Oral Answers to Questions
Peter Kyle Excerpts(3 years, 9 months ago)
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Lucy Frazer
As usual, my hon. Friend the Chair of the Justice Committee makes a number of important points. He is right to identify that the people coming into custody, because there are fewer of them, have committed more serious crimes—often violent crimes—and are very complex to deal with. He is right to point out the importance of the transition between youth custody and adult custody, and that is something we are looking at very closely. The Youth Custody Service is currently looking at improving the transition in prison from youth to adult custody, and at the feasibility of introducing an integrated healthcare model for young adults based on the system that is currently operated in the youth custody estate.
Peter Kyle (Hove) (Lab)
Over 60,000 children were arrested last year in England and Wales but only 118 parenting orders were issued. That is less than 10% of the figure in 2009. How can a troubled young person turn around their life if the Government are not doing everything they can to help them?
Lucy Frazer
The hon. Member makes a very important point. I was pleased to discuss a number of issues that cross our portfolios yesterday. He makes an important point about looking at the whole system and at where a young person will return to—the parents, the family, the community and the friends that they will return to. If we manage to overcome their issues in custody, we need to ensure that they do not return to crime on coming out. Oasis, the company that is providing the secure schools that we are looking at very closely, wants to ensure that there are places for people to stay when they come and visit their children, but it also wants to work with them when they visit to ensure that there is that support on going out. The hon. Member makes a very important point about parenting orders, which we are looking at.
Draft Human Rights Act 1998 (Remedial) Order 2019
Peter Kyle Excerpts(3 years, 10 months ago)
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Peter Kyle (Hove) (Lab)
It is good to serve under your chairmanship once again, Sir Charles, and to see the Minister as well. Take this as you will, Sir Charles, but I seem to spend more time with the Minister than with my friends and family these days.
The Labour party supports the remedial order, which amends the Human Rights Act 1998. The case of Hammerton v. United Kingdom showed a situation none of us would have expected. Mr Hammerton’s rights were violated by a judicial act done in good faith, and there was no effective remedy for the wrong suffered as a result of that violation. It is only right and fair that when someone’s rights are violated, they can seek redress through the courts.
The right to an effective remedy is protected by article 13 of the European convention on human rights. Mr. Hammerton was committed to prison for contempt of court, despite having no legal representation. At a family court hearing, he was unrepresented, as his legal aid certificate was under review following receipt of a post-divorce financial award. The lack of inquiry into that, and other procedural errors, meant that the court breached article 6 of the European convention on human rights—the right to a fair trial.
Mr Hammerton went to prison for six and a half weeks, which would not have been the case if he had been represented. We should thank him for persevering with his case since his imprisonment in 2005. By taking it to the European Court of Human Rights, he has made us examine how we view our courts. Judges are only human, so, in very rare cases, their decisions will result in the need for remedy. It is only right that damages can be claimed in those extremely rare cases where no other remedy is possible.
Mr Hammerton could not receive damages, owing to the operation of section 9(3) of the Human Rights Act, which prevents damages as a result of a judicial act done in good faith. The rationale behind section 9(3) is to preserve the judicial immunity that promotes the judicial independence we all value so much.
In Mr Hammerton’s circumstances, the damage done to him by being imprisoned could not be rectified by an appeal or other routes, as he had already spent time in custody by the time the errors were realized. Damages were the only appropriate remedy for what he had gone through. The Human Rights Act in this case explicitly prevented the courts from awarding him the damages he sought and that he deserved.
It is a shame that the Government attempted to address this incompatibility with the draft Human Rights Act 1998 (Remedial) Order 2018. That draft order laid out extremely narrow circumstances where damages could be awarded. The circumstances were so specific that they only applied to Mr Hammerton’s case and other circumstances if they were identically replicated. The Joint Committee on Human Rights rightly rejected that draft order. As it pointed out, other situations could occur that could result in the need for damages.
It is important to stress that judges will not be personally liable for any award of damages as a result of this remedial order. The Labour party champions the independence of our judiciary and the immunity of the judiciary is key. However, as stated by the Joint Committee, depriving judges of the power to award damages against the state does not strengthen independence. The new remedial order, now redrafted, allows damages to be awarded to judicial acts done in all proceedings and in relation to all breaches of article 6 that have led to a person spending time in prison or being detained.
The Joint Committee on Human Rights concluded that the remedial order before us today adequately addresses the incompatibility between the European convention on human rights and section 9(3) of the Human Rights Act. We agree with the Joint Committee’s conclusion and therefore support the order. However, we also agree with the Joint Committee that circumstances might arise in the future where further incompatibility could be found beyond the scope of the order and hope that the Government will address that point, too.
I pause to note the correspondence that many of us have had in recent days from Professor Richard Ekins of Oxford University. He was concerned that, on assessing the secondary legislation before us, only fresh primary legislation would fulfil the demands of the Court. The Labour party accepts the recommendations of the Joint Committee, but I wanted to note Professor Ekins’ points, and I invite the Minister to reassure the Committee that those points have been taken into account.
I would also like reassurance from the Government that the championing of the judiciary that they displayed in their response to the Joint Committee on the order is a course that they will stay on. It was welcome to hear in the Government’s response to the Joint Committee’s report into the first draft remedial order, a reaffirmation that an
“independent and impartial judiciary is one of the cornerstones of a democracy”.
I hope that is a view they keep to when they return to the constitution, democracy and rights commission that they announced in their manifesto, with comments about how judicial review can be used,
“to conduct politics by another means or to create needless delays.”
Our judicial system is the best in the world, which means that cases such as Mr Hammerton’s are incredibly rare, but it is right that the order legislates for errors that can occur and allows victims to receive damages where it is appropriate.
Draft Northern Ireland Act 1998 (Section 75 - Designation of Public Authority) Order 2020
Peter Kyle Excerpts(3 years, 10 months ago)
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Peter Kyle (Hove) (Lab)
It is a pleasure to serve under your chairmanship for the first time, Mr Stringer.
