Parliament, on the advice of the Scottish Government, has passed a legislative consent Motion in support of the Bill. However, despite lengthy and continued engagement with the Northern Ireland Executive, it has decided not to proceed with recommending that legislative consent be given for the Bill by the Northern Ireland Assembly.

I am grateful for the collaborative engagement from officials in both the Scottish Government and the Northern Ireland Executive’s Department of Justice, which has provided essential support in the development of this legislation. While on this occasion legislative consent has not been secured from the Northern Ireland Assembly, I reassure noble Lords that the UK Government will continue, as they always have done, to engage with the Northern Ireland Executive and seek legislative consent support for all future Bills which engage the LCM process in the Northern Ireland Assembly. On behalf of my noble and learned friend Lord Stewart of Dirleton, I beg to move that the Bill be read a third time.

Bill read a third time.

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Moved by

[Lord Wolfson of Tredegar]

That the Bill do now pass.

[Lord Wolfson of Tredegar (Con)]

I would like to take a brief opportunity to thank noble Lords. We have limited time, but I want to give some thanks for their interest and contributions thus far to the progress of the Bill. I am grateful to noble Lords across the House who have contributed eloquently to the debates on Second Reading, in Committee and on Report.

Some strong and differing opinions have been expressed on certain provisions in this legislation. I am grateful for the scrutiny that that has brought, and especially for the co-operative and constructive spirit in which the debates have taken place. I am equally grateful for the broad support that most of the measures in the Bill have received so far.

I particularly thank, at this point, noble Lords from the Labour and Liberal Democrat Front Benches, who contributed a number of important interventions to debates on measures in the Bill, particularly on polygraph examinations and the work to deradicalise and rehabilitate terrorist offenders in the prison estate. I am especially pleased that so many noble Lords found the discussion in the House, and the complementary briefing sessions on these subjects, both thought-provoking and helpful. I hope that the House is now confident of the intention behind these measures and is reassured that the Government keep this important work under continuous review.

Noble Lords have contributed to a rich discussion on the changes being made to terrorism prevention and investigation measures—TPIMs, as we usually call them. The Government remain clear on the importance of strengthening this vital risk management tool, and we are grateful to all Peers who have spoken on the issue, especially those on the Liberal Democrat and Labour Front Benches, and also the noble Lord, Lord Anderson of Ipswich, for their thoughtful contributions to debate.

The amendments made in this House to the TPIMs provisions, tabled by the Government and by the noble Lord, Lord Anderson of Ipswich, will now be considered by the other place, and I look forward to returning to this matter when the Bill comes back to this House. Members of this House have recognised its importance, and we have discussed openly the complexity and challenges that dealing with terrorism poses.

The Government are confident that the Bill will strengthen the approach taken to the sentencing and release of terrorist offenders, by ensuring that serious and dangerous terrorist offenders will spend longer in custody, properly reflecting the seriousness of the offences they have committed. Crucially, it will improve the Government’s ability to manage and monitor terrorist offenders when they are released. This will ultimately provide better protection for the public and keep our country safe. For all these reasons, I hope that the Bill will progress quickly through the other place, and I look forward to discussing it further on its return to this House.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful for the words expressed by all the speakers. First, I in particular thank the noble and learned Lord, Lord Falconer of Thoroton. He is right that I am something of a neophyte when it comes to the work of this House, so thanks from him, with his extensive experience, is especially well received. He was also correct to draw attention and pay tribute to the other two members of the ministerial team and the officials who worked on the Bill. My noble friend Lord Parkinson of Whitley Bay did a lot of the heavy lifting, and my noble and learned friend Lord Stewart of Dirleton was, as I think the noble Lord, Lord Carlile of Berriew put it once in Committee, the other half of the Government’s twin strike force. I am very grateful to both my colleagues for everything they have done.

As I mentioned the noble Lord, Lord Carlile of Berriew, I benefited personally—I know we all did—from his experience, both in this Chamber and in our discussions outside, and I am confident that they will continue on other legislative matters.

Finally, I also thank the noble Lord, Lord Paddick, for his comments. Of course, we had some differences on certain issues in the Bill, but they were differences of principle; both sides were, I hope, well and fairly argued; and I am sure that those discussions and debates also led to a better Bill in the end. The noble Lord was part of a triple strike force, and he was right to mention his colleagues, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Marks of Henley-on-Thames, who also did a lot of work in this regard. I see the time, and therefore conclude my remarks there.

Bill passed and returned to the Commons with amendments.

Domestic Abuse Bill

Lord Wolfson of Tredegar Excerpts

Report stage
Wednesday 10th March 2021 Lords Chamber

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

My Lords, as I indicated in Committee, I agree with the general aim of the amendment, which is to ensure that criminal liability and punishment for a breach of a DAPO should occur only if the breach is proved to the criminal standard of proof. I heard from the noble Baroness, Lady Hamwee, and a number of other contributors to this short debate that the essential purpose of the amendment is for me to repeat from the Dispatch Box what I set out in a letter. I will aim to do just that.

I therefore make two main points. First, a breach of a DAPO is a criminal offence. As with all criminal offences, this will require the police to investigate the case and refer it to prosecutors, who will decide whether to pursue a prosecution. Secondly, the fact that a breach of a DAPO is a criminal offence means that, as with all criminal offences, the criminal standard of proof will apply automatically when the court is dealing with the case. A criminal conviction cannot be entered, or criminal sanctions imposed, unless and until the criminal standard of proof has been met.

The criminal standard of proof applies, therefore, when we are dealing with a breach of a DAPO. It does not apply when we are dealing with the making a DAPO. When we look at whether a DAPO should be made, the civil standard of proof applies—that is, the balance of probabilities. But in order to impose criminal sanctions for its breach, the criminal standard of proof will apply—that is, beyond reasonable doubt. I hope that has set out the position clearly and unambiguously.

Picking up on the point made by the noble Baroness, Lady Fox of Buckley, “beyond reasonable doubt” is the standard of proof; “without reasonable excuse” is an element of the offence, which would have to be proved to that standard. That is the difference between the two phrases.

We have taken this approach to the DAPO because we want to send a clear message to perpetrators that breach of an order is a serious matter and will be acted on. As I stated in Committee and during my engagement with the noble Baroness and others since, this approach is similar to other civil protective orders that carry criminal liability for breach, such as the non-molestation order, stalking protection order and knife crime prevention order. The approach is therefore consistent with our existing legal framework.

The noble Baroness, Lady Hamwee, asked why some victims may not want to go for criminal sanctions. That might not be their preference for a number of reasons. First, they may be concerned about the possible consequences for their partner or ex-partner and would not want them criminalised for a breach or, indeed, if the point of the question was, “Why isn’t the original order criminal?”

Fundamentally, the proposed orders are intended to be preventive and not punitive. They will enable courts to impose positive requirements which can help to achieve long-term sustainable behaviour change and challenge perpetrators to address their abusive behaviour. For example, the perpetrator might be required to attend a behaviour change programme or an alcohol or substance misuse programme, or undergo a mental health assessment. That may help those victims who wish to maintain a relationship with their partner or family member but want the abuse to stop. It is a strength of the DAPO that it is such a flexible remedy.

The noble Baroness, Lady Hamwee, raised contempt of court. If a victim wanted a breach of an order other than one made in a magistrates’ court to be dealt with as a civil contempt of court, they could make a committal application to the court, including for an arrest warrant, if necessary. In those circumstances, the court has the power to remand the perpetrator on bail or in custody. We would expect that victims’ views would be considered, together with other questions of public interest, when deciding which sanction for breach is appropriate.

On her point about the guidance, the noble Baroness, Lady Hamwee, will recall that in Clause 48 there is a provision for guidance to the police, and in Clause 73 there is provision for guidance to others, including victims.

This is one of the strengths of the DAPO when compared to other existing orders used in these cases, such as the domestic violence protection order. The responses to our consultation highlighted that the absence of a criminal sanction following breach of the DVPO limits the effectiveness of that order. We have therefore ensured that non-compliance with a DAPO is met with the appropriate consequences. In that regard, I reiterate a point I made in Committee: in its report, the Joint Committee did not raise issues with using the civil standard of proof for making a DAPO when examining the draft Bill.

As the noble Lord, Lord Ponsonby, noted, the noble Lord, Lord Paddick, raised on a number of occasions that we are making a move from civil standard to criminal standard when breached. With respect, I have set out the Government’s position in response to that on a number of occasions. We are satisfied that the system we have in the Bill is appropriate. There is nothing in the point, I would respectfully say, that there is something wrong with criminal sanctions on breach for an order made on the balance of probabilities. They are two conceptually distinct questions First, what is the standard for the order to be made? Secondly, what do you have to prove for criminal sanctions when there is a breach of that order?

As for the question on going to the magistrates’ court, one of the strengths of this order is that it can be issued quickly in response to a crisis incident, as with the existing domestic violence protection order. As the noble Lord, Lord Ponsonby of Shulbrede, said, ultimately, we are dealing with the question of protection for victims.

I hope that my explanations on the standard of proof in this short debate, alongside the explanations I provided in Committee and my subsequent discussions with noble Lords, have been helpful. I hope that what I have said today has been clear and unambiguous. I therefore respectfully invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee (LD) [V]]

My Lords, I think my noble friend Lord Paddick’s question about the underlying architecture, if that is the right phrase, still stands, but I will not pursue it now. I am grateful to the Minister for all he said about the application of the provisions. I did not make myself as clear as I should have done about what he explained as someone not wanting to go for criminal prosecution. That was not quite my point, which was about inability and due process, which is a term we would do well to keep in mind—due process for both parties.

The Minister has been very clear in his explanation of the standard. I am conscious of how much business the House has to get through today, so I will not prolong this. I beg leave to withdraw the amendment.

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[Lord Wolfson of Tredegar (Con)]

My Lords, first, I congratulate my noble friend Lady Newlove on bringing forward these amendments, which, as she said, will create a new criminal offence of strangulation and suffocation. A number of tributes have been paid to my noble friend; they are all well deserved and I associate myself and the Government with them. If I may pick up one phrase used by the noble Lord, Lord Blunkett, she has made a real difference and, moreover, in a really important area. I assure him and the House that we listen. I will listen to noble Peers on this and on other matters. We will not always agree but I will always listen.

There have been a number of powerful and brief contributions. The noble Baroness, Lady Jones of Moulsecoomb, was kind enough to thank the Government, which is very welcome. I will seek to make it a more regular occurrence but it is warmly accepted. As the noble Lord, Lord Hunt of Kings Heath, mentioned, and as my noble friend Lady Newlove identified, a number of organisations have worked hard in this area. Their names are on the record and they deserve the credit as well.

