Domestic Violence, Crime and Victims Bill [H.L.]

HL Deb 05 February 2004 vol 656 cc409-54GC

(Fifth Day)

Thursday, 5 February 2004.

The Committee met at a quarter past three of the clock.

[The Deputy Chairman of Committees (Baroness Hooper) in the Chair.]

Clause 13 [Code of practice for victims]:

Baroness Anelay of St Johns moved Amendment No. 62: Page 8, line 21, after "provided" insert "by criminal justice agencies

The noble Baroness said: In moving Amendment No. 62, I wish to speak also to Amendment No. 63. We have now reached Part 3 of the Bill, which sets out the new victims' code and creates a Commissioner for Victims and Witnesses. My amendments relate specifically to the code of practice which will be issued by the Secretary of State. They have been tabled in order to probe the thinking of the Government regarding the code and more specifically exactly to whom the new victims' code should apply and which organisations, either statutory or voluntary, would be bound to operate the code.

We have referred on previous occasions to the very helpful briefing by the Minister before the Grand Committee stage. At that meeting, I asked the Minister to explain which organisations would be covered in subsection (l)(b) of Clause 13. Clause 13(1) states: The Secretary of State must issue a code of practice as to the services to be provided to a victim of criminal conduct by persons appearing to him to have functions relating to—

1. (a) victims of criminal conduct, or
2. (b) any aspect of the criminal justice system".

The Minister said that the measure covered criminal justice agencies. I have "pinched" that wording and included it in my amendment. Will the Minister state more fully which organisations are covered?

We have made it clear that we support the code's intention. It has clearly been drawn up first and foremost in the best interests of the vulnerable. It is certainly clear from the statistics that we have that the criminal justice system does not work best when a witness feels that for one reason or another he or she cannot give evidence in court. It is important to know how the code will be operated and by whom.

The indicative code was published at the same time as the Bill and placed in the Printed Paper Office. It mentions Victim Support as one of the agencies with responsibilities regarding victims of crime. I am grateful to representatives of Victim Support for coming to the House a couple of weeks ago to brief me fully before Grand Committee. As an organisation, it had considered very carefully whether it should be included in the measure. After that careful consideration, it decided that it should be included but in the full knowledge of the responsibilities that such a course of action would impose. I am advised that they it also took great care to ensure that participation did not prejudice its charitable status. It decided to be included because it believes that victims of crime have a statutory right to its services.

Victim Support points out that the Bill allows for the code to be expanded over time to add obligations for agencies and departments outside the criminal justice system. That is indeed why I tabled the amendment—to find out what the situation is now and how the Government see it developing in the future against a background of amendments that we shall debate when discussing Clause 15 where we look at the implications for an organisation of being subject to operating the code.

Do the Government accept that it could be very difficult for some smaller organisations to be bound by the code? There may be implications for their administration that pose difficulties. It may, indeed, in some circumstances, cut across their charitable status. One would have to consider each case on its merits to decide whether inclusion in the measure was appropriate.

I ought to mention another matter. On a previous occasion, there was a query regarding whether my noble friend Lord Carlisle of Bucklow was in order to refer matters to the Minister regarding a clause stand part debate, when he had not given formal notice of that in advance. I mention it because as a result of that debate I gave notice to the Public Bill Office—I refer to the relevant notices of intention in the Marshalled List—that I wished to oppose every clause and schedule that appears on the Marshalled List. I did so to give the usual channels an opportunity to sort out the issue. I understand that it has now been sorted out. I have been advised that my noble friend Lord Carlisle was completely in order, as I had always expected to be the case. I have left those down simply because of the extra cost of reprinting the Marshalled List.

I can now give notice that I shall most definitely wish to speak on Clauses 15 and 18. There may be one or two others where I have peripheral matters, but that is most unlikely. I know that my noble friend Lord Campbell of Alloway has already given advance notice to the Chairman of those clauses on which he wishes to speak. I beg to move.

The Minister of State, Home Office (Baroness Scotland of Asthal)

I thank the noble Baroness, Lady Anelay, for her helpful exposition on the Question of whether the clause stands part. I understand why she did that. I thank her for her courtesy in indicating the clauses upon which she wishes to speak.

I also thank the noble Baroness for the way in which she introduced the amendment. She made it clear that the purpose of the amendment was to achieve clarity and obtain an explanation of why the original clause was drafted as it was.

The original clause was drafted in this way so that agencies and organisations that had significant contact with victims of crime but fell outside the remit of the criminal justice system might also have an opportunity for inclusion. The noble Baroness will know that many voluntary organisations were anxious that they should be considered where appropriate. Victim Support, which is, as the noble Baroness rightly indicated, the national charity that provides support and advice for victims of crime, has already given us its agreement to deliver service obligations under the code. That is reflected in the illustrative draft of the code, which I hope the Committee will have had an opportunity to see. A copy of it was placed in the Library of the House after the Bill was published in December.

The proposed amendment would exclude voluntary organisations, such as Victim Support, from delivering obligations under the code. It is significant that Victim Support was included as a result of its assent. Similarly, in future we might wish to bring within the code other voluntary or government organisations with significant contact with victims of crime. This is in effect a code of good practice. Many organisations have felt it is very helpful because it will be a thumbprint or a baseline from which they can work. Having clarified that issue, I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness Anelay of St Johns

I am grateful for that clarification. The noble Baroness properly said that Victim Support had been included with its assent. She referred to the fact that in future it may well be that the Government would wish to include other government departments, agencies and voluntary organisations. Is one to understand that non-governmental organisations would be included only after consultation and with their consent?

Baroness Scotland of Asthal

That must be right because they of course are voluntary agencies. They cannot be compellable. The noble Baroness will know that the code will be used as a benchmark against which service provision by statutory organisations can be judged on whether they follow what is in essence good practice. We would of course hope that voluntary agencies not specifically included in the code would find it a useful document on what they could or should aspire to provide in terms of support for victims and/or witnesses as appropriate.

Baroness Anelay of St Johns

I am grateful to the noble Baroness. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 63 not moved.]

Baroness Anelay of St Johns moved Amendment No. 64: Page 8, line 21, leave out "appearing to him to" and insert "who he has reason to believe

The noble Baroness said: I shall speak also to Amendments Nos. 65, 92 and 95. As will be apparent, there is a common theme to the amendments; namely, to ask the Government to justify the drafting of this part of the Bill, which gives the Secretary of State the right to make decisions on a subjective rather than, as I would prefer, an objective basis. That reflects some of the debates that we have had on Bills over the past year or so when, certainly on occasions, the Government have decided that slightly different wording would be more appropriate.

The Government's preferred drafting is that the Secretary of State should make decisions when something or someone appears to him to qualify for his grants or attention. It is the "appearing to him" to which I object. My amendments would introduce the objective test of requiring the Secretary of State to base his decision on having "reason to believe" that it is right for him to take action. Amendments Nos. 64 and 65 relate to the operation of Clause 13, which sets out provisions relating to the issuing of the victims' code and its application to the specified organisations or persons who have functions relevant to the operation of the code.

The noble Baroness has already given the Committee her own assurance or understanding that the Secretary of State would not specify someone or an organisation against his or its wishes. It would make sense, as she put it, to have consultation and their consent. I appreciate that it would also be vital for the Government to be sure that the funding and administrative competence of the organisations were both robust enough to ensure that they could comply with the code. Therefore, I am really asking why the Government need to leave the drafting in the subjective sense when it seems plain that the Secretary of State would need to apply an objective assessment before he or she then included an organisation.

Amendment No. 92 would change the wording of Clause 22, which gives a list of the authorities that will be within the remit of the new commissioner. The Secretary of State may amend that list by adding another authority that appears to him, to exercise functions of a public nature". Will the Minister explain how that would work in practice? Schedule 3 contains what seems to be a comprehensive list of authorities. Do the Government envisage adding authorities after the passing of the Bill and, if so, which? We are not sure which authorities are left. The list is put under subject headings. Could the Government introduce a completely new category of authority to the list under a new subject heading, or would they simply expand it by adding bodies that correspond to the existing category headings?

Amendment No. 95 concerns Clause 23. The Bill states that a person may disclose information to relevant authorities, which may include probation boards, and to the commissioner and an authority within the commissioner's remit. In order for the information to be released, there must be a purpose as defined by Clause 23(2). Currently, the Secretary of State is allowed to add a purpose to the list if it appears to him to be connected with the assistance of victims or witnesses. That seems a very wide power involving a subjective decision.

As will be debated later when the noble Lord, Lord McNally, moves amendments to Clause 23, disclosure is a subject that has to be treated with great care and sensitivity. That is why we think that an objective test would be more appropriate in this case. I beg to move.

Lord Borrie

Even before the noble Baroness spoke, I had a sense of deja vu from debates last Session on the Criminal Justice Bill. She never mentioned the magic phrase, "judicial review", which seems very relevant. The wording that she wishes to insert with the amendments would ensure the greater possibility, likelihood and feasibility of the decision being challenged by way of judicial review, and I do not really see the need for that. I do not see that she has made out a case for it. The matters are very much administrative ones, are they not? To require some objective test instead of what appears to the Minister to be suitable seems to be going too far. Judicial review is a hugely valuable device to keep Ministers and government officials on the straight and narrow, but I very much doubt that such is needed here.