The official Opposition support this instrument, which designates the new Independent Monitoring Authority for the Citizens’ Rights Agreements—IMA—as a public authority, for the purposes of section 75 of the Northern Ireland Act 1998. It does so by giving public authorities that carry out functions relating to Northern Ireland the statutory duties of equality of opportunity among the nine equality categories and the good relations between persons of different religious belief, political opinion and racial group.
The IMA will be an important public authority in Northern Ireland, so it is right that we give it the same statutory duties that other public authorities have. The IMA will have a crucial role to play following our departure from the European Union. It will be an important safeguard for the rights of the EU27 citizens in the UK after the end of the implementation period.
Being the single authority with responsibility for monitoring the implementation of the citizens’ rights provisions of the EU-UK withdrawal agreement is no small task. We have all been contacted by constituents who want reassurance that citizens’ rights will not be at risk. We expect that the Government will keep to their commitments on the IMA, and that it will be an organisation with genuine teeth when it begins its operations in Swansea later this year. During the debates on the withdrawal agreement, it was promised that the IMA’s independence would be valued and that it would be not be a perfunctory organisation. I hope the depth of feeling that has been generated as a result of the EU settlement scheme will be reflected when the IMA begins its role.
The power to bring legal action against the Government or a public body that has failed to implement or apply citizens’ rights correctly is crucial. Subjecting the IMA to section 75 duties will make it a better organisation and put it within the remit of the Equality Commission for Northern Ireland to investigate if it does not follow its duties as set out.
The Labour party looks forward to reading the equality scheme that this new organisation will put forward in due course. Can the Minister give assurances that this secondary legislation confirms the Government’s commitment to the IMA and that the powers allowed in the European Union (Withdrawal Agreement) Act 2020 to transfer the functions of the IMA to another body that is a relevant public authority will not be used?
As the end of the transition period draws nearer, are there any updates that the Minister can give us on how the formation of the IMA is progressing in light of the current coronavirus situation? I hope that it has not been delayed.
The order gives the IMA the statutory foundation it needs to function as a UK-wide body. Labour welcomes it, and we hope that it represents another step forward in the formation of the IMA as the truly independent and effective body that it desperately needs to be.
Domestic Abuse Bill (Eleventh sitting)
Peter Kyle ExcerptsWednesday 17th June 2020
(3 years, 10 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 17 June 2020 - (17 Jun 2020)
The Chair
I remind everyone about social distancing, which is very important. If anyone is unhappy with the social distancing in the room, please let me know and we will try to do something about it. It would help Hansard enormously if we could email copies of notes or speeches to hansardnotes@parliament.uk.
New Clause 25
Repeal of provisions about defence for controlling or coercive behaviour offence
“In section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship), omit subsections (8) to (10) (which make provision for a defence in proceedings for an offence under that section).”.—(Peter Kyle.)
This new clause seeks to repeal the ‘carers’ defence’ for the offence of controlling or coercive behaviour in intimate or family relationships.
Brought up, and read the First time.
Peter Kyle (Hove) (Lab)
I beg to move, That the clause be read a Second time.
It is great to serve under your chairmanship again, Mr Bone—welcome back to the Committee. I rise to speak to new clause 25, on the repeal of provisions about defence for controlling or coercive behaviour offence.
Domestic abuse against disabled people is simply not discussed enough. They are hidden victims. When abuse against disabled people is raised, it is usually in the context of adult safeguarding processes, which labels disabled people as vulnerable adults and which disabled survivors and specialists in the field tell us is failing them.
The new clause reflects 10 years’ worth of casework by Stay Safe East, one of only two organisations in England and Wales led by disabled women supporting disabled survivors, and its partner organisations, in an advisory group on domestic abuse and disability. That is two specialist disability and deaf services for a disabled population of 10 million people.
The data on abuse against disabled people is grim. Disabled adults are at least 1.5 times more likely to be a victim or survivor of violence than non-disabled adults. Disabled women are at least three times more likely to experience domestic abuse from family members, be that their partner, parents, siblings, adult children or other family members. Some of the abusers will also be the person’s carer. It is highly likely that those figures are an underestimate, as the only example—the crime survey—is not in an accessible format for deaf and disabled people to participate in, and many survivors cannot access external help.
The rate of domestic abuse against disabled men is also higher than against non-disabled men, but disabled women are more likely to experience repeated, sustained and more violent abuse than disabled men. Disabled children, and particularly disabled girl children, are more likely to experience sexual violence and physical abuse than non-disabled children. What is more, disabled people may have other people in their lives who have a level of control, whether that is unpaid carers or paid carers from an agency, or a personal assistant.
This is the case for disabled women across all communities, of all ages and all backgrounds. Disabled women face specific forms of abuse at the hands of partners, family members and paid or unpaid carers: control of communication; control of medication; restricting access to disability support; using a person’s impairment to control them—for example, playing on their mental health or taking advantage of the fact that they have learning disabilities—forced marriage on the grounds that the partner “will look after you when I am gone”; and constantly abusing women because of their impairment. That, in itself, is a form of hate crime.
Abusers hold the very real threat that, “They will take your kids away from you” over a disabled woman. In the experience of both Stay Safe East and SignHealth, a deaf-led service for deaf survivors of domestic abuse, deaf or disabled mothers are at much higher risk of losing their children through the courts or other domestic abuse. In some cases, the courts opt to place children in the care of an abusive father rather than letting them live with a disabled mother, who is considered a poor parent for reasons simply of her disability, and providing support to keep the children with her.
Unfortunately, disabled victims who are able to speak out against this face multiple barriers to gaining safety and justice. Poor access to refuges or emergency accommodation; voice phone-only contact with many services, which excludes deaf women and those without speech; services not set up to deal with victims who need long-term support; a lack of quality, accessible information or British Sign Language interpreters; no access to counselling—the list is very, very long.
Worst of all is not being believed by police, social workers or health workers because they are disabled women, which is something that is frequently reported by deaf and disabled women who approach the two specialist organisations. A little-known clause, now subsections 76(8) and (9) of the Serious Crime Act 2015, introduced what has been dubbed “the carers’ defence” by disabled survivor groups. It introduced a worrying caveat into what was a piece of legislation to protect victims of abuse, by allowing an abuser who is facing charges of coercive control to claim that they were acting in the best interests of the victim.