I am also personally grateful to the noble Lord, Lord Marks of Henley-on-Thames, for the discussions which he and I have had on this matter, together with the noble Lord, Lord Anderson of Ipswich. They have been extremely useful to me. Perhaps I may also pick out some good discussions I have had with somebody who did not contribute to this debate but has worked hard in this area: the noble Baroness, Lady Bertin. She certainly improved my knowledge of and focus on this matter.

My noble friend Lady Newlove has highlighted to the Government why this new offence was necessary. She has engaged with me and my officials, to whom I should also pay tribute for working at significant speed, together with Professor David Ormerod—I think I can now say Professor David Ormerod CBE. This is not the first time, and will not be the last, that he has contributed significantly to the criminal law of this country. I will take a few moments to explain the architecture of the offence, because it is a new offence.

The key amendment in the group is Amendment 49, which provides for the substantive new offence. Strangulation and suffocation are always dangerous and, subject to the issue of consent, which was raised by a number of noble Lords and which I will come back to, they are wholly unacceptable. Strangulation can not only injure but be used by perpetrators to cause fear or exert control over their victim, as part of an abusive relationship.

Amendment 49, as I have stated, seeks to create a new offence of non-fatal strangulation or suffocation in England and Wales. It applies to behaviour which is currently criminal, so the aim is to improve the ability to prosecute such offences effectively—a point made by a number of noble Lords. The offence is designed to deal with assaults on any person where this affects their ability to breathe, whether by application of force to the neck—that is, strangulation—or by any other act; for example, by suffocation or constriction. The offence applies to all cases where strangulation or suffocation takes place, including those that occur in a domestic abuse situation. To pick up the point made by the noble Lord, Lord Marks of Henley-on-Thames, this offence is not restricted to domestic abuse situations but it is quite right that it is in this Bill, because it is often found in those situations.

Although such criminal behaviour can currently be captured under the offence of battery or, where more serious harm is caused, via the offence of causing actual bodily harm under the Offences against the Person Act 1861, the Government have been persuaded of the need to distinguish such crimes through a stand-alone offence. Serious offences against the person currently require actual bodily harm, which can make cases of strangulation or suffocation potentially difficult to prosecute. That is because the victim may have no, or limited, signs of injury. The problem can be compounded by the fact that the existing charge of battery, which carries a penalty of six months’ imprisonment, does not enable the seriousness of the offence as experienced by the victim—the terror caused during the assault or the often long-lasting psychological effect of it—to be suitably punished.

Unlike the summary-only offence of battery, the new offence of strangulation or suffocation will not be time-limited if a prosecution does not commence within six months of the offence. But perhaps of greater importance here, as my noble friend Lady Newlove identified, the new offence will expose the defendant to a more serious sentence than the current six months’ imprisonment for battery. That is because the nature of the harm required to qualify for the maximum five-year penalty has been reduced.

--- Later in debate ---

Moved by

[Lord Wolfson of Tredegar]

20: Clause 55, page 35, line 25, leave out “domestic abuse” and insert “accommodation-based”
Member’s explanatory statement
This amendment, and the Minister’s amendment at page 35, line 30, would change the current label of “domestic abuse support” in Clause 55 to “accommodation-based support” and are consequential on the Minister’s other amendments to Clauses 55 and 56 relating to “other local authority support”.

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[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, as the noble Baroness, Lady Finlay, said, the Minister has been generous with his time and has spoken with the group twice. The purpose of this amendment is well understood by the contributors to this short debate and by the Minister. The purpose is simple: it is to close a loophole, to make sure that all child contact centres reach the necessary standard, that there is some form of overview and accreditation and that there are consequences if that standard is not reached.

As the noble Baroness, Lady Burt, succinctly put it, we know that, as far as the courts are concerned, only accredited child contact centres should ever be used. However, what about other referrals to child contact centres? What about private referrals or referrals by local councils or other organisations such as Barnardo’s?

In the discussions that we have had with the noble Lord, Lord Wolfson, he has asked for proof that there is a problem. As the noble Baroness, Lady Burt, said, it is difficult to provide proof, because you are looking for organisations and child contact centres that do not necessarily advertise their services. If they run into problems, they can easily withdraw the advertising and re-emerge in another form, but with the same people running them. At the moment, there are no consequences for people playing fast and loose with the system, if I may put it like that. There needs to be some consistency across the range of services and regulated services that children use. This anomaly needs to be addressed and I can see no better place to do it than in this Bill with this amendment right now. I and my party will support the amendment if it is moved to a vote.

[Lord Wolfson of Tredegar (Con)]

My Lords, as I indicated in Committee, I fully recognise that the provision of child contact centres is extremely important to supporting families and enabling parents to have contact with their children, while at the same time providing a safe environment that protects children and adults from potential harm. As the noble Baroness, Lady Burt, put it, there is no agenda here, in the sense that we all have the same aim. The question is the best means of achieving it.

It is essential that all children experience the same high level of care and safeguarding where circumstances have necessitated their involvement with the family justice system and child contact centres or services. I thank noble Lords and the National Association of Child Contact Centres for their engagement with me and my officials since Committee. I have met, on a number of occasions, several noble Lords who have spoken in support of this amendment. I have found those discussions extremely helpful and I am grateful to them for the time that they gave to discussing the issue with me in more detail.

This amendment differs from the amendment debated in Committee, because it provides that the child contact centres should be accredited in accordance with national standards to be specified in regulations laid by the Secretary of State. The amendment in Committee did not specify who would set the accreditation standards. I continue to question whether the statutory accreditation proposed in this amendment is required or would provide a more effective form of regulation than that which currently exists through the NACCC accreditation framework and the statutory regulations governing local authorities.

I extend my sincere thanks to the NACCC for the useful overview of the current landscape of unaccredited child contact centres and services in England and Wales that it produced following Committee. That review was conducted at some pace and has been used to inform further discussions on this matter. While I accept and take on board the point made by the noble Baroness, Lady Burt, and the noble Lord, Lord Ponsonby of Shulbrede, that it is hard to identify evidence in this area, it is fair to say that the work that was done was at a somewhat high level.

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[Baroness McIntosh of Pickering (Con) [V]]

My Lords, may I address head on two points that the Minister has raised? First, the case has been made of how difficult it is to access the evidence and whether it is in the public interest to put this in the public domain. This is an extremely sensitive area and we have done our best to provide the evidence on the two occasions when my noble friend has requested it. Secondly, there is a legislative loophole. The Government undertook to come forward with regulations to establish the regulatory framework to set the standards in place and they have failed to do so. For what reason have the Government not brought forward these regulations and why are they not prepared to bring them forward at this time? I am at a loss to understand why that is the case.

[Lord Wolfson of Tredegar (Con)]

I will be brief. On the first point that my noble friend raised about evidence, I accept that people have done their best in the short time available. However, with respect, the points that I made about the high-level nature of that evidence stand. At the moment, we are not persuaded that there is a need to legislate in this area. On the second point about the loophole, I would be repeating what I said earlier. For the reasons that I set out, the position at the moment is that the use of unaccredited child services is rare. In circumstances where they are used by local authorities, that would be covered by their statutory duty under the Children Act. In those circumstances, we are not persuaded that the amendment is required or would even necessarily be effective.

[Baroness Finlay of Llandaff (CB) [V]]

I am most grateful to the Minister for his fulsome reply and for trying to get to grips with this issue, but I point out that it has been 14 years since the need for standards was originally raised. I did not mention some cases in my speech today because I have not been able to check them out in detail—we could not track down the details of the services—but I have names of services that I would be prepared to share in confidence with the Minister. I believe that there is evidence that this area is unregulated, that there is a gap and that children are at risk now, today. If we are dealing with domestic abuse, we must not leave children vulnerable. Therefore, I wish to test the opinion of the House.

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Moved by

[Lord Wolfson of Tredegar]

22: Clause 55, page 35, line 30, leave out first “domestic abuse” and insert “accommodation-based”
Member’s explanatory statement
See the explanatory statement to the Minister’s amendment at page 35, line 25.

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Moved by

[Lord Wolfson of Tredegar]

32: Clause 62, page 39, line 23, after “person” insert “—
(a) is, or is at risk of being, a victim of domestic abuse;(b) ”Member’s explanatory statement
This amendment ensures that rules of court made by virtue of subsection (1) of Clause 62 must make provision which enables the court to make a special measures direction in respect of a party or witness in civil proceedings who is a victim, or is at risk of becoming a victim, of domestic abuse.

[Lord Wolfson of Tredegar (Con)]

My Lords, I apologise for the short intermission while we changed places. The government amendments in this group relate to special measures and the ban on cross-examination in person as they operate in civil proceedings. The Government have taken careful note of the debate in Committee on Clauses 62 and 64, particularly the argument that there should be equivalent protections for the victims of domestic abuse in the civil courts as in family courts. I am personally grateful to the noble Lord, Lord Marks of Henley-on-Thames, for our discussions about these issues. As I explained in Committee, while we want to ensure that there is parity between each of the jurisdictions, we also need to build in allowances for the differences. That is why the provisions in respect of cross-examination and special measures in civil proceedings differ from those in family proceedings.

I shall speak first to Amendment 32 in respect of Clause 62. It is worth noting that the original provision in the Bill was based on recommendations made by the Civil Justice Council in its report published last year entitled Vulnerable Witnesses and Parties within Civil Proceedings. However, having reflected on the representations we have received and the cogent arguments put forward in Committee by the noble Lord, Lord Marks, Amendment 32 would extend eligibility for special measures to those at risk of domestic abuse in addition to the existing provisions which provide eligibility for special measures for the victims of specified offences. We see the force of the argument to include this measure so that there will be an equivalent level of protection for domestic abuse victims across the jurisdictions. The Civil Procedure Rules will lay out how this is to work in practice, but the instruction in the Bill is a clear indication that those victims who have not reported their perpetrator to the police will have an opportunity to let the court know where they are at risk of domestic abuse.

As the existing clause provides, judges will still need to consider whether the quality of a person’s evidence or the person’s participation in proceedings is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more special measures directions. However, we believe that including provision for those at risk of domestic abuse will mean that these victims will be covered and given the ability to avail themselves of special measures.