3.30 p.m.

Baroness Scotland of Asthal

I am grateful to my noble friend for having stolen my thunder and for putting the issues so succinctly. I should like to reinforce some of the things he said.

Of course I understand the purpose of the noble Baroness's amendments: she is seeking to clarify whether we will act reasonably. My reason, therefore, for resisting the amendments is that they will make no significant difference. The Secretary of State is bound to act reasonably under the general principles of public law. That would mean that he would have to have good reason for deciding that, for example, a particular purpose appeared to him to be connected to a victim and witnesses. We see no need, therefore, to introduce an alternative test, when the actions he takes under these clauses are subject to challenge as they stand. I know the noble Baroness would want me to say that, so that the lawyers who read it will understand its purport.

Baroness Anelay of St Johns

I think this is a case of "Enter, stage right". The noble Lord, Lord Triesman, who has just joined us, has managed to avoid hearing a repeat of an argument I put during the Energy Bill proceedings. He will be extremely pleased to know that somewhere in government there is some joined-up thinking, although not a lot. The Minister gave pretty much the same answer as the noble Lord, Lord Whitty, did regarding the setting-up of the Civil Nuclear Police Authority.

The reassurance the Minister has given us is that there is a way of challenging the decision. As we discussed in another Bill, the difficulty is how easy it would be for someone who had a complaint to launch their action against the Secretary of State. As the noble Lord, Lord Borrie, is well aware, judicial review is a useful tool and is a lot easier to use than any other review of the Secretary of State's action.

I am prepared to accept, however, that within the limited aspect of three of the four amendments in the group, it would be heavy-handed to have judicial review as a recourse. There may be some scope for thinking again with regard to the use of data. I will have to look at that particular aspect.

I was a little concerned to hear the noble Lord, Lord Borrie, say that we were talking only about administrative matters here so we did not need to worry about judicial review. I shall look at his response when we reach Clause 10 of the Asylum and Immigration (Treatment of Claimants, etc.) Bill; the Government are saying that it is an administrative law, judicial review can be abolished and the tiers can be collapsed into one for appeal.

Lord Borrie

The noble Baroness is taking what I said rather further than I hoped or intended.

Baroness Anelay of St Johns

I will certainly greatly welcome the noble Lord's participation in the asylum Bill, as I do in every Home Office Bill. I shall be withdrawing the amendment.

Baroness Scotland of Asthal

Before the noble Baroness sits down, I shall give her some further reassurance. She also asked me whether we had any plans to add anything after Royal Assent. There is a power to do so in future. We could only add an authority that exercised public functions. We could, in theory, add a new category, and that might be appropriate if, for example, it became apparent that an authority's functions were becoming important to victims and witnesses and/or if the authority changed and we wanted to give the new authority identified a similar opportunity.

Baroness Anelay of St Johns

I am grateful to the Minister for that. I am not hostile to the idea of the list being extended where it is appropriate to do so, after consultation and consent, nor, indeed, to new headings. One hopes that, unlike many government Bills, this will be the last on the subject for a long time and we will not have to revisit it. It makes sense to have some flexibility. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 65 not moved.]

Baroness Anelay of St Johns moved Amendment No 66: Page 8, line 38, after '"different" insert "criminal justice

The noble Baroness said: Amendment No. 66 concerns a different aspect of Clause 13. The Bill allows the code to make provision for different purposes. It states that there can be different provision for different descriptions of victims, perhaps special cases with regard to sexual offences, persons who have different functions or descriptions of functions and different areas. That is very broad and is not even a definition. It is such broad drafting it is difficult to have an idea of what the Government mean by that.

Amendment No. 66 addresses the last category. Can the Minister explain what the Government mean by the phrase "different areas"? That can mean anything to anyone. I am confused. Are they referring to different parishes, different regions, or different police areas? The noble Baroness and I lived through the Courts Bill, some time ago now, although it does not seem it. With regard to that Bill, we spoke of the importance of having 42 local justice areas. Is that what is referred to? What do the Government mean by this? I beg to move.

Baroness Scotland of Asthal

Our intention is that the victims' code of practice will be sufficiently flexible to reflect local practices. For example, it may be that in one area it is the responsibility of the police to notify victims of a trial date, while in another it may be the responsibility of the Crown Prosecution Service. As long as the service is provided and victims are fully aware of where responsibility for service lies in their area, the requirements of the code will be met.

The noble Baroness is right to say that the Courts Act 2003 refers to local justice areas. We have also created local criminal justice boards. We do not have formal criminal justice areas; we have 42 or 43 police areas. "Areas" is a more easily identifiable word which could apply, as appropriate. The amendment would lead to uncertainty rather than clarification of the clause. I am sure that is not the intention of the noble Baroness. As the noble Baroness will know, criminal justice areas have no legal status and could theoretically be changed in future. Additionally, many of the service providers are not organised by criminal justice areas. Therefore, we want to keep the definition of "area", which is as broad and simple as possible and has sufficient flexibility to address the needs of victims and witnesses who will be covered by the code. It is for those reasons that I cannot accept the amendment.

Lord Mayhew of Twysden

Might not the word "localities" meet everyone's interests?

Baroness Scotland of Asthal

No. "Localities" can be interpreted in many ways. One needs to consider how the police boundaries are set up. The question is whether a police area is a locality. The noble and learned Lord will know that some police areas can be rather large. The area covered by the justice boards may differ slightly. We have tried with the local criminal justice boards, the courts boards and, for instance, the crime and disorder partnerships to keep within a similar area. However, we may soon go through major or minor re-organisation, and we are not quite sure how they will then be described. "Area", is a neutral term and can cover a multiplicity of things.

Baroness Thomas of Walliswood

Before the noble Baroness decides what to do with her amendment, will the Minister confirm that, in her explanation of how services were delivered, she was not suggesting that any difference in the standard of service delivery would be acceptable?

Baroness Scotland of Asthal

No, we are not suggesting for a moment that there is a difference of standards. However, we have accepted that one size does not fit all. We want to see similar outcomes, but we accept that they may be delivered in different ways in different areas in order to meet the needs of the people in that area. That is why we phrased the clause in that way, but there is absolutely no suggestion of a difference in the standard of service that we would aspire to deliver to people across the country.

Baroness Anelay of St Johns

I thank the Minister, and I understand her wanting enough flexibility to ensure that each area receives what is right for it. However, two issues raised by noble Lords cause me concern. The latter was just mentioned by the noble Baroness, Lady Thomas of Walliswood, and related to the standard of delivery.

National organisations have said to me that they are concerned that organisations that have a locus in a particular area of the country and operate the code there, but not elsewhere, will be expected to deliver the same kind of service as a very different organisation elsewhere. Concern has been expressed that unless there is some kind of—I hate the phrase—national standard, or some way of ensuring that standards are appropriate throughout the country, some areas could miss out. There could be a problem there. That feeling has been expressed.

Having worked with the National Association of Citizens Advice Bureaux for so many years, I understand the tension between local organisations that love their autonomy, are devoted to the delivery of service and do not like to have Big Brother or Big Sister looking over their shoulder, and national organisations that know they have to maintain a high standard of service if they are to preserve credibility nationally and indeed to preserve the credibility of the local organisation. That is difficult in itself. It becomes even more so if stand-alone, local organisations are going to operate the code, so I shall need to consider that.

My second concern is a geographical and sociological one, raised by my noble and learned friend Lord Mayhew of Twysden. He proposed the word "localities" as a solution. I understand the noble Baroness's hesitancy about that word, but I am trying to get at the same point as my noble and learned friend. I am trying to ensure that when the Government say that they want flexibility, all areas are not simply merged into one and the system becomes insufficiently responsive to the smaller areas. It is not just responsiveness to local rural areas that is important— important though that is—but also to large conurbations. Within those, areas vary enormously and may need a different kind of delivery of service while maintaining the quality. Will the noble Baroness respond to that point?

Baroness Scotland of Asthal

I absolutely understand why the noble Baroness would say that. She will know that we have created two new vehicles. In April of last year, the National Criminal Justice Board was created. That board brings together all the criminal justice agencies to try to look in a holistic way at the delivery of criminal justice. In addition, we created the local criminal justice boards, which mirror the agencies that sit at national level. Those local criminal justice boards will be charged with dealing with a number of issues for their area, so that we will see a more holistic response to their areas' needs. They will identify the needs of victims and witnesses in their area and look at the justice gap; namely, at how many offenders are brought to justice and who is doing what with whom.

In the past few months since April, we have been able to do something quite extraordinary. Whereas before, the criminal justice agencies had a tendency to work in silos, we now have a framework that interweaves the different responsibilities in a way that enables the response to local needs to be very different. It means that the new structure, together with the strategic partnerships in the local authority, the community legal service partnerships and the crime and disorder reduction partnerships, will provide a far better understanding of the local needs.

The framework and the standards will continue to be set because we aspire to a similar response right across the country. The noble Baroness will remember the work that we did in setting standards in relation to the Sentencing Guidelines Council. She should also bear in mind the work that we shall do, once we put the unified courts arrangements in place, and the hard work that we did together in relation to the Courts Bill. All those tools will be available for an area to craft something which better meets the needs of the people of that area.