That provision was originally brought to the attention of legislators through the efforts of Sisters of Frida, a disabled women’s collective, and Stay Safe East, but it became part of the 2015 Act. Although the clause may have been introduced with the best of intentions, to avoid unnecessary prosecution of carers who were, for example, preventing somebody with dementia from going out alone because they were at risk, there is a real risk that it could be used by abusers to claim that they are acting in the best interests of somebody they are controlling with malicious intent.
That is especially true of people who might be seen to have capacity issues, such as deaf people, people without speech, people with cognitive issues as a result of a stroke, people with learning difficulties and people with mental health challenges. That, of course, is a substantial number of potential victims among those who face the greatest barriers to safety and getting justice.
For example, the parents of a young woman with mild learning disabilities stopped her going out alone, only letting her go to college with a chaperone, on the grounds that she was at risk from strange men. The parents had failed to teach their daughter about safe relationships, had removed her from personal, social, health and economic education lessons in school, and had controlled her friendships with her peer group. The family claimed that they were protecting her. The young woman initially believed that her parents were doing their best for her, but as she grew up she came to realise that she could make her own decisions. It subsequently emerged that, on top of all the coercive control, the family were taking the young woman’s benefits, and there was also physical abuse.
The section gives a clear message to disabled survivors and victims generally: “Your decisions are not your own, and abusers can claim to be acting in your best interests.” “For her own good” is an expression we often hear abusers using, even if they are abusing that very interest, and the courts will let them get away with exercising abuse of power over their victims.
In a context where disabled survivors are the least likely to speak out, and where, if a case does go to court, the chance of a successful outcome for the victim is very low, especially for disabled victims, that is not the message that we want legislation on domestic abuse to give to survivors or, for that matter, the police, the Crown Prosecution Service or abusers. The Care Act 2014 and the Mental Capacity Act 2005 both provide sufficient protection for genuine carers who face malicious allegations. A law to protect victims is not the place for a clause that protects potential abusers.
All too often, concerns about disabled victims are ignored. The Government now have a real opportunity to listen, and we urge the Minister to take full advantage of that opportunity. We are talking about a group with many intersectional and very complex challenges, which provide additional areas for abusers to exert control and abuse.
The Parliamentary Under-Secretary of State for Justice (Alex Chalk)
This is the first of two debates on different aspects of the controlling or coercive behaviour offence in section 76 of the Serious Crime Act 2015. As the hon. Member for Hove has indicated, new clause 25 seeks to repeal the defence in section 76(8), which has been labelled by some as the “carers’ defence”.
Currently, the coercive or controlling behaviour offence allows for such a limited defence if the accused believes that they were acting in the best interests of the victim. It is important to note that the accused would also need to demonstrate to the court that in all the circumstances of the case their behaviour, while apparently controlling, was reasonable. This defence is intended to cover cases, for instance, in which the accused was the carer for a disabled spouse, and for medical reasons had to compel their partner to take medication or to stay at home for their own protection.
It is worth taking a moment to consider the sorts of circumstances in which that defence might apply. Imagine a situation in which neighbours walk past a home and see someone who wants to get out of the front garden and on to the road, and is in some distress at not being able to do so. That neighbour calls the police, and the police then investigate. It emerges that the person trying to get on to the road is, very sadly, suffering from dementia, and their partner is a person of unimpeachable integrity and good character—a decent, loving partner of many years’ standing who has shown nothing but care and compassion for that individual, but who is concerned that if they get out on to the road, they will be a danger to themselves and others. Is it seriously to be suggested that that person should be at risk of conviction, punishment and disgrace?
Alex Chalk
Of course it might be the case, but the important thing is that this defence allows a proper opportunity for a tribunal of fact to consider that, and I think it is absolutely right that it should do so. It is worth noting that under section 76 the burden is on the individual to advance that defence, and for a tribunal of fact to then consider whether it has been disproved. In other words, if that individual advances something that is utterly implausible, a jury—or indeed a bench of magistrates—would have little difficulty in exposing it as such.
Peter Kyle
It is important to note that we are leaping straight from a hypothetical, in which a woman with dementia is trying to climb over a fence, to court. However, between those two stages we have the first responders. Having experienced the training, care, compassion and expertise of the frontline responders in the prevention team of Sussex police, I would find it extraordinary if a frontline responder could not tell the difference between these scenarios, or certainly determine whether there is enough evidence to pursue the kind of prosecution that the Minister is describing.
Alex Chalk
We have to be very clear about this. If an individual does not have that defence, considering the elements of section 76, we would be left with a person who is apparently being caused some distress—as would be evident to the first responder, or indeed to a police officer, who might have to effect an arrest—and the distress would appear to have been caused by that person’s liberty having been restricted. In those circumstances, unless the individual has the defence that they were exercising proper control in the interests of the other person, they are at risk of being arrested and prosecuted. That would be a serious concern, would it not?
I should also add—I do not think this point is controversial—that there is an exemption within section 76 concerning under-16s. In other words, where people are in a position of responsibility for somebody who is under the age of 16 and may have to inhibit that person’s liberty, that is considered perfectly understandable and justified. The argument would therefore be this: why is it that in circumstances where, sadly, an individual is at risk and vulnerable, it should not be open to that carer—who everyone accepts is loving, decent and caring—to say that this was in the interests of the individual?
I accept the hon. Gentleman’s premise that it is possible that some people would seek to advance an unmeritorious defence. That is absolutely right, but I respectfully say to him that when he says, “The courts let them get away with it,” he is unfairly labelling the courts. In my opinion, the courts have shown themselves well able to see through a spurious defence. The carer who seeks to try it on and to abuse this proper defence will be given short shrift by a bench of magistrates, or indeed by a jury. We should trust juries and courts to do justice in each case.