I shall say a further word on that, which I mentioned in Committee as well. By their nature, civil cases have the potential to cover a much broader range of circumstances where there is no prior connection between the parties; for example, where a victim is suing an alleged perpetrator of sexual abuse, an action against an employer where abuse is alleged, or in a boundary dispute. This amendment is therefore an appropriate step. The breadth of cases in the civil courts means that it may not be appropriate in all cases to grant special measures, although our amendment makes it likely that they will be granted where there is a genuine need.

I turn now to Amendments 33 to 40 to Clause 64. These introduce an automatic ban on cross-examination in person by a litigant in person if the party to proceedings has been convicted or cautioned in relation to a specified offence against a party to the proceedings or where there is a protective injunction between the parties. The witness may also introduce additional evidence to prove that they are a victim of domestic abuse, and this too can give rise to an automatic ban. The evidence would be based on legal aid evidentiary standards and may include a letter from a GP or an employer. This is provided for in family courts through Clause 63. These amendments would therefore move the position in civil courts substantially closer to the provision in family courts on a ban on cross-examination. However, as with the point I made in regard to Clause 62, we have to be mindful of the differences between the two jurisdictions.

The clause, in so far as it relates to banning the cross-examination of vulnerable parties or witnesses, again stems from the report by the Civil Justice Council. The council recommended that the prohibition of cross-examination by a self-represented party should be extended to cover civil proceedings, thereby ensuring some parity with the criminal and family jurisdictions. The council did caution, however, that the ban or prohibition should not be automatic and absolute, bearing in mind the broad range of cases that come before the civil courts.

As I have said previously in our debates on the Bill, we have concerns in relation to the civil jurisdiction that there should be an automatic ban on cross-examination where the position is only that someone is charged with an offence against an individual; that is, where the facts of the case have yet to be proven. In the circumstances where someone is charged with an offence, we believe that it should be left to the discretion of the court to determine whether a ban is appropriate on the facts of a particular case. That is because, as I have said, civil and family jurisdictions are different in type of case they deal with, the civil jurisdiction having a much wider range.

I believe that these amendments will give better protection to victims of domestic abuse and bring closer parity between the civil and family jurisdictions. I beg to move.

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

My Lords, I explained in Committee the reasons for my amendments, which were directed at ensuring that special measures and the prohibition of direct cross-examination should be applied in civil cases on the same or a very similar basis as they are to be in family cases. Our debates highlighted the difficulties, fear and trauma for parties and witnesses in giving evidence and taking part in proceedings where they were victims or at risk of being victims of domestic abuse at the hands of other parties or witnesses. We spoke of the effect of reliving the trauma of abuse in subsequent court proceedings and the fear of the consequences of giving or challenging evidence given by or in the presence of perpetrators.

I argued that in many civil proceedings the risks and effects were the same. I mentioned disputes over property and goods, landlord and tenant disputes, employment disputes, inheritance disputes and business disputes—particularly when partners break up and the separation of their joint business interests gives rise to litigation. It is a truism for litigation lawyers that the disputes giving rise to the most bitterness and unpleasantness are precisely those where the litigants have a close personal connection. However, of course I take the Minister’s point that the range of disputes in civil cases is very much broader than it is in family cases.

The Government have listened to those concerns. I am particularly grateful to the Minister for the time that he and officials in his department made available to consider these issues and for the very useful discussions we had, which have led us to the position that special measures are now to be extended to persons who are or who are at risk of being a victim of domestic abuse, where the original unamended clause required that the person had to be the victim of a specified offence for which the perpetrator would have had to have been convicted, cautioned or charged.

I am delighted that the Government have agreed, no doubt because so many cases of domestic abuse never reach that stage—largely because so much abuse goes unreported or is never the subject of criminal investigation—that victims and those at risk of being victims should be protected in civil proceedings, as they are to be in family proceedings.

Although the amendments on direct cross-examination are complex, as the Minister has explained, they effectively offer broadly equivalent protection to victims of abuse in civil proceedings to that offered in family proceedings, which was the aim of my amendments. In addition to the discretionary protection which the court is to be able to give as a result of new Section 85F of the Courts Act 2003, to be introduced by Clause 64, there is now to be a clear bar on direct cross-examination in cases where the victim is a victim of an offence or protected by an injunction or where there is evidence of domestic abuse against the victim by a party or witness. The nature of the evidence to be required to trigger the mandatory bar will be specified in regulations. It is to be hoped that no undue formality will be required, but I am confident that will be the case.

These amendments achieve what I set out to achieve: to protect witnesses and parties in civil proceedings who have been subject to domestic abuse. I am therefore very pleased to have been able to add my name to the amendments and say—it is not the first time it has been said today—that this process has shown the House at its best. It has been a model of co-operation between some of us on the Opposition Benches and the Government of the day.

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I conclude by drawing on something completely different: the advent of remote working, which I am actively involved with in both criminal and, more importantly, family proceedings. We are developing different ways of remote working in real time. For example, in videoconferences, should a party be able to ask that their face not be available to be seen by all parties taking part in the case? These are difficult matters which we are dealing with day to day; at the moment there is no guidance as such, other than consulting with colleagues and senior judges. These are very live matters which may be on the horizon to be further regulated in future. However, for now, I am glad to accept these government amendments.

[Lord Wolfson of Tredegar (Con)]

My Lords, I hope the House will forgive me if I am brief, because I am conscious there is a lot of business still to get through. I thank the noble Lord, Lord Marks of Henley-on-Thames—my co-sponsor of these amendments—for his kind words and engagement. As he said, we have reached the position where there are broadly equivalent provisions in place across the jurisdictions.

I am also grateful for the support of the noble Lord, Lord Ponsonby of Shulbrede. The point he raised about remote working and the courts having to work in real time in dealing with the pandemic and its effects is very important. To say any more at this stage would take me both outside the confines of this Bill and well off my brief. However, I have no doubt we will discuss it in this and other contexts in future.

Amendment 32 agreed.

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Moved by

[Lord Wolfson of Tredegar]

33: Clause 64, page 47, line 21, at end insert—
“85EA Prohibition of cross-examination in person: victims of offences(1) In civil proceedings, no party to the proceedings who has been convicted of, or given a caution for, a specified offence may cross-examine in person a witness who is the victim of that offence.(2) In civil proceedings, no party to the proceedings who is the victim of a specified offence may cross-examine in person a witness who has been convicted of, or given a caution for, that offence.(3) Subsections (1) and (2) do not apply to a conviction or caution that is spent for the purposes of the Rehabilitation of Offenders Act 1974, unless evidence in relation to the conviction or caution is admissible in, or may be required in, the proceedings by virtue of section 7(2), (3) or (4) of that Act.(4) Cross-examination in breach of subsection (1) or (2) does not affect the validity of a decision of the court in the proceedings if the court was not aware of the conviction or caution when the cross-examination took place.(5) In this section—“caution” means—(a) in the case of England and Wales—(i) a conditional caution given under section 22 of the Criminal Justice Act 2003,(ii) a youth conditional caution given under section 66A of the Crime and Disorder Act 1998, or (iii) any other caution given to a person in England and Wales in respect of an offence which, at the time the caution is given, the person has admitted;(b) in the case of Scotland, anything corresponding to a caution falling within paragraph (a) (however described) which is given to a person in respect of an offence under the law of Scotland;(c) in the case of Northern Ireland—(i) a conditional caution given under section 71 of the Justice Act (Northern Ireland) 2011, or(ii) any other caution given to a person in Northern Ireland in respect of an offence which, at the time the caution is given, the person has admitted;“conviction” means—(a) a conviction by or before a court in England and Wales, Scotland or Northern Ireland;(b) a conviction in service disciplinary proceedings (in England and Wales, Scotland, Northern Ireland, or elsewhere), including—(i) in the case of proceedings in respect of a service offence, anything that under section 376(1) and (2) of the Armed Forces Act 2006 (which relates to summary hearings and the Summary Appeal Court) is to be treated as a conviction for the purposes of that Act, and(ii) in the case of any other service disciplinary proceedings, a finding of guilt in those proceedings;(c) a finding in any criminal proceedings (including a finding linked with a finding of insanity) that the person concerned has committed an offence or done the act or made the omission charged;and “convicted” is to be read accordingly;“service disciplinary proceedings” means—(a) any proceedings (whether or not before a court) in respect of a service offence (except proceedings before a civilian court within the meaning of the Armed Forces Act 2006);(b) any proceedings under the Army Act 1955, the Air Force Act 1955, or the Naval Discipline Act 1957 (whether before a court-martial or before any other court or person authorised under any of those Acts to award a punishment in respect of an offence);(c) any proceedings before a Standing Civilian Court established under the Armed Forces Act 1976;“service offence” means—(a) a service offence within the meaning of the Armed Forces Act 2006, or(b) an SDA offence within the meaning of the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059);“specified offence” means an offence which is specified, or of a description specified, in regulations made by the Lord Chancellor.(6) The following provisions (which deem a conviction of a person discharged not to be a conviction) do not apply for the purposes of this section to a conviction of a person for an offence in respect of which an order has been made discharging the person absolutely or conditionally—(a) section 14 of the Powers of Criminal Courts (Sentencing) Act 2000;(b) section 82 of the Sentencing Code;(c) section 187 of the Armed Forces Act 2006 or any corresponding earlier enactment.(7) For the purposes of this section “offence” includes an offence under a law that is no longer in force.85EB Prohibition of cross-examination in person: persons protected by injunctions etc (1) In civil proceedings, no party to the proceedings against whom an on-notice protective injunction is in force may cross-examine in person a witness who is protected by the injunction.(2) In civil proceedings, no party to the proceedings who is protected by an on-notice protective injunction may cross-examine in person a witness against whom the injunction is in force.(3) Cross-examination in breach of subsection (1) or (2) does not affect the validity of a decision of the court in the proceedings if the court was not aware of the protective injunction when the cross-examination took place.(4) In this section “protective injunction” means an order, injunction or interdict specified, or of a description specified, in regulations made by the Lord Chancellor.(5) For the purposes of this section, a protective injunction is an “on-notice” protective injunction if—(a) the court is satisfied that there has been a hearing at which the person against whom the protective injunction is in force asked, or could have asked, for the injunction to be set aside or varied, or(b) the protective injunction was made at a hearing of which the court is satisfied that both the person who applied for it and the person against whom it is in force had notice.85EC Prohibition of cross-examination in person: evidence of domestic abuse(1) In civil proceedings, where specified evidence is adduced that a person who is a witness has been the victim of domestic abuse carried out by a party to the proceedings, that party to the proceedings may not cross-examine the witness in person.(2) In civil proceedings, where specified evidence is adduced that a person who is a party to the proceedings has been the victim of domestic abuse carried out by a witness, that party may not cross-examine the witness in person.(3) In this section—“domestic abuse” has the meaning given by 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.(4) Regulations under subsection (3) may provide that any evidence which satisfies the court that domestic abuse, or domestic abuse of a specified description, has occurred is specified evidence for the purposes of this section.”Member’s explanatory statement
This amendment provides for an automatic prohibition in civil proceedings on the cross-examination of witnesses in person in certain cases, similar to the provisions in Clause 63. For example, it prohibits a party who has been convicted of a specified offence from cross-examining in person a witness who is the victim of that offence. “Specified” here means specified in regulations made by the Lord Chancellor.