Therefore, we shall not be abandoning standards and outcomes. We hope that, by doing this, we shall enhance the opportunity to raise the standards to a level where we can all feel a better sense of satisfaction that the coherence that we would like to see is being delivered.

3.45 p.m.

Baroness Anelay of St Johns

I am grateful to the noble Baroness because in her further answer she has given me more reassurance. Her continued use of the word "local" underlines what is important here. There had been concern that suddenly some form of regional organisation would impose its will on local areas. Therefore, I am grateful to the noble Baroness and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 67: Page 9, line 7, at end insert— "services" means protection, support or information and explanation about the progress of a case provided under the code to a victim of criminal conduct by persons appearing to the Secretary of State as having the functions mentioned in subsection (1);

The noble Baroness said: In moving Amendment No. 67, I shall speak also to Amendment No. 71A, albeit briefly, as I know that the Minister will speak to that at greater length, and Amendment No. 72.

I tabled the amendments as a consequence of the briefing that I mentioned from Victim Support. I am certainly grateful to that organisation for its advice. I am grateful, too, for the support for my amendments given by the noble Lord, Lord McNally, and the noble Baroness, Lady Thomas of Walliswood.

Victim Support makes the point that the rights of victims of crime are not listed as such in the Bill. It therefore suggested Amendment No. 67 to ensure that there is in the Bill a definition of "services" to which victims have a right.

In July 2003, the Government's strategy, A Better Deal for Victims and Witnesses, recognised that the majority of victims have needs outside the criminal justice system. In fact, Victim Support has calculated that only 3 per cent of victims go through the court process. An additional 1 per cent receive criminal injuries compensation—we shall certainly return to that on a later occasion when the Government "Christmas tree" the Bill. Therefore, Victim Support argues, everything in the draft code currently is only for those 4 per cent.

Many victims have other needs, such as those relating to health, housing insurance, financial, employment or education issues. The Government have said that they wish to take this further and that they want to improve matters in this area. In the Bill, they create the Commissioner for Victims and Witnesses, who is responsible for a range of departments beyond those dealing only with criminal justice. Therefore, Victim Support's hope is that, in future, the victims' code remit will be extended to those departments.

However, they want to ensure that everyone knows what kind of services should be involved. Therefore, Amendment No. 67 begins by clarifying what the services set out in the code should be—that is, protection, support or information and explanation about the progress of a case". I should add that, in further conversations, Victim Support made it clear that when it refers to "support", it should be taken to mean personal support and not financial support. The organisation has in mind, in particular, the services which it offers, and I believe that it is worth placing them on the record because it will flesh out what Victim Support considers "services" to comprise.

Victim Support states that it provides services in the following ways. It contacts people by letter, telephone or visit; it will arrange for a trained volunteer to see people in their home or wherever is more convenient; the volunteer will provide people with time—always a valuable commodity—and will listen while people confide their reaction to the crime; the volunteer will help to identify the help and support that will be best adapted for the use of a person's needs and expectations; and, if practical help is needed, Victim Support will try to arrange that. Above all, it will help people to obtain information, and it can arrange support at a court through the witness service. Therefore, the word "support" covers a broad range of services.

After I tabled that amendment and Amendment No. 72, I was very glad to see that the Government tabled Amendment No. 71A, which I welcome, as it appears to meet in almost every respect the point of my Amendment No. 72. The basis for my tabling that amendment was that Victim Support was concerned that, in future changes introduced by statutory instrument, someone—obviously not this Government or this Secretary of State, but perhaps someone in 100 years' time—might want to reduce the level of services rather than improve them. We were looking at the general objective of saying, "Whatever you do in future by statutory instrument, at least have an equivalent service or better". That appears to be what the Minister's amendment tries to do.

I contacted Victim Support to ask what it thought about Amendment No. 71A. It welcomed it, although it is still concerned about Amendment No. 67 and wants it pursued. With regard to the government amendment, it said, "Happy, but". Either today or before Report, Victim Support wants the Minister to consider and respond to it on "quality and extent", a phrase used in proposed new subsection (9)(a) in Amendment No. 71A about which it is concerned. It would like that to be replaced with "quality or extent", or to delete "or extent", because it understands that the extent of any revision is covered by proposed new subsection (9)(b), which talks about restricting people to whom the code applies.

Victim Support is even more cynical than me, or perhaps more worldly-wise, in that it says that it understands that the Government's intention is not that a future Secretary of State could misinterpret the clause and think that, if the quality of the code was changed but not the extent, or the extent was changed but not the quality, they might be able to squeak by with doing something heinous. We would never think that the case, of course, but I would be grateful for the Minister's explanation about why that phraseology is needed, and perhaps for her assurances that people more worldly-wise than me should not be so concerned about it. I beg to move.

Baroness Thomas of Walliswood

We were happy to support the amendment, very much on the grounds about which the noble Baroness, Lady Anelay, told us in her comprehensive introduction. I do not want to add much more. I understand very well both the Minister's amendment and the rather subtly expressed doubt that people might have about it. so I look forward very much to hearing what the Minister has to say on that.

I am sure that the Minister does not need me to, but I want to draw attention to the very wide range of provision that might come under "services". For example, Refuge points out in one of its submissions that there may be a need for public funding for some victims of domestic abuse because, when they leave their homes, they leave their sources of income. They may not be able to afford to pay for the refuge accommodation, even if it is available.

Other people have pointed out that there may be a need for refuges for men. That is a new concept but if we are covering the whole of crime, I obviously see how that might be important. Liberty felt that the Bill was a welcome first step, but that victims' rights should be firmly enshrined in statute. Does the Minister think that the Bill does that? I shall not go on, because she will have read all the briefs or had them gutted for her, and will know that many people are thinking about the issue of victim support and trying to contribute to debate on it.

Baroness Scotland of Asthal

I thank the noble Baronesses, Lady Thomas of Walliswood and Lady Anelay of St Johns, for their thanks for our amendment.

Amendment No. 67 would define the services that are delivered to the victims of crime by the agencies covered by the code. I listened carefully to what the noble Baroness said about the amendment. Although it is an attempt to clarify what a service may be, it may be too prescriptive. It does not embrace every type of service that could be provided. For instance, it does not cover the right to give personal information—currently done through a victim personal statement—nor will it provide sufficient flexibility when the code comes to be revised in the future. There is more opportunity to develop new and innovative services for victims, if we do not provide an over-prescriptive definition at the outset.

Noble Lords will know that I chair the Victims' Advisory Panel. We are examining carefully the broad range of support that may be provided for victims, which stands outside what would usually be encompassed within the criminal justice system. I take on board what was said by, I think, the noble Baroness, Lady Anelay of St Johns: only a limited number of victims comes through the criminal justice system.

I support the principle behind Amendment No. 72, which is why I have tabled Amendment No. 71A. I agree wholeheartedly that any future alterations to the code should not reduce the rights of victims and the quality of the services to which they are entitled. However, the wording of Amendment No. 72 would make it difficult to implement, as it effectively sets the problematic task of defining a reduction in the quality of services.

With the amendment that I tabled, it will be up to the Secretary of State to exercise his judgement as to whether revisions of the code reduce the services provided to victims. It also contains the safeguard in Amendment No. 72 against any restriction of the type of victim to whom the code would be applicable. By that, I mean that I would not wish victims of a specific crime—burglary, for example—to be affected by a future Secretary of State excluding them from the protection of the code. Of course, in deciding whether a revision of the code reduces services to victims, the Secretary of State will be bound by the usual public law principles. He will have to act reasonably and on proper evidence. I hope that that will be the case, even in 100 years' time.

Amendment No. 71A makes a valuable addition to the Bill. I do not believe that it is necessary or helpful to the objective of ensuring that victims receive premium care to provide a definition of services, as is proposed in Amendment No. 67.

The noble Baroness asked about phraseology. There are several complex arguments for why the phraseology that we have preferred is better. If the noble Baroness wants to have them, I will be happy to write to her and, indeed, to share that with the Committee. Bearing in mind that we have an aspiration to pull stumps at six, it might be better if she were to read it, rather than my reading it into the record.

Baroness Anelay of St Johns

I am happy for it to be part of a letter. As the matter was raised directly by Victim Support, I want to ensure that it is suitably satisfied. If it is, I shall take the matter no further. As an old soldier who has been through the "and/or" debate on more than one occasion, I know that, whether it is conjunctive or disjunctive, it can be construed in different ways on different occasions. I should be grateful for the Minister's explanation.

Otherwise, I accept that the drafting of the Minister's amendment, Amendment No. 71A, is superior to that of Amendment No. 72, for the reasons that she gave. I shall also consider carefully what she said about Amendment No. 67. As I indicated even after it was tabled, Victim Support noticed that the amendment did not quite convey the whole flavour of the issue that it wanted to be raised today. I shall discuss the noble Baroness's response with Victim Support to see whether it is necessary to return to the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 13 shall stand part of the Bill?

4 p.m.

Lord Campbell of Alloway

I support the opposition to Clause 13 standing part of the Bill. I also beg leave to support the opposition to Clauses 14 and 15 standing part of the Bill.

The three clauses are interdependent, howsoever amended. If one card—card 13, for example—is taken out of the pack, the whole pack collapses. I shall not, incidentally, move Amendment No. 74.