Alex Chalk
No, it is not the same at all. If the hon. Lady will listen for a moment, the point is that there is, on the face of a statute, a defence that the jury can consider. They get to consider it only if a judge is satisfied that there is a prima facie defence—in other words, if what the defendant is advancing is patently and transparently unmeritorious, it may well not even go to a jury. A judge might say, “This is such a load of old nonsense that it doesn’t even cross the threshold for a jury to decide.” It is simply where there is a prima facie case. We should trust juries to say, “Is there something in that, or is there not?” It is not for us to adjudicate in every single case. Trust juries; trust the people. It is different from the point that the hon. Lady was making about rough sex, because there was a lacuna in the law. Our job is to fill the lacuna and then leave it to juries, who have shown for many centuries that they are well placed to do justice in a specific case.
I will make a final point on this issue, because I do not want to dwell too long on it. If the policy were not in place, there is a danger that the same people that the hon. Member for Hove quite properly wants to stand up for, and who we want to stand up for—namely, people with disabilities—could be disadvantaged if people take the view of, “Hold on a moment. By doing what I think is genuinely and objectively in the best interests of an individual, I am at risk of conviction, punishment and disgrace. Do you know what? Why on earth should I be doing that? Why should I be putting myself at risk in that way.” We have to ensure that we do not inadvertently, and despite the best intentions, find ourselves making life more difficult for the people we want to support.
Peter Kyle
The Minister is a very effective advocate, but the bottom line is that all the agencies representing frontline victims and survivors are speaking with unanimity. They want the law changed and the new clause struck off, because they say it is affecting their service users. There is no organisation out there working with service users that is defending the clause; it is only him.
Alex Chalk
With respect, that is not a fair characterisation. Parliament had the opportunity to consider the Bill in 2015. It went through Committee stage in this House, and it went through the House of Lords. It was Parliament’s will that it should exist. What is now being suggested, less than five years later, is that we should sweep away something that was there in the past. In my respectful submission, the case for that has not been made.
Of course, all matters are considered with care, particularly matters of this kind of sensitivity, but we have to be alive to the fact that sometimes, if we remove such a defence, we risk making the position far worse for the people we want to protect. We see that time and again when people are concerned that if they are not given the opportunity to advance their defence and simply to say, “Listen, you decide whether I have got this wrong.” If they do not have the option at least to put forward their defence so that 12 people who have no prior knowledge can make a fair decision, it would be unfair on them and would risk unfairness to people with disabilities.
The final point that I want to make is that the equivalent domestic abuse offence in Scotland contains a similar defence, under section 6 of the Domestic Abuse (Scotland) Act 2018, as does the proposed new domestic abuse offence in Northern Ireland, which is clause 12 of the Domestic Abuse and Family Proceedings Bill, currently before the Northern Ireland Assembly. This is not an outlier provision, I respectfully submit.
Notwithstanding the very proper concerns expressed by the hon. Gentleman, I invite him to consider that, set in a wider context, seeking to exclude the provision is not necessary. In the light of my explanation, I invite him to withdraw the new clause.
Peter Kyle
With your permission, Mr Bone, may I speak without a jacket on in this stuffy weather? I do not want to offend your sensibilities.
Peter Kyle
Thank you, Mr Bone.
We need to make progress today, and we have a lot to get through. I will withdraw the new clause, in the clear hope that, as the Bill progresses through Parliament and goes to the House of Lords, they may have more time to spend on such matters. They might be able to have more consideration and ventilation of the debate, which we were too speedy on today. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 28
Controlling or coercive behaviour offence
“(1) In Part 5 (protection of children and others) of the Serious Crime Act 2015, section 76 (controlling or coercive behaviour in an intimate or family relationship) is amended as follows.
(2) For subsection (2) substitute—
‘(2) “Personally connected” has the meaning set out in section 2 of the Domestic Abuse Act 2020.’
(3) Omit subsections (6) and (7).”—(Jess Phillips.)
This new clause would ensure that those who were previously personally connected are protected from coercive and controlling behaviour (including economic abuse) that occurs post-separation.
Brought up, and read the First time.
Jess Phillips
I beg to move, That the clause be read a Second time.
I also do not have a jacket on, but I am not compelled to wear one—I think the only uptick of being a woman in this place is that we can wear whatever we want; it is one of the benefits. I also have trainers on.
Alex Chalk
I am sure that hon. Gentleman does look at it.
The 1997 Act was amended to include section 2A, which deals with the “Offence of stalking”. Section 2A says:
“A person is guilty of an offence if… the person pursues a course of conduct… and… the course of conduct amounts to stalking.”
Then, however—this is what I think is brilliant—the 2012 Act goes on to look at the sorts of behaviour that might constitute stalking. Subsection (3) says:
“The following are examples of acts or omissions which, in particular circumstances, are ones associated with stalking… following a person… contacting, or attempting to contact, a person by any means… publishing any statement”
relating to that person. It continues:
“monitoring the use… of the internet… loitering in any place… interfering with any property in the possession of a person… watching or spying on a person.”
The reason why that is important is that it sets out the sorts of behaviour that could be stalking, but it is not exhaustive.
The reason why I say of all that is that if someone at the end of a relationship, when the two people are no longer living together, engages in a course of conduct that, to the man or woman on the Clapham omnibus, is a bit like stalking—whether or not that means trying to exert economic control—there is the potential for offences there, and I will come on to them while I am still sympathetic to the point made by the hon. Member for Birmingham, Yardley.
I am particularly mindful of that because in my own county of Gloucestershire—the Under-Secretary of State for the Home Department, my hon. Friend the Member for Louth and Horncastle has already mentioned this—Hollie Gazzard was brutally murdered. Those who have been victims of stalking say that it is like murder in slow motion, because of so much of what precedes it in terms of stalking behaviour. My point is that that can include economic abuse as well.
However, Surviving Economic Abuse argues further that stalking and harassment offences, although relevant, are not designed specifically to prosecute the sort of behaviour we are discussing. I accept that, but it is also fair to point out that, because of the way that stalking offences are drafted, it is not beyond the wit of man or woman to conceive of how they could be included, based on the facts of a specific case.
In addition, the new statutory definition of domestic abuse includes ex-partners among those defined as “personally connected” and does not have a “living together” requirement. Therefore, an amendment to the controlling or coercive behaviour offence could be seen as conforming within the definition in clause 1.