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Moved by

[Lord Wolfson of Tredegar]

41: After Clause 64, insert the following new Clause—
“Orders under section 91(14) of the Children Act 1989Orders under section 91(14) of the Children Act 1989
(1) The Children Act 1989 is amended as follows.(2) In section 91 (effect and duration of orders etc.), at the end of subsection (14) insert—“For further provision about orders under this subsection, see section 91A (section 91(14) orders: further provision).”(3) After section 91 insert—“91A Section 91(14) orders: further provision(1) This section makes further provision about orders under section 91(14) (referred to in this section as “section 91(14) orders”).(2) The circumstances in which the court may make a section 91(14) order include, among others, where the court is satisfied that the making of an application for an order under this Act of a specified kind by any person who is to be named in the section 91(14) order would put—(a) the child concerned, or(b) another individual (“the relevant individual”),at risk of harm.(3) In the case of a child or other individual who has reached the age of eighteen, the reference in subsection (2) to “harm” is to be read as a reference to ill-treatment or the impairment of physical or mental health.(4) Where a person who is named in a section 91(14) order applies for leave to make an application of a specified kind, the court must, in determining whether to grant leave, consider whether there has been a material change of circumstances since the order was made.(5) A section 91(14) order may be made by the court—(a) on an application made—(i) by the relevant individual;(ii) by or on behalf of the child concerned;(iii) by any other person who is a party to the application being disposed of by the court;(b) of its own motion.(6) In this section, “the child concerned” means the child referred to in section 91(14).””Member’s explanatory statement
This amendment inserts a new section 91A into the Children Act 1989 which makes further provision about the circumstances in which the court may make an order under section 91(14) of that Act (also known as a barring order), including where the court is satisfied that the making of a further application for an order under that Act, by any person to be named in the order, would put the child concerned, or another individual, at risk of harm.

[Lord Wolfson of Tredegar (Con)]

My Lords, Amendments 41 and 104 relate to Section 91(14) of the Children Act 1989. Last year we committed to exploring whether an amendment to the Bill was needed to clarify that Section. As noble Lords will be aware, it deals with barring orders, as they are often called, which allow courts to bar individuals from making further applications without permission of the court. Importantly, therefore, the order does not prevent access to the court; it prevents making an application without first obtaining the permission of the court to do so.

In Committee, the noble Lord, Lord Rosser, and my noble friend Lady Newlove asked for an update on the progress of the work. On responding to an amendment on barring orders put forward by the noble Lord, Lord Ponsonby of Shulbrede, I said that I would consider the issue of Section 91(14) carefully ahead of this next stage. I can assure noble Lords that I have done precisely that.

The sad fact is that perpetrators sometimes use the family court as a way to continue their abuse, often bringing their victims back to court repeatedly, which can in itself be a traumatising process. It is an abuse of the victims and also, therefore, an inappropriate use of the court process.

As it is currently formulated, Section 91(14) of the Children Act 1989 does not include any detail as to the circumstances in which such barring orders should be used. Courts have therefore elaborated the principles for when such barring orders may, and should, be made. Last year we heard compelling evidence from the expert panel in its report Assessing Risk of Harm to Children and Parents in Private Law Children Cases that, while they can be an effective measure, Section 91(14) barring orders are not being used sufficiently to prevent perpetrators continuing their abuse through the use of court applications under the Children Act 1989.

Before I go further, I want to pay respectful tribute to the noble and learned Baroness, Lady Butler-Sloss, who delivered the seminal re P judgment in this area of law back in 1999. For over two decades the guidelines included in that leading judgment have been regarded as the main reference point for judges when they are making the often difficult decision on the use of Section 91(14). It is fair to acknowledge that it is clear from those guidelines that specific cases and types of harm, including harm from domestic abuse, are not excluded from consideration for a barring order. None the less, now is the right time for us to act on the evidence presented by the harm panel about how Section 91(14) is being understood and applied, particularly in domestic abuse circumstances.

As is evident from the many debates we have had on the Bill, we now know far more about the prevalence of domestic abuse and the different forms that it can take than we did in 1999. It is therefore right that as the Bill approaches the end of its parliamentary journey, we use the opportunity to clarify the ambit and application of Section 91(14) to ensure that we are providing greater protection to victims, survivors and their children.

The Government are clear that barring orders are available to protect parents and children where further proceedings would risk causing them harm, and particularly where proceedings could be a form of continuing domestic abuse. To that end, Amendment 41 introduces a new provision into the Children Act 1989: new Section 91A. The new section clarifies that the circumstances in which a court may make a barring order include where the court is satisfied that a further application made by the named person would put the child or another individual—for example, the parent victim—at risk of harm. It is a non-exhaustive example; the discretion is preserved, but an additional statutory indication is provided. As I have mentioned, this amendment responds to recommendations made by the harm panel.

The aim of Amendment 41 is therefore to make it clearer to courts and practitioners that Section 91(14) barring orders are indeed available where a further application would pose a risk of harm to a child or a parent victim, and in particular where that application could constitute further domestic abuse. In that context, I should highlight to noble Lords that while this amendment does not expressly mention domestic abuse, it refers to the concept of “harm” that is already found in the Children Act 1989. This is because the definition in Section 31(9) of the Children Act is already very broad. It already includes coercive control and other forms of domestic abuse, along with many other forms of harm.

We touched on that point in the government response to the Joint Committee’s recommendation to amend the definition of harm. As we said there, we believe that singling out a specific form of harm in any part of the 1989 Act could have unintended negative consequences and risk appearing to give greater weight to one form of harm than another. We do not want to create a hierarchy of harm. We have therefore opted for the wider concept of harm, consistent with the approach in the Children Act.

We have also responded to the harm panel’s report in a further way. The new Section 91A makes it clear that in determining whether to grant permission to make an application to a person who is subject to a barring order under Section 91(14), the court must consider whether there has been a material change of circumstances since the barring order was made. Our intention is to require that courts consider carefully whether the circumstances that gave rise to the barring order have materially changed, such that permission to apply should be granted. The amendment does not draw a red line such that permission can be granted only if there has been a material change of circumstances, but we believe that the inclusion of this provision, which requires the court to consider this question, will offer further protection to domestic abuse victims.

The amendment also makes it clear that courts can make these orders on their own initiative—of their own motion, as it used to be said—for example, without an application being made by the victim for an order to be made. This, too, is a response to the harm panel’s recommendations. We want to put beyond doubt that there need not be an application for a barring order in order for the court to consider making one. Of course, the court will still need to give due consideration to the making of such an order, but the amendment clarifies that the court can make an order on its own initiative.

The Government are therefore confident that the amendment will mean that barring orders are used more often by courts to protect victims of domestic abuse where further applications put them at risk of harm. It will also make sure that permission to apply will be granted only where the court has considered whether there has been a material change of circumstances since the order was made, and also clarify that courts can make these orders on their own initiative. For those reasons, I beg to move.

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

My Lords, we support this government amendment and the amendment of the Title of the Bill that goes with it. As the Minister has explained, Section 91 of the Children Act permits the court to make a barring order—that is, an order forbidding someone, usually an applicant who has failed to persuade a court to make an order in his or her favour, from making an application for an order of a particular kind; this is usually but not always a repeat application—with respect to a child, importantly, without the leave of the court.

An order under this section still permits a further application for an order to be made if the court decides to permit it, which the court may in its discretion decide to do. This amendment, as the Minister has explained, extends the discretion to make a barring order if a further application would put the child concerned, or another individual, at risk of harm. That is the real purpose and merit of this amendment: it is for the protection from repeated litigation of those who might be victims of domestic abuse, when that repeated litigation often amounts to a particularly unpleasant form of harassment by legal proceedings.

The jurisdiction is similar to the court’s jurisdiction to make civil restraint orders and civil proceedings orders against vexatious and unmeritorious repeat litigants in civil cases. Under this government amendment, a person subject to a barring order may of course seek permission to apply further to the court. That application for permission will be considered, but the court considering whether permission should be given to make a fresh application must consider whether there has been a change of circumstances since the making of the original order. That, I suggest, seems entirely sensible. The amendment therefore strikes a careful and judicious balance between protecting potential applicants and providing a safeguard against people being harassed by unmeritorious repeat litigation.

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One case that I dealt with comes to mind. It had come to court 24 times in six years. The child was six years old, which means that every three months that child’s issues had come to court, as a child arrangements order. There were no allegations of domestic abuse. It was a youngish couple who were using the court system to resolve matters that seemed trivial. At what we hoped would be the final time we were dealing with this case, we came up with six pages of guidance for the child arrangements, with a lot of detail. At the recommendation of the legal adviser, we put in place a barring order to get those parents to sort out those problems themselves. As I say, there was no allegation of domestic abuse in that case, so it is slightly different from that which the noble Lord has put forward today. Nevertheless, it was certainly appropriate for a barring order. I support the amendment as moved by the Government.

[Lord Wolfson of Tredegar (Con)]

My Lords, again, I hope that the House and the noble Lords, Lord Marks of Henley-on-Thames and Lord Ponsonby of Shulbrede, will forgive me for being brief. I am conscious of the amount of the work that we have to get through. I am grateful for their comments and support for the purpose and effect of these amendments. As the noble Lord, Lord Marks, put it, we are striking a careful and judicious balance here between access to courts and preventing the court process being used as a vehicle for abuse. As we were reminded by the noble Lord, Lord Ponsonby of Shulbrede, it is not only in cases of domestic abuse that Section 91(14) is available, although that is the purpose of the amendments before the House.

Again, with apologies for being brief, because there appears to be broad agreement, I beg to move Amendment 41.

Amendment 41 agreed.