I speak for no grand organisation such as Victim Support or Refuge; in fact, I have had no correspondence with them. I speak out of a concern about the legal status of a code of practice. I support the motivation behind having a code. I support a code of good practice—I do not know whether the noble Baroness, Lady Scotland, intended to use it technically; probably not—which, of course, has no legal efficacy. I draw a fundamental distinction between that type of code and the type of code that is proposed which has legal efficacy.

On Second Reading, I took a general objection to these three clauses, really following in the footsteps of the noble Baroness, Lady Thomas of Walliswood, who approached the matter in a much more integrated way. Today one has to consider the status of the code that is proposed. The status is an amalgam of Clause 13 and Clause 15. Clause 14 is merely concerned with procedure.

One is always concerned with the status and legal efficacy of a code. One can only look to what is called the "trigger clause" in primary legislation. Here the trigger clause essentially is Clause 15, taken in context with Clause 13. The structure of the code proposed has, in effect, what is called "qualified legal efficacy", and it is in this context that I call attention to codes of practice. I refer to a Motion debated in your Lordships' House to call attention to codes of practice as affecting the incidence of legislation. I shall give your Lordships the reference, if I may, as it is fundamental to any intellectual approach to this problem. Copies are available in the Library and are printed out on request. The reference is Official Report, 15 January 1986, cols. 1075–1104. It is very apparent that the type of legal efficacy is the type of legal efficacy akin to that of the Highway Code, to which Lord Denning spoke at cols. 1078–09.

It was my Motion. I did not ask anyone to speak. Those who spoke were Lord Denning, Lord Elwyn-Jones—and I shall refer your Lordships very briefly to what he said about it in a moment to give a balance—the noble and learned Lord, Lord Cameron of Lochbroom, the noble Viscount, Lord Colville of Culross, Lord Henderson of Brompton, Lord Airedale, Lord Rochester and my noble friend Lord Renton. Therefore, this has some fundamental authority if one wants to try to understand what this is all about and what its effect is. I do not propose to bore the Committee with legalistic, esoteric submissions today. If Members of the Committee wish to know what was said, they can look for themselves. On Report I shall again not deal with technical legal things, but with its broad effect.

This code of practice relates only—if one looks at its construction—to the criminal justice system; that is dealt with under Clause 13(1) to (4). But the trigger clause renders it admissible in criminal and civil proceedings to determine any question. That is quite unlike the Highway Code position with which Lord Denning was dealing, because the trigger clause in that statute was not solely related to criminal affairs. Here one has a situation which, so far as I am aware, is without precedent.

It is worrying. The worry was well expressed by Lord Elwyn-Jones. He questioned the efficacy of codes compared with that of statutes and the authority of codes. He questioned the efficacy of remedies available to individual citizens and he took the view that reliance upon these codes was representative of a modern and unhealthy trend towards rules of indeterminate status. That is wonderful language, but it does convey the problems. If one wants to have something that has full legal effect, one should put it in a statute and not just in a code of indeterminate status.

Why do I support the opposition to Clause 13 standing part of the Bill? First, I object to the structured complexity of Clauses 13 to 15. It is not so readily acceptable for the reasons given on Second Reading. Secondly, the form in which this qualified legal efficacy is conferred is not so readily intelligible and there is no precedent.

Lastly and, perhaps, most importantly, I come back to the way in which the noble Baroness put her case. She used the word "code". I think that she said that it was a "code of practice". In effect, that is what I call a "code of guidance"; it is the same ilk of thing. It does not have legal efficacy. I believe that, in such a situation, it is appropriate that we should have what I call a code of guidance and what the noble Baroness rightly, if she so wishes, calls a code of practice and guidance—there is nothing between them. However, we should not create a form of legal efficacy or legal liability, if there is a breach that lands people in court. It is as simple as that.

It is for those reasons that I object to the three clauses. I hope that the Committee will forgive me for having addressed it on all of them at the same time.

Baroness Anelay of St Johns

I am grateful to my noble friend for raising the issue. It would be appropriate if I spoke to Amendment No. 73A at this stage. Having heard my noble friend's introduction, I think that it would test the patience of the Committee if I tried later to repeat some of his arguments inadequately. He put them so well.

My noble friend raised some of the concerns that I had and put them in the proper legal language. We welcome the idea of a code of practice, but we are concerned about the status of the code. My noble friend referred to a code of indeterminate legal status. He said that it appeared to have legal efficacy and was not just consultative. He also pointed out that Clause 15 referred to its application in civil and criminal proceedings, although Clause 13 appears to refer only to criminal application. When we considered the first part of the Bill, we talked about the blurring of civil and criminal procedures. I understand why the Government want the code of practice to apply to some civil cases, although one wonders whether it should apply to all.

I hope that that short introduction has given the noble Baroness time to look further forward to Amendment No. 73A and that we have not sprung it on her too quickly. When I read what my noble friend called the "trigger clause"—Clause 15—my concern was that, when we consider the effect of non-compliance on those who operate the code, subsection (2) is so vague that it would leave one wondering what it is, or it is so careful about directing what should happen that it worries me even more.

Subsection (2) states that, the code is admissible in evidence in criminal or civil proceedings and a court may take into account a failure to comply with the code in determining a question in the proceedings". For a department or a voluntary organisation, the ramifications of not following the code should be serious, but they should be serious for the operation of the organisation itself. Should they be serious for the outcome of a trial or a hearing of proceedings in a civil case? For example, what is meant in subsection (2) by "a question in the proceedings"? One could read subsection (2) as meaning that if Victim Support does not send out a letter at the right time on the right day in accordance with the good-practice guidance in the code and if that is then raised at a criminal trial, it could count towards the determination of a question in the proceedings. To use colloquial language, some would perhaps get off when others would not.

What kind of non-compliance are we talking about? What kind of effect will it have on proceedings? Could it be that the code is being raised, as my noble friend has suggested, to the same level as PACE guidance, where the roof falls in if one gets it wrong? What could be the implications of non-compliance under subsection (2)? As ever, my first recourse is to look at the Explanatory Notes. They describe subsection (1)—fine—but tell us nothing about subsection (2), which is the core of the issue.

My noble friend has raised the whole issue of the status of the code. I have taken that question down to the level of asking "what if?". If the code really is going to be like PACE, what happens if somebody gets it wrong? We could end up with a structural code that many would then find unacceptable.

4.15 p.m.

Baroness Scotland of Asthal

I have listened carefully to the concerns of the noble Lord, Lord Campbell of Alloway, and to the way they were expressed by the noble Baroness, Lady Anelay. I hope that I can clarify to the Committee why those very proper concerns may not be grounded in fact once there is a better understanding of the scheme that we have provided.

Clause 13 would require the Secretary of State to issue a code of practice that will be binding on the criminal justice organisations as well as on other organisations that deal with victims of crime named in it. Earlier in Committee, we discussed the difference between statutory agencies, which may be compelled, and voluntary agencies, which may not.

The code would raise the standard of the services that the victim should receive—for example, the provision of information within a specified time scale. We hope that it will also build considerably on the current victims' charter by creating clear and enforceable rights for all victims in the areas of information, advice, personal support and protection. We really want the code to set, at the very least, minimum consistent standards of service that victims can expect to receive wherever they live.

Clauses 13(2) and 13(4) allow victims of certain crimes or victims with specific characteristics to be treated differently under the code. I know that the noble Lord, Lord Campbell of Alloway, has already pointed to the complexity of it all. We have set the code out in that way because the needs of victims are also complex and we wish to ensure that the code addresses the needs of each species of victim. I do not mean that pejoratively. Each type of victim will be encompassed by the code.

Clause 13(6) ensures that it is not necessary for an offender to be charged or convicted before the victim is entitled to receive the services under the code. That leads me to the point raised by the noble Baroness, Lady Thomas: namely, that many victims, unfortunately, do not have the joy of seeing the perpetrator apprehended and dealt with, but still wish to take advantage of the services that they are entitled to receive or to expect by virtue of having been a victim.

The test for whether the code should apply in a particular case will therefore depend on a judgment, usually by a police officer, on the conduct which has been reported or about which a complaint has been made. Clause 13 is drafted to ensure the maximum flexibility for the types of services and organisations—the local structures covered by the code.

That is why we feel that the code is important, but we also understand—and we make it explicit in Clause 15—that if a service provider fails to perform a duty that is listed under the code, that failure does not make it liable to any legal proceedings. Our rationale is to eliminate the barrage of litigation that might ensue, thus overburdening the courts. We do not want to encourage the blame culture that has grown up in the criminal justice system. The prospect of being shamed in an ombudsman's report will be sufficient in most cases to ensure that the agencies take their obligations more seriously. Most instances of non-compliance will usually be due to an oversight rather than serious negligence or mischief. In those circumstances, we believe that reference to the ombudsman seems entirely proportionate and appropriate.

However, subsection (2), which has been alighted upon both by the noble Baroness, Lady Anelay, and the noble Lord, Lord Campbell of Alloway, provides for limited circumstances in which the code would be admissible in criminal or civil proceedings. For example, if a victim brought a claim under the Human Rights Act against one of the public authorities which were subject to the code, a breach might be used as evidence that the authority did not respect the victim's human rights or did not do what we could reasonably have expected it to do. It will not itself form a basis for a criminal or civil action but it could be given as evidence for the court to consider during the case.