However, the case is not clearcut, given that the offence is still relatively new, and there is currently limited data available in support of a change. Because the case is not clearcut, the Government committed, in response to our 2018 consultation on domestic abuse, to conduct a review of the offence, as the hon. Lady is aware.
Peter Kyle
We are using the term “migrant woman” to describe all the people here. Should we not place on record that they are not migrants first and foremost? They are mothers, neighbours and the people we pass in the street and talk to when we are on public transport. They are colleagues in workplaces, universities and places of education. They are fully formed human beings integrated into our world here and they are also people who come from other countries.
Jess Phillips
Absolutely, I have absolutely no doubt that today in this building there is somebody serving us coffee or doing something of service who has no recourse to public funds and is affected by the problem I am talking about. My hon. Friend is exactly right. They are our careworkers and NHS workers. They are the students who keep our universities in money. They are the people who serve us every day. They are our family members. They are people who deserve help when they are harmed. They are taxpayers. They are people who give in both effort and resource. They deserve exactly the same as everyone else. If I walked into a police station today, nobody would ask me for my immigration status. Nobody would care. It would not be the thing that they thought they had to care about. They would ask me if I was all right and would treat me as a victim. If I was from Bolivia, they would ask me about my immigration status.
As the hon. Member for Edinburgh West said, we are at the precipice. It is not okay that some people matter and some people do not. It is one thing to try to undo things from the past—to topple statues and try to deal with complex cases from the past—but we are making this law today, and we are not making it for everyone. That is fundamentally wrong.
There are women like Myra—the final case study—who attempted to leave her abusive husband a number of times, having reported her rape to the police. They took no further action and did not refer her to local domestic abuse services. After three years, she made the decision to find safety and leave. She had no recourse to public funds, and contacted 10 refuges, which were unable to offer assistance due to the NRPF condition. During that time, she was forced to remain at home with her husband and faced further abuse, which took its toll on her mental health. She said:
“many times, I thought of giving up, many times.”
Those case studies all come from the Women’s Aid “Nowhere to Turn” report.
I can already anticipate that the Government’s response to what I said will be to point out the ongoing Home Office internal review into NRPF. I am sure the Minister will mention how the Government have recently announced £1.5 million for a pilot fund to cover the cost of support migrant women with NRPF in refuge in order to better assess the level of need for that group of victims to inform the spending review decisions on a longer-term basis. Both those proposals fail to appreciate the urgency and seriousness of the risk of abuse and destitution that abused migrant women on non-spousal visas face.
Domestic Abuse Bill (Eighth sitting)
Peter Kyle ExcerptsThursday 11th June 2020
(3 years, 10 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 11 June 2020 - (11 Jun 2020)
Julie Marson (Hertford and Stortford) (Con)
I want to touch on my experience in the courts, particularly the specialist domestic violence courts. However harrowing it has been, it has been a genuine pleasure to be able to sit in those courts.
There are some common themes that I have seen in court. It is usually women and children affected. There is always a power and control dynamic; it is never just about the violence, although there usually has been violence. And there is always fear on the part of the victim, even with the special measures that I have seen—the screens and so on. I could still see the victims, and I saw them crying, shaking and trembling. This is so important. What such a measure does is take away some of the power that the perpetrator has to control the victim in the courtroom environment, because they are still trying to control, even right at that moment, with looks, sounds, movements—with everything they can muster at the time. Therefore, I profoundly support special measures across the piece, because I think that they are really valuable in limiting that control right through the justice system.
Peter Kyle (Hove) (Lab)
In the hon. Lady’s experience of dealing with these cases and being able to see the impact on victims, was she aware of the challenges that victims have before they get into the courtroom, because often in family courts it is very difficult to separate victims from perpetrators? Was she aware, in her job at the time, that that was also an issue that needed to be dealt with?
Julie Marson
The hon. Gentleman makes a really important point. Long before I ever see a victim in court, there has been a huge process to get there and to provide the right support. Independent domestic violence advisers and different support mechanisms are in place; there are supporting people who come in and sit with the victim in court, but it is a hugely traumatic experience and support is needed throughout that process.
I would add a point about a common theme among perpetrators. When, in normal criminal cases, shoplifters or burglars or other violent offenders are convicted and sent to prison, there is a shrug of the shoulders—it is a part of their life; a general hazard of the criminality that they are involved in. When I have had—I will use the phrase—the pleasure to convict a perpetrator and send them to prison, it is noticeable that all the power has all of a sudden been stripped away. Their indignance and fury is palpable; you can sense it and see it. That is what makes it a different crime and a different experience, and that is why special measures are important. I speak to that experience.
Alex Chalk
Courts have a common law discretion to manage their own proceedings, but it will be important for us to assist the them as much as possible by setting out the categories that should trigger the exemption. Although courts can act of their own motion, it is none the less important to prescribe to an extent that the provision applies in circumstances where somebody has been convicted, charged or cautioned. I will develop that point in the following passage.
In the light of the recommendation from the Joint Committee on the Draft Domestic Abuse Bill, the clause now makes provision that the automatic ban will also apply in other cases where a witness has adduced specified evidence of domestic abuse. The evidence will be specified in regulations and, as recommended by the Joint Committee, we intend for this evidence to broadly replicate that which is used to access civil legal aid. That is probably the point that the hon. Lady was driving at.
The prohibitions also apply reciprocally, to prevent a victim from having to cross-examine their abuser in person. Where the automatic ban does not apply, the clause also gives the court a discretion to prohibit cross-examination in person where it would be likely to diminish the quality of the witness’s evidence or cause significant distress to the witness or the party. That is the point about a court’s discretion: the judge has the individuals in front of them, can hear from them and can make a decision based on that.
In any case where cross-examination in person is prohibited, either under the automatic prohibition or at the discretion of the court, the judge must consider whether there is a satisfactory alternative means by which the witness can be cross-examined or the evidence can be obtained. That would include means that already fall under the judge’s general case management powers, such as putting the questions to the witness themselves or via a legal adviser, or by accepting pre-recorded cross-examination. I suppose one might imagine cases where the things that need to be cross-examined on are so narrow in scope that it would not be worth the aggravation of instructing independent counsel if the judge can do it and do justice in that way. It is important that the court can act of its own motion and flexibly, and the clause retains that flexibility.