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[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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[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, the noble Baroness, Lady Bertin, powerfully moved this amendment and went into the detail of the problems that arise when refuge addresses are revealed. I fail to understand why judges, in her words, are turning a blind eye to the requirement to keep the secrecy of a refuge; I fail to imagine why that might be the case. Nevertheless, either mistakes happen or some judges—very few—have an alternative view. What I understand from the noble Baroness, Lady Bertin, is that she wants the Minister to put on record that guidance will be updated and to make it absolutely clear that this should not happen again. I do not know whether she is going to move her amendment or what will happen, but I would have thought that, at the very least, the Minister should be able to do that and say that guidance will be updated.

The noble Baronesses, Lady Hamwee and Lady Uddin, both have experience of working in refuges and they know the importance of keeping these addresses secret. I hope we will hear from the Minister something that sufficiently reassures his noble friend Lady Bertin that this issue can be properly addressed once and for all.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful to my noble friend Lady Bertin for her continued engagement on the issue of the confidentiality of refuge addresses. I take this opportunity to thank refuge providers and others in the sector who took time out of their very busy diaries to meet me on this issue: we had a very useful discussion.

As with many issues with the Bill, it seems to me that we all agree on the issues of principle. Refuges are places of safety. They play a vital role in effectively responding to domestic abuse, and in supporting victims and their children. Therefore, I am in complete agreement with the principle underlying my noble friend’s amendment, that those in refuges must be protected. As such, it is right that the Government and those involved in family proceedings carefully consider both whether existing measures offer enough protection and whether there are further steps that could be taken better to protect domestic abuse victims living in refuge accommodation.

In Committee, I outlined that those engaged in family proceedings are not required to disclose their address, or that of their children, unless specifically directed to do so by the court. Where such a disclosure direction is made, addresses are disclosed to the court only, and it is for the court to determine whether information it holds should be disclosed further. Where there are known allegations of domestic abuse, the court should hold this information as confidential. I reassure the noble Baroness, Lady Hamwee, that the formulation I used in Committee was certainly intended to indicate agreement.

Turning to the service of orders at refuge addresses, I again thank those from the refuge sector with whom I discussed this issue and their experience of it. They gave some valuable evidence, and we heard some more this evening from the noble Baroness, Lady Uddin. As I indicated in Committee, existing measures, particularly Part 6 of the Family Procedure Rules, enable the court to direct bespoke service arrangements, and orders can be served at alternative addresses, such as the refuge office address. This approach should be taken wherever possible.

I noted the way that the noble Baroness, Lady Hamwee, put it: service on a refuge should be avoided. However, as I said on the last group, the real question is the welfare of the child, which is of paramount consideration in family proceedings. I remain of the view that there can be limited circumstances where the court may need to serve an order on a party at the refuge they are staying in because not doing so would pose risks to the safety of children involved in family proceedings.

One can envisage such cases, and I would not wish to limit the court’s ability to act quickly in those circumstances to safeguard a child, which might occur were we to place a blanket or inflexible restriction on addresses at which an order can be served. However, I would expect family proceedings where an order needs to be served at a residential refuge address to be very few and far between. Although the question must ultimately be a matter for the judiciary and not for the Government Front Bench, one would expect that a refuge address would be used only when there is no other viable alternative in the circumstances.

I have indicated that existing measures enable protection for victims in refuges. However, I am persuaded that there is a legitimate question of whether those measures could be strengthened to ensure that victims are better protected, that addresses are not disclosed to perpetrators, and that service of orders at refuge addresses is directed only when absolutely necessary. While I am clear that primary legislation, and therefore this amendment, is not the appropriate response here, there are other routes to explore, as I have discussed with my noble friend since Committee.

This issue has been discussed between Ministers and the President of the Family Division in recent bilateral meetings. I assure my noble friend that the judiciary is taking seriously the concerns raised. I appreciate, in this context, that the noble Lord, Lord Ponsonby of Shulbrede, wanted some reassurance from the Government; I hope I am giving it to him. The Whips may not agree, but one of the benefits of making slightly slower progress on Monday than we intended is that I can now say that this matter was discussed at the meeting of the Family Procedure Rule Committee on Monday, which was a couple of days ago. The committee agreed to work on this issue and will be giving it detailed consideration in the coming weeks and months.

The Government are committed to protecting vulnerable victims of domestic abuse from further harm by their abuser. I am confident that this issue is being properly and carefully considered by members of the senior judiciary and by the Family Procedure Rule Committee. I have full sympathy with the motivation behind this amendment. I understand why my noble friend has maintained this, and why the noble Lord, Lord Marks, had considerable sympathy with it on the confidentiality point, although I note that he did not engage with the lack of any exception to the proposition set out in subsection (3) of the proposed new clause—that is, service on a refuge address.

I have used my response to set out what the Government are doing and the steps being taken. I hope that, having provided that assurance to my noble friend, she will now be content to withdraw her amendment.

[Baroness Bertin (Con) [V]]

I thank noble Lords for their valuable contributions to this short but very important debate. I am grateful to the noble Baroness, Lady Hamwee, for her support and for putting her name to the amendment, and likewise to the noble Baroness, Lady Uddin, for her kind words. It was powerful to hear that the noble Lord, Lord Marks, with all his deep knowledge of the law on these issues, and the noble Lord Ponsonby, agreed with the amendment. I felt it was important to hear them say that, and I thank them for it.

I am of course disappointed that my noble friend the Minister does not see that there is a need to put this into the Bill. I will never accept that there is justification for revealing the location of a refuge, but I have really appreciated the time that he has given to this issue. I can tell that he cares; he obviously has a concern about this issue and is committed to trying to deal with it. I absolutely accept that his response has gone further than that in Committee, so I will bank that progress and am grateful for it. We have indeed spoken at length about other routes to explore, and I will certainly be keeping in touch with him on this. I also want to pursue greater transparency.

I was very reassured—as my noble friend said, the timing has been fortunate—that the issue has already been discussed with the President of the Family Division on the back of the amendment. I do not doubt the judiciary’s willingness to tackle this and to take these accounts seriously. We will certainly keep a close eye on this and the progress that it makes. With that in mind, I will withdraw the amendment.

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[Baroness Wilcox of Newport (Lab) [V]]

My Lords, I must begin by applauding the frankness and honesty of the noble Lord, Lord Paddick, in his speech. It is truly humbling to hear him speak so bravely about his own former coercive partner.

In bringing this much-needed amendment to the House, the noble Baroness, Lady Morgan, has recognised the changes that have occurred in society since the widespread introduction of mobile phone technologies and social media coverage. It has changed irreversibly the way in which we communicate, and the inherent dangers of the misuse of that communication have become increasingly prevalent. I warmly support her tenacity in getting the amendment through the process. Clearly, her colleagues and former colleagues in Government have listened and acted on her arguments. It will make a difference.

As a former teacher of media studies, I had no idea, just five years ago, when I was last in the classroom, how exploitative or dangerous the medium would become. The threat to share intimate or sexual images and films is an increasingly common tool of coercive control, which can have enormous negative impacts on survivors of abuse. While the sharing of intimate and sexual images without consent is a crime, threats to share are not, leaving survivors of this form of abuse without the protection of the criminal law.

During my reading for this topic, I was powerfully moved by a key report, Shattering Lives and Myths, written by Professor Clare McGlynn and others at Durham Law School, which was launched in 2019 at the Supreme Court. It sets out the appalling consequences for victims of intimate images being posted on the internet without consent.

Threats to share these images play on fear and shame and can be particularly dangerous where there may be multiple perpetrators or where so-called honour-based abuse is a factor. The advent of new technologies enables perpetrators to make these threats even where such images do not exist. But there is no clear criminal sanction for this behaviour. Lack of support leaves victims and survivors isolated, often attempting to navigate alone an unfamiliar, complex and shifting terrain of legal provisions and online regulation. The Domestic Abuse Bill is the most appropriate vehicle to make this change. Victims and survivors would benefit almost immediately and it would help them prevent further abuse and get away from their perpetrator. This amendment will close that gap in the law.

[Lord Wolfson of Tredegar (Con)]

My Lords, my noble friend Lady Morgan is to be congratulated on bringing forward these amendments. As she has explained, the amendments seek to extend the scope of the offence at Section 33 of the Criminal Justice and Courts Act 2015, commonly known as the revenge porn offence, additionally to criminalise threats to disclose such images. Importantly, in any prosecution there is no need to prove the images exist at the time of the threat.

I reiterate that the Government consider that the revenge porn offence has worked well to date. There have been over 900 convictions for the offence since its commencement in April 2015. I am pleased to see that the creation of this offence has offered victims protection under the criminal law from the deeply distressing behaviour of sharing private intimate images.

I am very grateful for the discussions that I have had with the sponsors of the amendment in addition to my friend Lady Morgan: my noble friend Lady Hodgson of Abinger and the noble and learned Lord, Lord Judge. I have been happy to add my name on behalf of the Government to the amendment.

However, we cannot rest on our laurels. We must be alert, as the noble Lord, Lord Russell of Liverpool, said, to changes in technology, including the misuse of social media and the opportunities to abuse and distress others that such developments can bring. While we have a range of criminal offences that in many instances can deal with those who threaten to share intimate material with others, it is vital that we ensure that the criminal law remains fully equipped to deal with any new problems in this constantly developing area.

It was with this in mind that the Government asked the Law Commission to review the law in this area. That review has considered the existing offences relating to the non-consensual taking and sharing of intimate images to identify whether there are any gaps in the scope of protection already offered to victims. Noble Lords will be pleased to note that on 27 February the Law Commission published the consultation paper on the review. The consultation ends on 27 May and I encourage noble Lords to consider contributing to that public engagement, as my noble friend Lady Morgan of Cotes said.

The consultation paper puts forward a number of proposals for public discussion, including the need to address those who threaten to disclose intimate images. I look forward to the Law Commission’s full proposals in this area once its final recommendations are published later this year. I agree with the noble Lord, Lord Russell of Liverpool, that the law must keep pace with technological developments. I would not say that we are behind the curve but I think that it is fair to say that the curve itself is constantly moving. While it would be wrong of me to pre-empt the consultation and the Law Commission’s eventual findings, I think the fact that the commission has acknowledged that threats to disclose intimate images should be further considered adds strength to the calls to extend the revenge porn offence, as provided for in Amendment 48.

We have listened to the passionate calls for change from victims. They have bravely shared their distressing, and sometimes life-changing, experiences of suffering at the hands of those who would manipulate and torment them with threats to share their most personal and intimate images. That point was made during this short debate by the noble Baronesses, Lady Crawley and Lady Uddin, and in particularly moving terms by the noble Lord, Lord Paddick. Since I have just mentioned the noble Baroness, Lady Uddin, I remind her that sex and relationship education is part of the national curriculum.