Perhaps I may move directly to Amendment No. 73A. Of course, I understand that the noble Baroness. Lady Anelay, who is properly—I shall not say "instructed"—implored by a number of agencies—

Lord Campbell of Alloway

I am much obliged. I intervene in order to keep the argument in order before the Minister moves on from this point. The circumstances which the noble Baroness explained—I shall not repeat them—in relation to subsection (1) appear to me to make it far more appropriate to have a code without legal efficacy because it is fairer to the social workers, it is fairer to everyone, and its wholly indeterminate form of liability is reduced. I listened very carefully when the Minister formulated the circumstances. I agree with what she said. However, with respect, what I cannot agree with is that we should then have subsection (2). I shall sit down, but I thought I would make that point of issue.

Baroness Scotland of Asthal

The purpose of subsection (2) is to make it explicit that the code is to be used only in very limited circumstances in criminal or civil proceedings. It is an attempt to address the very concerns that the noble Lord has expressed. It would be possible to rely upon the act or the failure to act. An example would be non-compliance of the code brought in an industrial tribunal by an organisation which sought to argue that the dismissal of one of its employees was proper because repeated instances of breach of the code had been highlighted to that worker and the agency or the authority believed that the standards in the code were a reasonable expectation. That would not mean that that piece of evidence of itself would entitle someone to bring a claim, but it may be a piece of evidence on which a party may wish to rely.

Conversely, it may be relied upon by a worker who says, "I complied with the code in its entirety. There was nothing within the code that I did not do. I would like to pray that in aid to say that I was wrongly dismissed". It allows only that information and the code, which expresses a standard to which we hope that people will aspire, to be used in such cases. We consider it to be useful in that way.

We believe that to remove Clause 15(2), which provides that the victims' code of practice and breaches of it can be admitted in evidence in civil or criminal proceedings, would be most regrettable. To remove the clause would mean that the relevance of the code of practice in court proceedings would be ambiguous. It is on that basis that I resist the opposition to clause stand part. This clause is essential to ensure that the court can consider a person's actions under the code where relevant. That might include the example I have just given of the employment tribunal proceedings relating to a member of staff of one of the organisations covered by the code or a judicial review complaint against an agency regarding a breach of the victim's rights under the ECHR.

We believe that it would be proper in those circumstances for either party to seek to rely on the code as an indication of what would be an acceptable benchmark. We also believe that while, therefore, the person will not be legally liable if the Parliamentary Commissioner for Administration finds him in breach of the code, such breaches should be admissible as part of determining wider issues. We believe that the balance there is a proper balance.

Baroness Anelay of St Johns

It might be helpful for those advising the noble Baroness if I add some comments before we reach Report stage. Although she has tried very hard to reassure my noble friend and me, I am afraid that as yet she has not succeeded on Clause 15. I shall restrict myself to that clause and not say the same with regard to Clause 13.

Subsection (2) is drafted in such a way that instead of applying to limited circumstances, which is the Minister's intention, it appears to apply to a very wide range of circumstances. For example, it states that failure to comply with a code can be taken into account in determining a question in the proceedings. That could mean any civil or criminal proceedings. We do not know what the proceedings are. That might then be used to say that failure to comply with the code could be used in proving the guilt or innocence of a person or in testing the veracity of a witness.

The noble Baroness said that this will apply only in particular circumstances. She gave examples relating to employment tribunals and the Human Rights Act. Those are limited circumstances. However, as drafted, this subsection could affect every criminal trial that comes our way and every family proceeding that takes place. That worries me considerably.

I notice with regard to subsection (1) that the Minister said the Government were trying very carefully to avoid the blame culture. Who can blame them for that? Indeed, it is a responsible way forward that the Government are trying to seek. They are saying that they do not want the kind of system whereby someone can allege a breach and receive compensation; it should be sufficient that the matter is able to be referred to the commissioner. I agree entirely with that. However, it seems that by closing the door on the blame culture and getting financial compensation, they are opening it wide—unintentionally, I am sure—in subsection (2) to a different kind of blame culture, where someone's veracity may, indeed, be tested in a way that it should not be because of a breach of the code.

Baroness Scotland of Asthal

I understand the anxiety expressed by the noble Baroness. However, we have to consider what the code will do and who it is for when we talk of criminal proceedings.

During the argument the noble Baroness asked whether the code would be used in the same way as PACE, which means that everything would come to a halt. As she will know, the reason that PACE is so important is that it deals with the way in which defendants are treated. The relevance of the criminal trial is whether defendants will be justly dealt with in court and then have their liberty denied them. A very dramatic consequence flows from the breach of PACE. I do not suggest that what I say is in any way pejorative to victims, but victims are in a very different situation. Their liberty in criminal proceedings tends not to be at stake, but how they are treated may still be of importance.

So, the measure will not have an impact similar to PACE of bringing everything to an end but it is a question of balance. It will be important to remember that balance, as the lay and professional judge will, in terms of admissibility, non-admissibility and weight. If there is information in relation to the code that is important, it is allowed to be admitted. But it will not, and cannot, have the kind of consequences that would flow from PACE because, of course, PACE is specifically crafted as a shield to protect defendants from various forms of unfair practices that would result in their rights under the Human Rights Act, and in accordance with the ECHR, not being met.

I understand the noble Baroness's anxieties but we do not think that they are well founded. We believe that there is a proper role to play in relation to the code. We are trying to raise the bench-mark and the water mark—I know that the noble Baroness agrees with this—regarding how victims are treated. We are trying to emphasise to all agencies that victims have to be treated with propriety and responded to with care and consideration. That is the framework of the code. It is very different from PACE.

4.30 p.m.

Baroness Anelay of St Johns

I accept entirely what the Minister said with regard to her perception of the difference between the impact of PACE and the impact of the code. Where I differ is that I believe there is an impact upon people who will find themselves subject to the provisions of subsection (2) of Clause 15. People could find that their liberty is at stake. I give two examples: one at micro level and one at macro level.

On a micro level, we are dealing with a Bill in which the first part—in Clauses 4 and 5—concerns the position where someone who is a victim of domestic violence may find themselves wrapped up in a situation in which they subsequently become a defendant. One could find oneself a defendant in a trial as a result of the provisions of Clauses 4 and 5 when one has also received the support services of, for example, Victim Support or another criminal justice agency. The idea may arise that there could have been a breach in the services that that person received and they could then use that to their advantage in their own trial. They may say, "I did not get the proper service that I should have received. I was not advised that I could do this, that or the other".

I give an example on a macro level. I refer to the open-ended drafting of subsection (2). Nothing in subsection (2) states that the measure is confined only to people who are the victims in proceedings. Even if it were, I still ask the following question: does subsection (2) mean that the court could come to a different decision about a person's veracity just because they were the victim of a breach in the code? For example, a person may have sought assistance from Victim Support, but, wholly atypically—I am sure that this would never happen with Victim Support—they were given the wrong advice or not given the proper befriending assistance and therefore were too terrified to give the right information at the right time. Could they say later, "It was not really like that at all. I said that because Victim Support"—or any other agency—"said it was the best thing to do at the time"?

What I am trying to get at, in a rather convoluted way, is that I consider that Clause 15(2) leaves open the fact that someone could say that there was a breach of the operation of the victims' code and that the court ought to take that into account either in their favour or in someone else's disfavour. Whereas I wholly support the narrow interpretation which the Minister put upon subsection (2) in her opening remarks, I remain concerned about the wider implications. I shall have to consider the matter further between now and Report.

Baroness Scotland of Asthal

I understand why the noble Baroness is worried. However, I do not think that that worry is justified. I am happy to write to the noble Baroness now that I have a clear understanding of her concerns. I really do not think that they are merited but I am happy to write to the noble Baroness as fully as I can setting out why we believe that what she mentioned will not happen and how the provision will operate. I shall copy that letter to any other noble Lord who would like to receive it. Of course, the noble Baroness will consider that response before she returns to the matter on a subsequent occasion. I hope that I shall be able to reassure her.

Baroness Anelay of St Johns

I am very grateful to the noble Baroness.

Clause 13 agreed to.

Clause 14 [Procedure]:

Baroness Anelay of St Johns moved Amendment No. 68: Page 9, line 14. leave out from "and" to "the" in line 15.

The noble Baroness said: The amendments fall into two subsets. In moving Amendment No. 68, I shall speak also to the first group, which comprises this amendment and Amendments Nos. 70, 75, 77, 81, 82, 85, 86, 89, 93, 96 and 97. The group leaves out all references to the Secretary of State for Constitutional Affairs so that I can probe the Government's intention about their reference to that person. Which Secretary of State is intended to have this authority now and in the future? Of course the Minister could see this one coming a mile off. Are there plans for the Secretary of State for Constitutional Affairs to take over the Home Secretary's job altogether—goodbye, Mr Blunkett—or is it perhaps that they are just taking over the future running of this victim's charter system?

Professor Pahl, who is professor of social policy in the University of Kent, brought to my attention that it is not clear where the commissioner is to be located within government, although my amendments suggest that he should be within the office of the Lord Chancellor. Wherever the commissioner is located, Professor Pahl points out that it should be made clear that this is very much an issue in which cross-departmental working will be essential. That is absolutely right. She says that domestic violence needs to be addressed not only by the Lord Chancellor's Department and the Home Office, but by the Department of Health for both medical and social care, the Treasury in its responsibility for social security payments, and the Office of the Deputy Prime Minister in its responsibility for housing and homelessness and for joined-up working at local authority level.