If there are no satisfactory alternative means, the court must invite the prohibited party to appoint a legal representative to carry out cross-examination on their behalf. If they choose not to, or are unable to, the clause gives the court the power to appoint a legal representative—an advocate—for the sole purpose of conducting the cross-examination in the interests of the prohibited party. The court must appoint an advocate where it considers this to be necessary in the interests of justice.
There could be circumstances where it is not possible to protect the prohibited party’s rights to access to justice and/or a family life without the appointment of such an advocate. This might be in circumstances, for example, where the evidence that needs to be tested by cross-examination is complicated, because it is complex medical or other expert evidence, or because it is complex or confused factual evidence, say from a vulnerable witness. The clause also confers power on the Secretary of State to issue statutory guidance in connection with the role of that advocate.
The clause also confers power on the Secretary of State to make regulations about the fees and costs of a court-appointed advocate to be met from central funds. We understand the particular skill and care that is needed to carry out cross-examination of a vulnerable witness effectively. We will be designing a full fee scheme to support these provisions, in consultation with the sector and interested parties, prior to the implementation of the Bill.
This clause seeks to ensure that, in future, no victim of domestic abuse has to endure the trauma of being questioned in person by their abuser as part of ongoing family proceedings. It makes a big difference, and I commend it to the Committee.
Peter Kyle
It is rare but pleasing when one agrees so fully with the person one shadows, and I am grateful to him. I do not want to shock the Minister—I do not want him to be clutching his pearls as I say such words—but it is certainly the situation we find ourselves in on this clause. We are not opposing or seeking to amend the clause; we agree fully with it and what it seeks to achieve.
However, I want to spend a bit of time explaining how we got to where we are, because it is important. It is important that we make sure the record reflects the situation that this clause seeks to rectify and the impact that the cross-examination by perpetrators of victims has had on people. In so doing, I speak on behalf of a great number of advocates, both in Parliament and outside, over a great period of time. I can speak for myself on this issue, but I am very aware of the fact that I am also speaking on behalf of a lot of other people.
I had personal experience of this issue very soon after getting elected in 2015. Soon after the election, I was sitting on the floor of my campaign office among the detritus of a very vigorous campaign, sorting through things and trying to figure things out, when a very fragile, very vulnerable and very damaged woman suddenly appeared in the doorway. She came in to see me, and said, “Are you the new MP?” I said yes, and she said, “I saw your leaflets. You look like a friendly person. I am now going to flee my relationship, and I will only speak to you about it.” We sat in the corner of the office, and this woman was bruised and bleeding. She had literally escaped from the relationship, and I, as an MP of a few days, was thinking on the inside, “Oh my God, what do I do in this situation? How do I help this extraordinarily vulnerable person?” I just did the best I possibly could, and that involved brokering a relationship between her and the police, about which she was terrified. She was scared of the authorities because the authorities had let her down so many times, repeatedly. I supported that woman, and she went into a protective programme. She now has a new identity and a new life, and although she will never ever be able to escape the horrors of what she went through, she certainly has an opportunity to discover new, more fruitful aspects of life, which she was prevented from doing before.
One of the aspects I experienced very soon after the process of supporting her began was the experience of the family court. I could not believe what I heard when she came to see me after some hearings in the family court, where she was made to share the space of the person she had fled. Having seen her on the day she fled her relationship, it was horrendous to hear that she was forced into the same waiting room as this person, had to be in the same space when their relationship was discussed and, crucially, was cross-examined by him.
At the same time, another constituent came to see me in my surgery. She had just been cross-examined by her abusive partner for the third time. She had previously been hospitalised; the perpetrator had broken more than a dozen or her bones and repeatedly raped her. On the third appearance in the family court, she was shaking so violently that she needed assistance to get to the taxi afterwards. On the journey home, the taxi driver had to stop and help her out of the taxi so that she could vomit on the pavement.
That was happening to people who I was sitting with and who I represented in Parliament. I could not understand that the very institutions that existed to protect people like them were facilitating the abuse—in front of judges, in a room with police officers, abuse was happening, and nobody was offering support. To my shame, I could not quite believe that this was possible in 21st-century Britain. When I came back to Parliament, I sought out my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) and asked him about it. I said, “I am hearing this thing, but I can’t believe it is possible.” He, as the former Director of Public Prosecutions, said, “It is happening, and there is a big campaign out there to try and change it.”
I could not believe that it was still happening, so I went to speak to Ministers. Repeatedly, Minister after Minister told me that a cultural change was needed in the criminal justice system, not a legislative change. I could not accept that. Having gone to speak to judges to understand why change was not happening, and having repeatedly spoken to Ministers, I found it incredibly hard to believe that the Government were not seeing or understanding the abuse. Of course, they were seeing it, but they were refusing to change. There are many lessons here, and I hope Back Benchers realise that persistence is one of them.
On 15 September 2016, I secured a Backbench debate that was led by Angela Smith, the then Member for Penistone and Stocksbridge. We had gone with a cross-party group to get a Backbench debate. There were several Tories in the group, and we worked as a formidable team. My hon. Friend the Member for Birmingham, Yardley was not part of the group that went to the Backbench Business Committee, because she sat on the Committee and was supposed to be impartial, but it was clear from her facial expressions where she stood on the issue.
During the debate itself, I was able to put on record the most shocking example of this abuse that I have ever come across. In the eight or nine months leading up to the debate, I met dozens of women who had gone through such abuse. The most shocking case was that of Jane Clough—some people in this room will be aware of her case. I am not the sort of person who normally quotes himself, but in going through all the different debates that have taken place in Parliament in the last five years on this issue, I read some of the examples I put on record, and I want to quote directly from one debate. My reason for doing so is that I want Members to realise, and I want the record to reflect, that this example has been on the House of Commons record for almost four years.