We have also taken note of the views of campaigners and fellow parliamentarians. I remember the strength of feeling in this House in Committee, when my noble friend and others proposed a similar amendment to the one now before us. We have reflected on those calls and that debate and we are happy to support these amendments, which will extend the parameters of the Section 33 offence to capture the threat of disclosure.

As was noted by the noble and learned Lord, Lord Judge, and the noble and learned Baroness, Lady Butler-Sloss, Amendment 48 stays as close as possible to the provisions and drafting of the existing Section 33 offence, rather than making any broader changes to the law in this area. I suggest that that is the right approach given the Law Commission’s ongoing work. I assure the noble and learned Lord and the noble and learned Baroness that the Law Commission is specifically considering the intent issue as part of its work. I am grateful that the amendment also has the support of the noble Baronesses, Lady Jones of Moulsecoomb and Lady Wilcox of Newport.

I should say something in response to the speech made by the noble Baroness, Lady Fox of Buckley. This is nothing to do with criminalising speech and we are not dealing with just domestic abuse here. This is a broad offence that applies throughout criminal law; it does not apply just in the context of domestic abuse. While I agree that other criminal law offences, such as blackmail and harassment, can be applicable in this area—a point I made in Committee—the Government have been persuaded that it is right and appropriate to have this specific offence in this area of the law.

For those reasons, I believe that this reform will create a clear and consistent enforcement regime for both threats and actual disclosures, thereby providing greater protection to those who may have had to endure such intrusive and distressing behaviour. It has been a pleasure to be able to add my name to these amendments, and I join my noble friend in commending them to the House.

[Baroness Morgan of Cotes (Con) [V]]

My Lords, I thank all noble Lords who spoke in the debate on these amendments. As we heard the noble Lord, Lord Russell, put so eloquently, victims are suffering. I am pleased that the Government have decided that they do not have to wait until the conclusion of the Law Commission process.

Like other noble Lords, I pay particular tribute to the noble Lord, Lord Paddick, for being so brave and clear about his own personal experiences of these issues, which will be outlawed by my amendment. I thank him for sharing his experiences with the House.

Like the Minister, I took careful note of what was said by the noble and learned Lord, Lord Judge, and the noble and learned Baroness, Lady Butler-Sloss. They pointed out that this is not the end of the matter, of course, and that the use of “intent” will be looked at during the course of the Law Commission consultation.

For those who remain in any doubt, I want to share just one of the stories that I heard about. It relates to Rachel, a lady who was physically abused by her partner. After her partner had been arrested and released by the police because of the physical abuse, he threatened to disclose the many images he held on his phone to Rachel’s family and friends unless she went back to the police to change her evidence about the level of physical abuse that she had suffered. She did so and he thought that he had gotten away with it until, sadly, the abuse continued to escalate; at that point, Rachel decided that she had to get out of the family home with her children. I am pleased to say that she is now in a much more positive and better place, but the fact that victims are changing their behaviour and evidence, allowing perpetrators access to their families and returning to them, shows, in addition to the mental suffering, the very real toll that the threat of showing these images has on their lives. It just shows the very real effect that these victims suffer.

I thank the Minister for adding his name to my amendment and I thank his officials in the Bill team, who worked so hard on drafting this amendment and the consequential ones. I am grateful to them and to him for allowing me to move this amendment, and I take great pleasure in moving Amendment 48.

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[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 50 is proposed by my noble friend Lady Kennedy of The Shaws, along with Amendments 51 and 66. These amendments were debated in Committee and when my noble friend tests the opinion of the House at the end of this debate, the Labour Benches will support her. Today and during Committee my noble friend, and other noble Lords who have spoken, have highlighted how domestic abuse can lead to death. We all know of the terrible figures about women who die at the hands of a partner or former partner.

My noble friend’s amendment draws attention to the tragic situation where some women—the victims of the abuse—find themselves in the dock when they have in the end killed their abuser, often after years of horrific abuse and in situations where they feared they were going to be killed. The Sally Challen case is an example of where coercive control had not been fully understood by the courts; further, pleading self-defence has not been working for women. My noble friend, who has many years of experience in the criminal justice system, has told the House of truly tragic situations where women have not been treated fairly, or where the horror of the situation that they and their children found themselves in has not been properly appreciated.

These amendments seek to correct this imbalance and would, in my opinion, put the law in the right place by protecting those victims who have had to defend themselves in situations where they have feared for their life. The law should provide them with the ability to mount a defence, along with an understanding by the court of the horrors of domestic abuse and the need, when your life is in danger from an abusive partner or ex-partner, to take actions which are not grossly disproportionate to defend oneself.

As my noble friend said, a situation often plays out where a woman is taken along a route where she has to plead guilty to manslaughter and is convicted. On release from prison, such women have problems for the rest of their lives, for example with employment; they may also find that they have lost their home, or their children may be taken into care.

My noble friend also carefully explained the intent behind Amendment 51; the noble Lord, Lord Randall of Uxbridge, drew attention to his support for it. It mirrors the coercive control provisions of the Modern Slavery Act.

The noble Lord, Lord Paddick, asked a powerful question: why is it that victims of domestic abuse are meant to retreat while someone under attack from intruders in their home has greater protection? That cannot be right.

This has been a very good debate and I look forward to the Minister’s response. As I said, we on these Benches will certainly support the noble Baroness when she divides the House.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am extremely grateful to the noble Baroness, Lady Kennedy of The Shaws, for providing a full and detailed explanation of the reasons she believes that these amendments should be included in this Bill. In addition to the noble Lords who have spoken today, I am aware of the support that these proposals received last Thursday evening at the parliamentary event hosted by the noble Baroness and Jess Phillips MP on this subject. So that noble Lords do not think that only Kennedys can support other Kennedys, I join the noble Lord, Lord Kennedy of Southwark, in acknowledging and paying tribute to the noble Baroness’s work in, and experience of, this area.

The noble Baroness has put two amendments before the House; they are conceptually distinct, so I will address them in turn. Amendment 50 deals with the defence of the reasonable use of force by victims of domestic abuse who, in self-defence, react to violence from an abusive partner. Amendment 51 would create a new statutory defence for victims of domestic abuse who commit a criminal offence. The third amendment, Amendment 66, is intimately linked to and logically consequent on Amendment 51.

I turn first to the reasonable use of force and Amendment 50. Although the Government are wholly sympathetic to the plight of victims of domestic abuse, we are unpersuaded that there is a gap in the law here that needs to be filled. Nor do we feel that the circumstances of a victim of domestic abuse, who has often experienced that abuse over a prolonged period, are necessarily comparable to that of a householder who suddenly finds an intruder in their home and acts instinctively.

Let me expand on that point. Section 76 of the Criminal Justice and Immigration Act 2008 covers a specific circumstance. Its focus is on those occasions where an intruder, who is unlikely to be known to the householder, puts the householder in a position where they react instinctively as a result of intense stress. By comparison, in domestic abuse cases, the response may not be a sudden instinctual one but may follow years of physical and/or emotional abuse.

Furthermore—and this is an important point—the current law on self-defence and loss of control allows that any previous and extended history of domestic abuse be taken into account. I respectfully disagree with the point made by the noble Baroness, Lady Jones of Moulsecoomb, that the law on self-defence is, to use her word, outdated. It is not. As a result, it does not seem necessary to extend Section 76 of the 2008 Act to a wider set of circumstances as proposed by this amendment, given the defences that already exist in law.

I note too that no mention has been given in this new clause to a defendant’s option to retreat from the abuse, and I make that point with due care. I acknowledge, and am well aware, that an abused woman or man may not have that option. However, although Section 76 of the 2008 Act makes clear that there is no duty to retreat, the option to retreat remains a factor, and, where that is established on the facts of the particular case, it is a matter that will always be taken into account.

Therefore, although I warmly reciprocate the kind words that the noble Lord, Lord Paddick, said about me, and while I respect and acknowledge his personal history and experience, about which he has spoken extremely movingly on a number of occasions, I know that he will not like what I am going to say. I stand by the points that I have just made about the comparison or lack thereof between the householder situation and the situation of a victim of domestic abuse. I think at one point he came close to an implied charge of misogyny. I respectfully say that that does not easily sit with my approach to many amendments to the Bill or indeed the way in which I have dealt with the Bill itself. The issue between us is one of principle.

I am aware too that the noble Baroness who proposed the amendments has stated that there are difficulties with establishing the common-law defence of self-defence in cases of reactive violence by a survivor of domestic abuse against their abusive partner or former partner. As I stated in Committee, the ethos of the Bill is to improve and provide better support for victims of domestic abuse and to recognise and indeed highlight the wide-ranging impacts and implications of such behaviour. In raising the profile of domestic abuse, the Government hope to strengthen not only statutory agency support for victims and survivors but to improve the effectiveness of the justice system in better protecting those who suffer such abuse while bringing perpetrators to justice.

To that extent, I share the aims of the right reverend Prelate the Bishop of Gloucester. I assure her that this is not a question of finance; it is a question of the proper approach that the law should take in this area. That is because it is important for the Government to ensure that there is fair and equal access to justice for all. The law has to balance both the recognition of the abuse that has been suffered and the impact that it has had on a victim against the need to ensure that people, wherever possible, do not revert to criminal behaviour. I was pleased to hear that the noble Baroness, Lady Hamwee, agreed with me, at least on the latter proposition. The Government believe that that balance is currently reflected in the law—a law that continues to evolve but nevertheless strikes the right balance between those factors.

In making that last point, I referred in Committee to the fact that courts can often be quicker, more nuanced and more flexible in developing the common law than can Parliament in introducing a statutory provision that can be too rigid and narrowly drawn and may become more problematic than useful. I expressed myself as a fan of the common law, and I confirm again this evening that my enthusiasm for it is undimmed. Of course I agree with the noble Baroness, Lady Hamwee, that sometimes Parliament can lead the way—but not here.

Before I conclude my remarks on this amendment, I shall reply to one other point made by the noble Baroness, Lady Jones. She said that the Government have moved on several parts of the Bill, so why not this one? The reason is that, for the reasons I have set out, there is a principled argument that we make and which we stand by. I suggest that that argument is rooted properly in the way that the law is now applied and in the distinction between the domestic abuse case and the householder case. Towards the end of her remarks, the noble Baroness asked me a couple of quickfire questions. I am not sure that I have picked them all up, so if, on reading the Official Report, I find that they are relevant to this amendment, I will respond to them.