I turn to the second sub-group, which consists of Amendments Nos. 69, 71, 76, 78, 82, 84, 86, 88,90, 94, 97 and 99. They were tabled as a consequence of the concession made by the Government during the course of the Justice (Northern Ireland) Bill. Following the very good practice of my noble friend Lord Campbell of Alloway, I shall merely direct noble Lords to the column reference and not read out the whole extract. It is in Hansard for 15 January 2004 at col. 683.

The basis of this issue was that my noble friend Lord Kingsland, in moving Amendment No. 1, sought to strike out "Secretary of State" and insert "Lord Chancellor". The second subset of amendments does the same to make sure that the Lord Chancellor is there. As we understand the situation, we still have a Lord Chancellor, not a Secretary of State for Constitutional Affairs. The noble Baroness is going to say that there are both, but legislation should reflect what is legally the current situation rather than pre-empting the decision of Parliament. We have not yet accepted that the Lord Chancellor should be consigned to the blue yonder. My amendments would impose that the Lord Chancellor should have these functions. I beg to move.

Lord Borrie

I had this odd query in my mind as the noble Baroness was speaking, because I have read the list of Cabinet Ministers several times over the past few months. My noble and learned friend Lord Falconer is described on the list as Secretary of State for Constitutional Affairs and Lord Chancellor. I know of course that the noble Baroness is right that the office of Lord Chancellor, which exists at the present time, is, as it were, down for abolition under the terms of a White Paper. That is to be discussed in due course—there will be a Bill and so n—and I understand the point about pre-emption.

I have a query about the Bill. I have to say to the Minister that I do not understand this part and that I do not think the Explanatory Notes make the issue clear. Legislation usually simply states, "the Secretary of State" and as the years go by and the functions of different departments switch from one to another and change and so on, that is very helpful, because it has not been too narrowly defined. Yet here there are some clauses which state that the Secretary of State shall do something, whereas other clauses mention—for example, Clause 14, the one with which we are dealing—the Secretary of State for Constitutional Affairs. I should be glad of an explanation for that.

Baroness Anelay of St Johns

Before the noble Baroness replies, perhaps I may respond to the noble Lord, Lord Borrie. I noticed in the Government's list when they introduced the post of Secretary of State for Constitutional Affairs, they also bumped him—not on the next flight but certainly he is bottom rung now instead of being near to the top. The noble and learned Lord, Lord Falconer, is now perhaps running along the back of the train. I am sure that he would do that with grace.

The noble Lord, Lord Borrie, raises an important point. The drafting in the Bill is very convoluted to try to drag in somehow the Secretary of State for Constitutional Affairs when it is not clear which Minister will be doing what at which time. I preferred the elegance of stating clearly that it should be the Lord Chancellor, which, as the noble Lord, Lord Borrie, will know, unlike other Secretaries of State, is the one Secretary of State whose name is put clearly into legislation.

Baroness Scotland of Asthal

That is the best entertainment so far today. As has been made plain by my noble friend, I remind the noble Baroness that the noble and learned Lord, Lord Falconer of Thoroton, is in the happy position of wearing both hats with equal elegance. The thought of the noble and learned Lord running along the back of the train, even in his now sylph-like form, is one that I shall keep with me.

I shall put the groups of amendments shortly so that the noble Baroness is clear which ones I shall resist and which ones I shall accept. I intend to resist Amendments Nos 68, 70, 75, 77, 81, 83, 85, 87, 89, 93, 96 and 98. I hope I shall cause the noble Baroness delight by saying that I intend to accept Amendments Nos. 69, 71, 76, 78, 82, 84, 86, 88, 90, 94, 97 and 99. I thought I would get the pleasure out quickly.

Responsibility for victims and witnesses within Government falls jointly to all three criminal justice Ministers: the Home Secretary, the Attorney-General and the Lord Chancellor, or Secretary of State for Constitutional Affairs as he is otherwise known. That is why we have made it a requirement on the face of the legislation that all three Ministers are involved in matters such as the appointment and removal of the Commissioner for Victims and Witnesses, the members of the victims' advisory panel and the terms of the victims' code of practice. We are departing from the usual practice, rightly alluded to by my noble friend Lord Borrie, of simply referring to the Secretary of State. Earlier in Committee I spoke of the attempts we are now making to bring the criminal justice system together in a way that would make a proper, joined-up integrated response to the difficulties with which we are now faced.

It is intended that all three Ministers should be involved in the decision and appointment in relation to this post. We also agree, as indicated by the noble Baroness, Lady Anelay, that lots of departments have an interest in the work of the commissioner. That is why the list of authorities in Schedule 3 is so long. It would be unwieldy for them all to have a hand in appointing the commissioner.

Referring to a named Secretary of State on the face of the legislation is not usual practice. It creates lots of extra work dealing with references in the event of the machinery of government changes, on which we have already touched. That caused some difficulty in dealing with the creation of the office of the Secretary of State for Constitutional Affairs as there are a great deal of references to the Lord Chancellor on the statute book and in many cases it is unavoidable to refer specifically to the Secretary of State for Constitutional Affairs. If we avoid referring to the Home Secretary as well as the Secretary of State for Constitutional Affairs on the face of the Bill, the only suitable terminology is to add the clarification "if the Secretary of State is not the Secretary of State for Constitutional Affairs". I therefore resist the amendment that I have indicated I shall resist.

I am willing, as I have indicated, to accept the other amendments which replace references to the Secretary of State for Constitutional Affairs with references to the Lord Chancellor. For the time being, with the long-term fate of the office of the Lord Chancellor being considered elsewhere, this seems to be the most suitable drafting solution and will not pre-empt constitutional reform. It is also consistent with the decisions taken on other legislation currently before the House.

I hope that my right honourable friend the Home Secretary does not have occasion to read the Hansard report of this debate as I think it might be very bad for his heart.

4.45 p.m.

Baroness Anelay of St Johns

I am grateful to the Minister. I accept entirely her arguments with regard to my first group of amendments, which she has discarded. I am grateful to her for accepting the second—it shows an intellectual consistency. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 69: Page 9, line 14, leave out from "and" to end of line 15 and insert "the Lord Chancellor

On Question, amendment agreed to.

[Amendment No. 70 not moved.]

Baroness Anelay of St Johns moved Amendment No. 71: Page 9, line 21, leave out from "and" to "any" in line 23 and insert "the Lord Chancellor

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 71A: Page 9, line 33, at end insert— (9) But the Secretary of State may revise a code under subsection (8) only if it appears to him that the proposed revisions would not result in—

1. (a) a significant reduction in the quality and extent of the services to be provided under the code, or
GC 433
2. (b) a significant restriction in the description of persons to whom services are to be provided under the code."

On Question, amendment agreed to.

[Amendment No. 72 not moved]

Clause 14 agreed to.

Clause 15 [Effect of non-compliance]:

[Amendments Nos. 73, 73A and 74 not moved.]

Clause 15 agreed to.

Clause 16 agreed to.

Schedule 1 [Investigations by Parliamentary Commissioner]:

Baroness Walmsley moved Amendment No. 74A: Page 18, line 3, at end insert— ( ) In such circumstances the person to whom the complaint relates is accountable to the Commissioner for Victims and Witnesses pursuant to section 18(1) of the Domestic Violence, Crime and Victims Act 2004.

The noble Baroness said: In moving Amendment No. 74A, I shall speak also to Amendment No. 88A, which is grouped with it.

These two amendments would strengthen the powers of the Commissioner for Victims and Witnesses because there is some disquiet in a number of quarters, including Victim Support, that the powers are not great enough. The amendments would ensure that he or she can enforce his or her recommendations and that those agencies which fail to implement changes recommended by the Parliamentary Commissioner are accountable to the Commissioner for Victims and Witnesses.

With regard to Amendment No. 74A, Victim Support is concerned that the Parliamentary Commissioner for Administration lacks the power to enforce his reports. The Bill provides for the following system: if a victim does not receive a service, he or she is entitled under the code to complain to the Parliamentary Commissioner. He or she can then produce the report, which includes what the person who failed to provide the service should do to remedy this situation. It could be to give an apology to the victim, to develop a procedure to ensure that other victims receive the service they should in the future or that others do not become victims in the future. If the person complained of fails to remedy the situation, the Parliamentary Commissioner can lay a report before each House of Parliament, and that is the end of the matter. It may be very embarrassing, but it is the end of the matter.

The amendment provides one further stage to benefit either the specific victim or potential future victims. The Commissioner for Victims and Witnesses would be able to recommend or direct—those are the crucial words—that the person who has failed to remedy the situation in accordance with the Parliamentary Commissioner's recommendation must do so. This gives the commissioner real teeth.

We need to learn from the operation of the commissioners we already have. For example, there is a much higher level of satisfaction with the powers of the Children's Commissioner in Northern Ireland than with those of the Children's Commissioner in Wales. We need to learn from the operation of these commissioners.

With regard to Amendment No. 88A, for the Commissioner to be effective, Victim Support believes that this post should have the power to require government departments to have pro-victim and witness policies and procedures. We are concerned that the Commissioner's role as laid out in the Bill is very limited and needs to be enhanced. The role would have greater benefits if the Commissioner were able to give directions to an authority within his or her remit as well as being able to make recommendations.