Jess Phillips
Is one reason why Lobby journalists and other journalists did not believe it potentially because of the deep secrecy about what occurs in family courts? In the case of the Cloughs, while they were going through the court, they would have been forbidden from speaking about it.
Peter Kyle
I am grateful to my hon. Friend, who makes an important point. She is right about the secrecy of family courts. In a subsequent urgent question that I was granted on cross-examination, I asked for a full review of practices in family courts with that very much in mind. Since then, some journalists have been allowed into family courts, but it is heavily regulated to the point where it still stymies the process, work and operation of the family court. It might interest Members to learn that in that quote from Hansard, I used parliamentary privilege. I broke the regulations of the family court to even describe the process that occurred in that exchange in the family court with the Clough family. That is how heavily restricted the processes of family courts are at times, and that is what has led to the lack of reform in comparison with other parts of the criminal justice system. Everything that we are discussing in this clause is already the case in criminal courts.
If the press and the media had been able to scrutinise, and if we had known what was happening in some of those cases, it would have been dealt with some time ago. That is another important point, because The Times splashed the story twice on its front page over Christmas 2016. On 5 January 2017, it again placed the story on the front page, but at that point with an off-the-record briefing from a source in the Ministry of Justice who said that they were going to review and take action on it.
What frustrated me at that point was the equal opposite to what elated me. I was absolutely punching the air that there was going to be movement. What frustrated me, as a parliamentarian, was that we had given the Government half a dozen opportunities in the previous six months on the record in the Commons using the right procedures to get the change that we needed, but it took getting the media involved to deliver it.
We all know that, no matter who the Speaker is, every Speaker will go through the roof when they see an off-the-record briefing making announcements to the media. I immediately asked Speaker Bercow for an urgent question, which I was granted on 7 January to discuss cross-examination in family courts. The Minister who responded to it on 9 January was the right hon. and learned Member for North East Hertfordshire (Sir Oliver Heald), who was characteristically decent and wholehearted in his response and who engaged with the issue head on. He said:
“Is it necessary to change the law? The answer is yes it is. Primary legislation would be necessary to ban cross-examination…work is being done at a great pace to ensure that all these matters are dealt with in a comprehensive and effective way—the urgency is there…My feeling is that what is required is pretty straightforward: a ban, and then the necessary ancillary measures to allow cross-examination without the perpetrator doing it.”—[Official Report, 9 January 2017; Vol. 619, c. 27.]
Hon. Members can imagine that that was a big moment.
As an aside, I refer to the exchange that just took place between the Minister and my hon. Friend the Member for Birmingham, Yardley. When she intervened on him and asked, “When will it be done?”, he replied saying, “As soon as possible.” There was a guarantee to sort out cross-examination almost four years ago—the right hon. and learned Member for North East Hertfordshire said on the record, “the urgency is there”—so when we hear such things from Ministers, we sometimes have that experience, which is why we often seek to probe and get things on the record about timings.
We had a huge opportunity for change. We had the commitment of the Government. At one point the then Minister, the right hon. and learned Member for North East Hertfordshire, giddily galloped across the Chamber to put the amendment that he sought to move to the Prison and Courts Bill in my hand and said, “There it is. We’re going to do it.” Then, of course, we fell into the 2017 general election. Repeated attempts to get it fixed in the subsequent period also fell to the challenges of the time. Then, of course, we had the Bill that fell before the 2019 general election.
After the UQ of January 2017, I received over 1,000 messages from around the world—mostly women, but some men—who had experienced this in their own lives and felt an incredible need to share their experiences. I had underestimated the degree to which this is a community of people who have suffered, survived and are connected in various ways to share their stories. I had to take on a team of volunteers just to cope with their specific correspondence. Every single person who contacted me had such stories of pain and suffering, as well as persistence and fortitude to a degree that is almost unimaginable for someone who has not experienced it, that I believed every single one of them deserved a personal response.
What united every single message was gratitude that change was coming and a sense of relief that other people would not go through what they went through. That is why the delay of four years has been so difficult for very many people to stomach. Although the numbers have declined because courts have become more aware of the challenge, even one victim and survivor of domestic abuse experiencing a fraction of what we have just heard about would be one too many. So when my hon. Friend the Member for Birmingham, Yardley, members of our Front-Bench team and I read in clause 59:
“In family proceedings, no party to the proceedings who has been convicted of or given a caution for, or is charged with, a specified offence may cross-examine in person a witness who is the victim, or alleged victim, of that offence.”—
believe, me, I want to jump up and down screaming, “Hallelujah!” This is a very important moment. I wish it had come sooner, but it takes away none of the excitement, elation and gratitude that it is actually coming now. This is a good day and a good moment for very many people.
Some representative organisations and campaigning groups have been in touch with a request to amend the clause. They have concerns that still, within the letter of the law, it would be possible for a perpetrator, or alleged perpetrator, to nominate somebody close to them—a friend or a family member—to do the cross-examination on their behalf who might well act in their interests in terms of carrying on the abuse. I do not believe, from reading the Bill, that that is in the spirit of the proposed law or is something I believe a court would countenance. However, I seek reassurance from the Minister that they are aware of that, and that should it ever happen in court they will not wait six months, a year or four years before fixing it, but do everything in their power, including bringing something to the Floor of the House, to deal with it if that is what it takes.
Liz Saville Roberts
I too very much welcome the drive behind the clause. The hon. Member for Hove expressed so well the sense that victims have been grist to the mill in the past and this measure will re-set the balance to a degree. I very much agree with the spirit of the amendment to the clause, but there are a couple of points I would like to raise to bring to the attention of the Minister potential loopholes that may need attention in future.
Domestic Abuse Bill (Sixth sitting)
Peter Kyle ExcerptsWednesday 10th June 2020
(3 years, 10 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 10 June 2020 - (10 Jun 2020)
Victoria Atkins
I will address this clause briefly, because the hon. Member for Birmingham, Yardley has raised a query about it. Clause 23 relates to a perpetrator who is alleged to have breached the grounds of their notice. If a constable has reasonable grounds for believing that a person is in breach of a notice, they can be arrested without warrant, held in custody and brought before a magistrates court within 24 hours, or in time to attend the scheduled hearing of the application for a domestic abuse protection order—whichever is sooner. It is fair to say that these are very strong powers, which I hope shows the seriousness with which we believe the alleged perpetrator should be viewed, but also the seriousness with which the police and the courts view these notices.