Although the Government are sympathetic to the aim behind Amendment 50, we remain entirely unpersuaded that it is needed, given the current defences that exist in law and the increased help, support and advice that will be available to victims of domestic abuse throughout the rest of the Bill.

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Moved by

[Lord Wolfson of Tredegar]

53: Schedule 2, page 65, line 37, leave out from beginning to end of line 10 on page 66
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 66, line 21.

[Lord Wolfson of Tredegar (Con)]

My Lords, these amendments fulfil an undertaking I gave in Committee in response to amendments tabled by my noble friend Lady Bertin that sought to ensure that UK citizens who commit marital rape in countries where such behaviour is not criminal may none the less be prosecuted in the UK.

I said then that we would consider this matter ahead of Report and, bearing in mind that the extraterritorial jurisdiction provisions are UK-wide, that we would also consult the devolved Administrations to ensure a consistent approach across the UK. We have done both —we have considered and we have consulted. I am pleased to say that, with the agreement of Ministers in Scotland and Northern Ireland, government Amendments 53 to 55, 58 to 61 and 63 to 65 achieve what my noble friend intended, and will apply to relevant legislation throughout the UK. I shall remind the House briefly, given the hour, of the provisions.

Schedule 2 to the Bill contains amendments to various enactments to provide for extraterritorial jurisdiction over certain offences under the law of England and Wales, Scotland and Northern Ireland. This will ensure that, as required by the Istanbul convention, the UK will be able to prosecute these offences when they are committed outside the UK by one of our nationals or habitual residents. The scheme is this: part 1 of the schedule covers England and Wales, part 2 covers Scotland, and part 3 covers Northern Ireland.

In keeping with the normal principles of extraterritorial jurisdiction and the terms of the convention, there is a requirement that a prosecution for one of the relevant sexual offences—these include rape where the victim of the offence is aged 18 or over—may be brought in the UK only when the offending behaviour is also an offence in the country where it happens. This is known as dual criminality.

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[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, this group of amendments addresses marital rape, whereby rape could be committed by a UK citizen in a country that does not consider it a crime and, presently, no prosecution could be brought. The noble Baroness, Lady Bertin, brought the matter to the attention of the House in Committee and has been successful in persuading the Government of the merits of her case and the importance of closing this loophole.

I offer her my sincere congratulations on her success. Her actions will protect women and girls from the horrific crime of rape and ensure that no rapist or perpetrator of these vile crimes can evade justice through making use of this loophole in the law and hide behind the fact that marital rape is not a crime in a small number of countries. This is a good example of the House of Lords doing its job well. An important issue was raised, well argued and supported across the House; the Government considered it carefully and responded positively, bringing forward their own amendments to address the issue.

[Lord Wolfson of Tredegar (Con)]

My Lords, I hope the House will forgive me again if my reply is very brief, not because the issue is not important but because there is obvious agreement across the House. I again thank my noble friend Lady Bertin for bringing this matter to the Government’s attention and for the discussions we have had. I thank the noble Lord, Lord Paddick, for his kind words on this matter this evening, which I appreciate. I also thank the noble Lord, Lord Kennedy of Southwark; I am very pleased to have his and his Benches’ support on this matter. I will not say any more given the time, but I commend this amendment to the House.

Amendment 53 agreed.

Moved by

[Lord Wolfson of Tredegar]

54: Schedule 2, page 66, leave out lines 12 and 13
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 66, line 21.

Judicial Pensions (Fee-Paid Judges) (Amendment) Regulations 2021

Lord Wolfson of Tredegar Excerpts

Tuesday 23rd February 2021 Lords Chamber

Moved by

[Lord Wolfson of Tredegar]

That the draft Regulations laid before the House on 18 January be approved.

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

My Lords, this statutory instrument amends the Judicial Pensions (Fee-Paid Judges) Regulations 2017, which I will refer to as the FPJPS regulations, which established the fee-paid judicial pension scheme 2017, which I will refer to as the FPJPS. This statutory instrument broadly has three purposes: the first is to add eligible fee-paid judicial offices to the FPJPS regulations; the second is to make amendments consequential to adding these offices to the FPJPS regulations; and the third is to make various further amendments to those regulations.

Dealing with those in turn, the main purpose of this statutory instrument is to add further eligible judicial offices to the FPJPS regulations. To give the House an example, Part 2 of the statutory instrument adds the office of legal chair of the Competition Appeal Tribunal to the schedule of offices in the FPJPS. Until that is done, individuals holding these offices cannot be members of the FPJPS and cannot, therefore, accrue pension benefits under it, even though they would otherwise meet the eligibility criteria. Similarly, member pension contributions could not be deducted from their judicial fees. Currently, when the Ministry of Justice is notified that an individual in this situation retires, an interim payment in lieu of pension is made, but once these judicial offices are added to the FPJPS regulations the payments in lieu will become formalised pension payments.

The second element is the consequential amendments, contained in Part 3, which flow from the addition of these judicial offices to the pension scheme. These amendments ensure two things: first, that eligible service before this SI comes into force on 1 April 2021, and potentially as far back as 7 April 2000, can also count as pensionable service and pension contributions can be deducted in respect of it; and, secondly, these new members can complete certain actions in the scheme, such as the purchase of additional benefits, from their date of admission to the scheme.

Thirdly and finally, we are taking the opportunity of this SI to make some further necessary amendments to the FPJPS regulations. I will highlight three kinds of amendment. First, we explicitly set out the service limitation dates that apply for relevant judicial offices. This is the date from which reckonable service is taken into account for the accrual of pension benefits under the scheme. Service limitation dates represent the point in time when the appropriate salaried judicial officeholders had access to a pension under the Judicial Pensions and Retirement Act 1993 scheme, known as the JUPRA scheme. Following the 2013 judgment in a case called O’Brien v Ministry of Justice, we need to replicate that in the FPJPS. To give the House an example, service in the office of deputy adjudicator of Her Majesty’s Land Registry is eligible for an FPJPS pension, but only in relation to service in this office after 1 January 2009. Although these offices already fall under the entry in the FPJPS regulations of

“First-tier Tribunal Judge (where a legal qualification is a requirement of appointment)”

and the service limitation dates could be inferred, if one had the time and interest to do so, from various sources, such as the purpose of the existing regulations and litigation decisions, we consider it preferable for these dates to be clearly specified in these regulations, so that is what we have done.

Secondly, we have taken the opportunity to correct the service limitation dates, which are already listed for three judicial offices in these regulations, as they wrongly limit, by one day, the period of eligible service for these judicial officeholders. To give an example, the entry for

“Legal Chair Criminal Injuries Compensation Appeals Panel”

is currently limited to service in this office after 3 November 2008, whereas the correct date that the amendment records is 2 November 2008.

Thirdly, we have added the new names of two judicial offices already listed in the regulations. These are the Deputy Insolvency and Companies Court Judge, a position formerly known as the Deputy Bankruptcy Registrar; and the Deputy Master of the Senior Courts, formerly known as the Deputy Supreme Court Master.

Turning briefly to the consultations we have undertaken on these and related matters, I shall highlight three. In 2016, we issued a public consultation on the draft regulations establishing FPJPS and the responses were reflected in the final version of the regulations. The scheme commenced on 1 April 2017, with backdated effect to 7 April 2000. We have since undertaken further consultation exercises relating to the addition of eligible judicial offices to FPJPS. In the first of those two additional consultation exercises, in 2018 we consulted directly with judges of the First-tier Tribunal (Property Chamber) Agricultural Land and Drainage, as this office was not expressly mentioned in the 2016 consultation. We received four responses, which we considered carefully.

Secondly, from June to October last year, we consulted on adding these judicial offices to FPJPS as part of a wider consultation on amendments to the regulations on the inclusion of service in the scheme prior to April 2000. We received a number of responses, and the Government response to the consultation was published on 10 December last year. In addition, of course, we have kept the devolved Administrations informed of developments and have liaised specifically with officials from Wales and Northern Ireland regarding the offices whose jurisdictions are in those countries, reflecting their views accordingly.

I can reassure the House that this statutory instrument, which I accept is somewhat technical, is essentially a tidying-up exercise. We are not implementing any major changes through the statutory instrument, nor are we making any amendments to FPJPS with negative implications for judges. In fact, we are doing the opposite: we are enabling additional officeholders to become members of the fee-paid judicial pension scheme, something I know that both the judges concerned and my department are very keen to see happen. The key reason, therefore, for this statutory instrument is to add eligible judicial offices to the FPJPS regulations to enable those officeholders to become members of the scheme and to enable pension contributions to be deducted from their fees. I beg to move.

[The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)]

The noble and learned Lord, Lord Morris of Aberavon, will be followed by the noble Lord, Lord Bhatia.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I am grateful to all noble Lords who have contributed to this debate. I hear the words of the noble Lord, Lord Ponsonby, ringing in my ears. He said that he had enjoyed this debate more than he thought he would; the problem is that he did not tell us how much he thought he would enjoy it, so I do not know whether he set a very low bar. But I will take it, as I enjoyed the debate very much, that he—like me—had a moderate expectation which has been significantly exceeded.

I have been asked by a number of noble Lords to provide independent legal advice on their pension entitlement. I am respectfully going to avoid doing this, not only because I am now an unregistered barrister so cannot give any legal advice at all but because I am not entitled to either a judicial or indeed a ministerial pension. However, I will set out, I hope clearly, that the Government are determined to ensure that all those entitled to pensions as a result of the four decisions—O’Brien 1, O’Brien 2, McCloud and Miller—receive them. Therefore, to pick up on the point made by the noble and learned Lord, Lord Morris of Aberavon, we do not want anybody to fall between the cracks.

As to how many people we are talking about, that rather depends on whether we are talking about people affected by those decisions or the people affected by the SI. The number of people affected by the SI is very small—a handful, maybe 10 or 15. The number of people affected by the other decisions is some 5,700, and at the moment we are paying about 1,235 people interim payments to reflect moneys to which they are entitled. As of 31 January this year, we have agreed 2,573 service records out of that estimated total of 5,706 for the O’Brien 2 and Miller claimants, and obviously we will be progressing that so far as we can.

Noble Lords are respectfully right to point out that this is the result of a number of court decisions; I deliberately did not go through the material in my opening, not least because of time. But it is important that judges, like everybody else in our society, have access to the courts, and it is also important that we recognise that our justice system depends not only on full-time, salaried judges but on a whole raft of fee-paid judges in all sorts of courts and tribunals up and down the land, without whom the critical infrastructure of our justice system would simply not exist.