An additional benefit of the amendment is that, as well as engaging with policies and procedures that already exist, the commissioner would also have the power to require departments to develop new policies and procedures where none have previously existed. Together, these two amendments would considerably and significantly improve the powers of the commissioner so that he or she could do the job which he or she has been put in place to do much better and more effectively. I beg to move.

Baroness Scotland of Asthal

Having been so accommodating in the last batch of amendments, I must say that it almost gives me pain to say to the noble Baroness that I shall strongly resist these amendments. It would be wholly wrong for the Commissioner for Victims and Witnesses to be able to direct other authorities and the Government as to the actions that they will take, not least because these directions may incur significant cost or be contrary to other policies and interests.

For example, the commissioner may direct the Department of Health to provide a fast-track counselling service for victims of serious crime, which could affect resources and have an impact on other service users who may have similarly pressing needs. It is envisaged that the recommendations of the Commissioner for Victims and Witnesses and the report of the Parliamentary Commissioner will be taken seriously by the Government and the criminal justice agencies. The opportunity to name and shame is a very strong sanction.

At the same time, it is important also for Ministers and independent statutory authorities to have the right to choose not to accept a particular recommendation because of the wider implications which the commissioner may not have taken into account. For those reasons, I have to resist the amendments.

As I listened to the noble Baroness expounding the virtues of the enhanced role of the commissioner, I was tempted to say that if anyone were to so create such a post, a number of people might apply very quickly indeed.

Baroness Walmsley

I thank the Minister for explaining why she will resist both the amendments. The concern of Victim Support is to ensure that the post of commissioner, when created, is taken seriously. It is significant and greatly welcomed that the Minister has said exactly that. I shall read carefully her words in Hansard. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

Clause 17 [Commissioner for Victims and Witnesses]:

[Amendment No. 75 not moved.]

Baroness Anelay of St Johns moved Amendment No. 76: Page 10, line 10, leave out from "and" to "as" in line 11 and insert "the Lord Chancellor

On Question, amendment agreed to.

Clause 17, as amended, agreed to.

Schedule 2 [Commissioner for Victims and Witnesses]:

[Amendment No. 77 not moved.]

Baroness Anelay of St Johns moved Amendment No. 78: Page 18, line 23, leave out from "and" to "as" in line 25 and insert "the Lord Chancellor

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 78A: Page 18, line 36, at beginning insert "Subject to sub-paragraph (3A),

The noble Baroness said: Perhaps your Lordships will give me a moment. I was taken away with the pleasure of assenting to everything.

I have tabled Amendments Nos. 78A and 79A because they make it clearer that the commissioner can serve for only 10 years in total. I know that the purpose of Amendment No. 79, which is to follow, is to impose a maximum 10-year limit on the tenure which the Commissioner or the Deputy Commissioner for Victims and Witnesses can serve in post. We think that Amendments Nos. 78A and 79A make it clearer that the commissioner can serve for only 10 years in total. The clock, therefore, is not switched back to zero should there happen to be a break in an individual commissioner's year of service. I beg to move.

Baroness Anelay of St Johns

I shall invite the noble Baroness to speak also to Amendment No. 80A. I have suggested that we should group together government Amendments Nos. 78A, 79A and 80A with my Amendments Nos. 79 and 80 because they all have the same aim of ensuring good governance. One's objective is always to set up the administrative system in the best way possible.

I note from the letter that the Minister kindly wrote me before today explaining the Government's objectives in these amendments that they were adopting good practice from disability legislation. I had simply pinched the wording from the Office of Communications Act 2002, to which I had proposed my own good governance clause. The noble Lord, Lord McIntosh of Haringey, came back, as the Government usually do, with a redrafted clause, saying that that was better, and I agreed entirely with him. Therefore, it would have been very churlish if I had not used his precise words, which I did. However, I am perfectly happy to accept the noble Baroness's amendments.

I have a question with regard to the drafting of one part of her amendment. In Amendment No. 80A, the proposed new subsection (b) would mean that the commissioner can be removed if he or she "is otherwise" unable or unfit to carry out his functions. Do the Government intend that to cover subsection (c) of my Amendment No. 80, in which I try to disqualify someone who has been "guilty of misbehaviour"? Does the Minister accept that if one is guilty of misbehaviour, that makes one unfit or unable—unfit in this case? I think the noble Baroness is nodding her assent. I accept that as a reassurance and put on record my gratitude to the Government for tabling their amendments.

Baroness Scotland of Asthal

I should have dealt also with Amendment No. 80A. The noble Baroness is quite right; we have sought in Amendment No. 80A to deal with her Amendment No. 80. I am grateful for her indication that she accepts it. We felt that the current terms as drafted, which state in paragraph 2(5) of Schedule 2 that the Secretary of State, may at any time remove the person from office if he is satisfied that the person is unable or unfit to carry out his functions could be suitably broad enough to cover all these scenarios. However, I am grateful to the noble Baroness and others for their suggested amendments. We agree in principle that it adds clarity, and that is why I tabled Amendment No. 80A, to which I hope the noble Baroness, whom I see nodding, will agree. It is in line with similar legislation passed by this House in the Disability Rights Commission Act 1999, as the noble Baroness indicated. It will provide for more certainty regarding the reasons for which the commissioner or deputy commissioner may be removed. I add to the nod that I gave the noble Baroness regarding her comment: we cover subsection (c) of her Amendment No. 80 within the ambit of our Amendment No. 80A.

5 p.m.

Lord Borrie

I apologise for intervening after the Minister has spoken, but I should like some clarity or reassurance. I rather like the tenor of Amendment No. 80 in the name of the noble Baroness, Lady Anelay, particularly because of subsection (c), which says, has been guilty of misbehaviour". I like that because there is a very long-standing tradition going back to legislation passed a long time ago when chairmen of tribunals, circuit judges, and so on, could be dismissed by the Lord Chancellor for "incapacity or misbehaviour". Because that has been with us for so many years, I think the meaning is clear and understood. So I was not terribly keen on the original words in the Bill on line 40 of page 18, stating that a person may be removed from office if that person is, unable or unfit to carry out his functions". The Minister has explained, especially in relation to the noble Baroness's amendment, that "unfit" would include misbehaviour. I am not sure that it is such a clear word; I do not know that I want to push this before Report in terms of whether the wording is sufficiently clear. But I would at least be glad of reassurance, on the record, that "misbehaviour" is meant to be included.

Lord Mayhew of Twysden

May I add a tiny contribution? The criterion goes back, as the noble Lord, Lord Borrie, said, over very many years to the days when most of these things were written in Latin. The Latin words were quamdiu se bene gesserit, which means "as long as he behaves himself". When something is so steeped in tradition and customary use, it seems a pity to depart from it. That sometimes suggests that you meant something different, which I do not think the Government do.

Baroness Scotland of Asthal

I hope I have made it clear to my noble friend and to the noble and learned Lord, Lord Mayhew, that we intend to encompass misbehaviour within our new draft. It is right that we have moved a little further on in terms of how we express things. There is a consistency now in the Disability Rights Commission Act and in this legislation. In terms of the way in which the courts will define it, I have said explicitly that it will include misbehaviour, so that old case law can be prayed in aid. I believe that something similar was said—not, thankfully, by me—when we were discussing the disability legislation. I hope that that gives my noble friend some comfort and satisfies the noble and learned Lord, Lord Mayhew, although I absolutely accept that the language does not have the attraction that it would have had in antiquity.

Lord Clinton-Davis

It just goes to show, does it not, that the Bar is very outdated. Both my noble friend and the noble and learned Lord are members of the Bar. I think that those of us here are firmly in favour of the change.

Baroness Anelay of St Johns

Just to be pedantic, perhaps I should make it clear that in accepting the noble Baroness's assurance that "unfit" includes misbehaviour, I shall try to keep my eye on it in future in governance clauses. Although the noble Baroness prayed in aid the 1999 Act in her drafting, I prayed in aid a more modern one. I should have thought that a Labour Government were so keen on modernisation that they might have kept the modern word "misbehaviour".

In all seriousness, I accept the Minister's assurances, but we need to bear this in mind in the future.

On Question, amendment agreed to.

[Amendment No. 79 not moved.]

Baroness Scotland of Asthal moved Amendment No. 79A: Page 18, line 36, at end insert— (3A) The person must not hold office for more than 10 years in total.

On Question, amendment agreed to.

[Amendment No. 80 not moved.]

Baroness Scotland of Asthal moved Amendment No. 80A: Page 18. line 40, leave out "is" and insert "—

1. (a) has become bankrupt, has had his estate sequestrated or has made a composition or arrangement with, or granted a trust deed for, his creditors, or
2. (b) is otherwise"

On Question, amendment agreed to.

[Amendment No. 81 not moved.]

Baroness Anelay of St Johns moved Amendment No. 82: Page 19, line 1, leave out from "and" to "before" in line 3 and insert "the Lord Chancellor

On Question, amendment agreed to.

[Amendment No. 83 not moved.]

Baroness Anelay of St Johns moved Amendment No. 84: Page 19, line 7, leave out from beginning to end of line 8 and insert "the Lord Chancellor

On Question, amendment agreed to.