The Bill also provides the police with a power of entry when they are arresting someone for breach of notice, and that is stronger than the current domestic violence protection notice provisions, which do not go quite that far. This additional power of entry will improve the police’s ability to safeguard victims and to gather vital evidence at the scene of an incident.
Peter Kyle (Hove) (Lab)
One of the most striking features of the clause is set out in subsection (2), which states:
“A person arrested by virtue of subsection (1) must be held in custody”.
These are indeed strong powers, but they send a very clear signal that the law and law enforcement are on the side of the alleged victim at such times. It is a very welcome move and will give confidence and respite to any alleged victims in future, so we thank the Government for delivering it.
Victoria Atkins
I thank the hon. Gentleman for that intervention. I am pleased that he sees what we are trying to achieve with this clause.
Question put and agreed to.
Clause 23 accordingly ordered to stand part of the Bill.
Clause 24
Meaning of “domestic abuse protection order”
Question proposed, That the clause stand part of the Bill.
Alex Chalk
I will say a couple of things. First, I completely agree with the hon. Lady’s observation that the powers are very stark but very welcome. It is important to note why they are in place. It is not uncommon that cases cannot necessarily be proven to the criminal standard: beyond reasonable doubt. The tribunal has to be satisfied that it is sure; however, there can be serious lingering concerns that, were it to apply a test of the balance of probabilities, it would have no difficulty in finding that the abuse had taken place.
It is to cater for those circumstances that the courts can now impose really quite robust measures to ensure the protection of complainants and the rehabilitation of perpetrators. They are important powers, and benches and courts will want to exercise them wisely. Inevitably, they apply to individuals who have not been convicted of any offence. The courts will therefore need to tread carefully to ensure that justice is done, but they have shown themselves well able to do that for many centuries.
Peter Kyle
My hon. Friend the Member for Birmingham, Yardley made the point very well that, for some of the issues that we are tackling with the legislation, the powers already existed in other pieces of legislation, but the courts, in their conservatism, refused to exercise them. As my hon. Friend asked, will the Minister ensure that his Department gives the right steer to the courts, which the president of the family division can translate into something that is actionable on the front line in family courts up and down the country?
Alex Chalk
The hon. Gentleman makes an important point. Ultimately, he will understand why I say that a very proper distinction exists between the legislature, the Executive and the judiciary. The judiciary are proudly and profoundly independent, and they will take their course and impose the orders if they think that it is in in the interest of justice to do so. Of course, we must ensure that courts are properly aware of the powers available to them. I have no doubt that the president of the family division, and indeed the Lord Chief Justice in the criminal sphere, will use their good offices to ensure that that takes place.
On the point that the hon. Member for Birmingham, Yardley made about whether we can look after the event to check that the powers are being used, first, there is, as she knows, the issue of the pilot. That provides a significant period to establish whether the orders are being taken up. Secondly, the Office for National Statistics has an annual publication of DA statistics that includes the different orders, so we will be able to get a sense of the extent to which they are being applied.
I hope that this will not sound overly fastidious, but one should not necessarily automatically read reluctance into a low level of use in one part of the country compared with others. It may be, because each case turns on the facts, that it was not appropriate in those circumstances. However, as a general observation, we will keep an eye on it, and there will be data on which the hon. Lady will no doubt robustly hold the Government to account. I beg to move.
Question put and agreed to.
Clause 28 accordingly ordered to stand part of the Bill.
Alex Chalk
It may be in the guidance but, I respectfully suggest, does not necessarily need to be in it. When a court comes to consider what it will or will not do, it may look at this measure and say, “Are we precluded from banning him from her workplace? If the answer to that is no, we will go ahead and do it, regardless of what is in the guidance.” It may be that it will be in there anyway, but I am confident that, as the Bill is set out, it is drafted sufficiently widely—deliberately so—for the courts to see their way to do justice and impose protections as they see fit.
Peter Kyle
One benefit of this approach to legislation is that it allows scope for creativity in the individual court to tailor to a specific circumstance that might not be predictable. In such circumstances, how can other courts learn from that innovation? It is obviously the responsibility of the judiciary, including the president of the family division of the High Court, but we have learnt from bitter experience that some courts and judges are almost impervious to change—I speak with respect to the former one before us. How does the Department seek to use innovation on the frontline in family courts to ensure that family courts in other parts of the country benefit?
Oral Answers to Questions
Peter Kyle Excerpts(3 years, 10 months ago)
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Peter Kyle (Hove) (Lab)
Thank you, Mr Speaker.
Disaster victims, just like victims of crime, deserve to have their rights enshrined in law. Only last week, a murderer was released on parole without the victim’s family even being informed, let alone consulted. Successive Governments have promised and pledged a victims law for the past 12 years. The Tory manifestos for the past three elections have promised a victims law. Will the Government commit to publish the draft Bill by this autumn?
Alex Chalk
This Government are absolutely determined to stand up for victims. We will be having a revised victims code and a revised victims law. That is built on a proud record of standing up for victims. [Interruption.] We will be publishing it as soon as possible.
Oral Answers to Questions
Peter Kyle Excerpts(4 years, 2 months ago)
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Mr Laurence Robertson (Tewkesbury) (Con)
Peter Kyle (Hove) (Lab)
Robert Buckland
I am very grateful to the hon. Gentleman for his question. He will know that the work of reform should never cease. There is a lot of work being directed by the president of the family division, and I have referred to the meeting that I am having with him tomorrow. My view about family litigation is that we need to take the confrontation out of it, particularly with regard to children’s proceedings, where the interests of the child have been, by dint of statute, paramount for the past 30 years. All too often, those interests are trampled underfoot by a far too adversarial approach. I think that it is in that direction that we need to be going, and I would be happy to engage with him and, indeed, with all interested parties to improve the experience of people in the family system.