I have been asked to say something about the current consultation; I will do that with reference to the McCloud litigation, which the noble Lord, Lord Bhatia, specifically asked about. As the House will be aware, the gist of that decision by the Court of Appeal, if I may respectfully paraphrase it, was that less favourable treatment was being given to some younger judges as compared with more senior judges. We have looked at that decision as part of the future reform, in respect of which we want to give judges an option as to whether or not they join the reform scheme.

From 2022, the reform scheme will be the only scheme in which members can accrue benefits; all other judicial pension schemes would close to future accruals, but no benefit previously accrued will be lost. Therefore, for those currently on final salary schemes—JUPRA or FPJPS—those benefits will be linked to their salary when they retire or leave judicial office. I can inform and, I hope, please the noble Lords who asked me what the timescale is—in addition to the noble Lord, Lord Ponsonby, I think it was the noble Lords, Lord Thomas of Gresford and Lord Davies of Brixton. The timescale is imminent; we will be publishing the government response to the consultation later this week. Off the top of my head I think it will be Thursday, but it will certainly be this week. So we are not sitting on our hands; we are certainly getting on with it.

In the time remaining I will pick up a number of other points. I respectfully agree with the noble Lord, Lord Davies of Brixton, that we need to get judicial pensions right. That is important in order to attract people to become judges, to retain them as judges and to make sure that they have a proper pension scheme. The tax treatment is part of that and noble Lords will see how we have responded to it in the consultation later this week. There is no question but that this Government put a very high degree of importance on getting the judicial pension structure and system right in order to attract people into the scheme.

I hope that I have picked up all the questions I was asked. I think the only question outstanding, from the noble and learned Lord, Lord Morris of Aberavon, and, I think, from the noble Lord, Lord Thomas of Gresford, was about whether recorders are in the scheme. I have been informed, while on my feet, that recorders are already in the scheme—so I hope that that bit of personal good news will be welcome to those Members. I will check the Official Report to see whether there are any questions I have not responded to—but I hope not, and I therefore commend these regulations to the House.

Motion agreed.

Learning Disabilities: Child Trust Funds

Lord Wolfson of Tredegar Excerpts

Thursday 11th February 2021 Lords Chamber

[Lord Young of Cookham]

To ask Her Majesty’s Government what progress they have made towards enabling access to Child Trust Funds by those with a learning disability.

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

My Lords, the Government have committed to making the process of obtaining legal authority to access a child trust fund more straightforward. A working group comprising the Ministry of Justice, the Treasury, HMRC and the Department for Work and Pensions has met several times to consider what more can be done, and it has also met the Investing and Saving Alliance, the Financial Conduct Authority and the Money and Pensions Service. The Court of Protection Rules Committee is reviewing its application forms and considering issues raised by campaigners.

[Lord Young of Cookham (Con)]

I am grateful to my noble friend, who has only recently inherited this pressing problem. I hope that he can help the thousands of families who cannot access child trust funds without a lengthy and at times intimidating procedure. On 3 December, when I last raised this, my noble friend Lady Scott said that the new working group would

“report back to the Minister in early January.”—[Official Report, 3/12/20; col. 828.]

What progress has been made? Might he promote a simplified and streamlined court procedure to access what are normally fairly small sums of money?

[Lord Wolfson of Tredegar (Con)]

My noble friend is absolutely right that, because these funds are generally of relatively small amounts of money, it is all the more important that court procedures, which are designed to comply with the Mental Capacity Act 2005, are both accessible and proportionate. Rules and procedures are a matter for the courts, not Ministers, but I will do all I properly can to ensure that children and young adults with a learning disability can access what are, after all, their own funds.

[Lord Touhig (Lab) [V]]

My Lords, in December, some finance firms started to allow parents supporting a disabled youngster to access trust funds without a court order in exceptional circumstances. Some 30% of families benefit, but 70% are still required to go to court. Last week, in a meeting with the Investing and Saving Alliance, officials from the Minister’s own department refused to support this—why?

[Lord Wolfson of Tredegar (Con)]

My Lords, it is not for the Government to comment on the development of private sector proposals and the extent to which—and whether—they comply with the relevant legislation. We are working with all the financial trade bodies to ensure that parents and guardians of young people who do not have the required mental capacity to make the decision to access a child trust fund at age 18 are aware of both lasting powers of attorney and the important benefit of making an application to the Court of Protection before they reach 18 to avoid court fees.

[Lord Wigley (PC) [V]]

Does the Minister not accept that there is an urgency about this? Many families face huge administrative burdens and other pressures when their child reaches adulthood. Child trust funds can play an important part in helping with the transition, but accessing them should not become an additional burden, especially when relatively small sums of money are involved. Will he please commit to ensuring that families will be supported proactively in these circumstances —and do this with some urgency?

[Lord Wolfson of Tredegar (Con)]

My Lords, I can certainly commit to that: I have arranged meetings later this afternoon to that end, and I will take a personal involvement to ensure that all that can be done is done. I will also liaise with the President of the Family Division but I emphasise that, ultimately, court rules are a matter for the court, and there is a constitutional propriety that I have to maintain.

[Baroness Browning (Con) [V]]

I ask my noble friend about capacity. Under the Mental Capacity Act, this is not a generalised presumption; it is specific to the issue at hand. Who exactly determines whether the individual has capacity? If a professional assessment of capacity is needed, who exactly is expected to pay? It can cost several hundred pounds.

[Lord Wolfson of Tredegar (Con)]

My Lords, there are a number of ways in which the requisite capacity, or lack thereof, can be established and assessed by the court, and those issues probably take me outside the bounds of an answer here. I will write to the noble Baroness to give more detail.

[Lord Addington (LD)]

My Lords, last time this was discussed, I said that the Minister had pointed out an absurdity. He has still got his finger on it. Can he give the House an assurance that we will not only get a solution but will hear about when that is reached, and that banks and their internal bureaucracy are informed about this so it can be done quickly?

[Lord Wolfson of Tredegar (Con)]

My Lords, the present situation is absolutely unfortunate. One of the problems is that this does not seem to have been anticipated by the Government which put child trust funds into existence. We are doing all we can, and I will certainly report back to your Lordships’ House on the progress we make. As I have already said, I am personally committed to ensuring that this problem is solved.

[Baroness Altmann (Con) [V]]

My Lords, will my noble friend assure the House that any measures taken to help children with disabilities access their own money in their child trust funds will also read across to junior ISAs, where I believe similar problems can arise? The Government may have special responsibility here, after the 2005 Government offered parents extra payments to invest in a child trust fund if they were also claiming disability living allowance.

[Lord Wolfson of Tredegar (Con)]

My Lords, at the moment I do not see any conceptual distinction between child trust funds and junior ISAs. What we put in place to solve this problem ought, in principle, to be applicable to junior ISAs as well.

[Baroness Wheatcroft (CB) [V]]

My Lords, those who look after children with learning disabilities deserve our help and admiration. They do not need unnecessary obstacles being put in their way. Is there any evidence that those trying to access the funds being discussed have anything but the best of motives?

[Lord Wolfson of Tredegar (Con)]

The noble Baroness is certainly right. Virtually everybody does have the best of motives, but there have been cases where the protections afforded by the Mental Capacity Act 2005 have, unfortunately, been needed. One has to remember that, ultimately, one is dealing with the funds of somebody who lacks the capacity to deal with them themselves. That is why the Mental Capacity Act puts in protections which may well be needed.

[Lord Ponsonby of Shulbrede (Lab) [V]]

A professional actuary has been helping campaigners to identify the aggregate amount of money that disabled young people could lose from their child trust fund as a result of the current court process. The results estimate that, if one in four parents give up pursuing these funds because of the perceived difficulty in accessing the money, £107 million could be lost to those children over the next 10 years. This money is being locked away forever in individual accounts. What assurance can the Minister give that any new solution will be designed to make it as easy as possible for these families to access the benefits for young people?

[Lord Wolfson of Tredegar (Con)]

My Lords, I do not want anybody to give up accessing money which is rightfully theirs. There are a number of provisions in place for fees but, to sum this up, the Government’s intention is that no one who needs to apply to the Court of Protection solely to access a child trust fund will pay fees.

[Lord German (LD)]

Further to his answer to the noble Lord, Lord Touhig, will the Minister tell the House why it is that the scheme which the investment and savings body has put in place while waiting for a permanent solution, and has been operating—moving the system from cumbersome to semi-cumbersome, not a full solution—is not getting the blessing of the Ministry of Justice in order that it can make at least some progress in this matter?

[Lord Wolfson of Tredegar (Con)]

My Lords, the reason is that it is not for the Ministry of Justice to give its blessing to private sector schemes and to say whether they do or do not comply with the relevant legislation. That legislation is important: it is there to protect people. If the private sector wants to put in a scheme, that is a matter for the private sector. So far as my department is concerned, we need to make sure, so far as we can, that the court rules and procedures are appropriate, proportionate and accessible.

[Baroness Finlay of Llandaff (CB) [V]]

I declare an interest as chair of the National Mental Capacity Forum. As Covid lockdown difficulties for the Court of Protection have now led to delays of around 20 weeks for uncontested applications, can the Government confirm that forms marked “Urgent” are prioritised and digital options are being explored by the court, to improve access while retaining the important protections from the MCA against exploitation or misuse of funds?

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, the noble Baroness will be aware that two weeks of the waiting time is mandatory under the Act. For the rest of that period, if applications are marked as urgent then they are dealt with on an expedited basis. On the second point, court staff are putting in place new digital ways of working the procedure to try and speed things up.

[Lord Vaizey of Didcot (Con)]

I thank the Minister for being so brief that I could get in. I point to my entry in the register of Member’s interests relating to my work for the Investing and Savings Alliance. I was delighted to hear what the Minister said about there being no conceptual difference between a child trust fund and a junior ISA. Now that this issue has been raised, should the department now grasp simplifying legal procedures for a whole host of financial products? Can we not see, in the next year, the “Wolfson reforms” as his legacy?

[Lord Wolfson of Tredegar (Con)]

My Lords, I regret that my noble friend is already talking about my legacy when I have only been in this House about six weeks—in future, I will make longer answers. My noble friend raises an important point. I emphasise that the constitutional position is that court procedures and rules are a matter for the courts. So far as I am concerned, we need to make sure that the response of the justice system, over the whole gamut of civil justice, is proportionate to the sum in issue and the issues which are being argued about. To that extent, I agree with the point made by my noble friend.

[The Lord Speaker (Lord Fowler)]

My Lords, all supplementary questions have been asked—congratulations. We now come to the second Oral Question.