[Amendment No. 85 not moved.]

Baroness Anelay of St Johns moved Amendment No. 86: Page 20, line 20, leave out from "and" to "in" in line 22 and insert "the Lord Chancellor

On Question, amendment agreed to.

[Amendment No. 87 not moved.]

Baroness Anelay of St Johns moved Amendment No. 88: Page 20, line 39. leave out sub-paragraph (c) and insert— (c) the Lord Chancellor

On Question, amendment agreed to.

Schedule 2, as amended, agreed to.

Clause 18 [General functions of Commissioner]:

[Amendments Nos. 88A and 89 not moved.]

Baroness Anelay of St Johns moved Amendment No. 90: Page 10, line 40, leave out from "and" to end of line 2 on page 11 and insert "the Lord Chancellor

On Question, amendment agreed to.

On Question, Whether Clause 18 shall stand part of the Bill?

Baroness Anelay of St Johns

I gave notice that Clause 18 is one of the very few clauses on which I intend to speak on clause stand part. This is a short matter, but one of importance. This issue has been brought to my attention by the Solicitors Family Law Association. As we have just heard how marvellous solicitors are, I am sure that this will please the noble Lord, Lord Clinton-Davis.

The Solicitors Family Law Association points out that it welcomes the introduction of a new independent Commissioner for Victims and Witnesses as part of the Government's commitment to tackling domestic violence. However, that association would like greater attention in Clause 18 to be focused on the victims of domestic violence. It would like to have seen a new subsection in Clause 18 stating that particular regard should be paid to the sufferers of domestic violence and their children and that there should be an onus on the commissioner to liaise with the independent Children's Commissioner regarding the need for children who may themselves be witnesses or victims.

Have the Government considered that as part of the focus of Clause 18 and, if so, why have they rejected it? If it has not yet been considered, will they consider it in future? I do not oppose the Question whether Clause 18 stand part, but I want to raise an issue on its content.

Baroness Scotland of Asthal

The victims of domestic violence are extremely important. They represent at least 25 per cent of all victims of violent crime. Necessarily, they will form a significant body of victims for whom the commissioner would have to take responsibility.

I appreciate what the Solicitors Family Law Association says in relation to domestic violence. However, our thinking was that the commissioner for victims should be responsible for all victims of crime. The noble Baroness will know that a great deal of sensitivity is involved. There are those who suffer bereavement, whether as a result of murder, road traffic accidents or otherwise. There is a feeling that we should treat all forms of victims to a similar high standard. It would be very difficult to justify putting in a section which highlights the needs of domestic violence victims and does not similarly underline the needs of the other victims, who may suffer severely as a result.

I raise, for example, the subject of children who are victims of sexual abuse. It would be difficult to say that we had a separate section for domestic violence but did not have one for children who may have been lovingly reared within their family but were sexually abused outside it by a stranger. However, I give an absolute assurance that the Government see domestic violence as a hugely important issue. We expect it to be one of the significant areas in which the commissioner would be obliged to work because there is such a large volume of victims of such violence.

Baroness Thomas of Walliswood

Perhaps I may intervene before the noble Baroness, Lady Anelay, says whatever she intends to say in response to the Minister. I believe that this matter goes back to a point that I raised earlier. Some of the people who have approached us would like greater emphasis to be placed on domestic violence and on the statutory right of victims to obtain assistance. The noble Baroness dealt with a large number of different issues, but she did not deal with that particular point.

If we were to follow the line put forward by the noble Baroness, Lady Anelay, we would place another little piece into the construction that we are making for victims of domestic violence. Those victims are in a special category, in the sense that they are very much under the power of their oppressor or the perpetrator of the crime. There is a strong view outside this Chamber that, although the Bill is welcomed, it does not go far enough, and this may be a way of helping to dispel that disappointment.

Baroness Scotland of Asthal

I understand what the noble Baroness, Lady Thomas, says in relation to the expectation. I simply remind the Committee that there is the interdepartmental ministerial group on domestic violence. A large part of that group's work is to make a holistic, multi-disciplinary response to the needs of domestic violence victims. As I have already mentioned, there is also the Victims' Advisory Panel, which I chair and to which we shall come later.

Those bodies are trying to drive forward the understanding that this is a multi-faceted issue that deserves the attention of a number of different parts of government. Those involved are the Office of the Deputy Prime Minister, which is seized with housing, the Department of Health and the Department for Work and Pensions. I refer also to the Department for Constitutional Affairs in relation to the courts, the Crown Prosecution Service and, therefore, the Attorney-General in terms of imposing lenient and other sentences, and, of course, the broader role played by probation officers, police and the non-governmental agencies and charities. Therefore, this is a huge endeavour.

The point of establishing a commissioner is that he will, we hope, raise the standard for victims generally and be an external, additional independent voice in bringing home these issues. I absolutely understand what the noble Baroness says about the expectation. I simply say that there are also expectations in relation to other victims whose circumstances go a little broader than domestic violence.

However, I want to reassure the noble Baroness that domestic violence victims are very much in the eye of the criminal justice system because they account for a disproportionately large number of the victims with whom we all, rather tragically, have to deal.

5.15 p.m.

Baroness Anelay of St Johns

I am grateful to the Minister for her further response. When I told the solicitors that I would raise this issue under Clause 18 stand part, I felt that I would have a bit of a cheek doing so in front of the noble Baroness, Lady Thomas of Walliswood. I am immediately using the term "domestic violence", a definition of which she earlier tried to get us to agree to. We are not there yet, so I appreciate that.

I also understand what the Minister said with regard to not wanting to single out a particular category of persons. The difficulty is that, because the first part of the Bill states that it is about domestic violence and because the Bill has been presented publicly as a domestic violence Bill, organisations are naturally looking to focus on that. However, I still think that there will be pressure from outside to find some other way to focus attention on the 25 per cent of those who suffer as victims.

I may need to come back to the matter in a slightly different way with an amendment, but I would obviously seek advice from the Solicitors' Family Law Association before I did so. I shall go no further on Clause 18 stand part, as the Chairman will be pleased to hear.

Clause 18, as amended, agreed to.

Clauses 19 and 20 agreed to.

Clause 21 ["Victims" and "witnesses"]:

Baroness Anelay of St Johns moved Amendment No. 91: Page 11, line 24, at end insert "committed in England, Wales, Scotland or Northern Ireland

The noble Baroness said: Clause 21 gives details of who is a victim and who is a witness for the purposes of the legislation, and who exactly will thereby benefit from the operation of the code. My amendment probes the question of its territorial extent. I know that the Minister has tabled later amendments with regard to territoriality; she kindly wrote an explanatory letter to us on that.

With this amendment I am asking a specific question with regard to the position of those who come to this country seeking asylum. I asked some similar questions earlier on behalf of Southall Black Sisters, and this is a similar amendment. Will they have protection under the victims' code while they are in this country awaiting determination of the claim? The Minister addressed the question of a territorial extent in her letter of 30 January. She says that the provisions do not extend to Scotland or Northern Ireland, as I understand it. Will she tell us what the situation will be in Scotland? Will similar provisions be made there with regard to the victims' code? Does she have any advance information on that? I beg to move.

Baroness Scotland of Asthal

Of course, the issues are devolved in relation to Scotland. The amendment would restrict the definition of a victim under Clause 21(2) to those who had been the victim of crime in the UK. However, by virtue of Clause 30, the powers of the Commissioner for Victims and Witnesses are restricted to making recommendations on agencies under his remit, and reporting only to Ministers with responsibility for England and Wales. The commissioner will not make recommendations on issues solely facing victims in Scotland or Northern Ireland due to the nature of their distinct criminal justice systems, and the plan is that he will consult devolved administrations on any recommendations regarding cross-border authorities.

The commissioner, it is envisaged, will principally consider persons who have been the victims of crime in England and Wales. However, the Foreign and Commonwealth Office is also within the commissioner's remit, and it has always been the intention that he or she will be able to investigate some issues relating to persons victimised abroad. For example, the commissioner may want to investigate crimes committed against holidaymakers, the treatment of victims of terrorism or those bereaved by violent crime overseas. He may want to be able to make relevant recommendations to the Foreign and Commonwealth Office about how it can help improve the experience of victims and witnesses. Noble Lords will know that it has extensive responsibilities under its consular banner and in terms of the consular support services it provides. I hope that better explains our position.

Baroness Anelay of St Johns

I thank the Minister. She mentioned holidays. There could also be a situation where a family can be on holiday, be a victim of a crime committed by somebody within their group and come back here. As I understood the Minister, she said that although the offence had been committed overseas, once the people had returned to this country, they could then be given the protection of the code. Is that correct?

Baroness Scotland of Asthal

The FCO gives advice and assistance to British citizens overseas. As the FCO will come within the ambit of the victims' commissioner, it would be perfectly proper for him, in reviewing the kind of advice, provision and support given to our citizens when abroad, to say to the FCO that he would recommend, in relation to A, B or C, that it should consider addressing the provision of services in that way. In that way, the code could be very useful in making sure that the provisions we make for our citizens abroad are as robust as we would like them to be. I want to give notice of this matter to my noble friend Lady Symons. I know that she will be very exercised by the issue, because she is the Minister responsible for consular services.

Baroness Anelay of St Johns

I am grateful to the Minister. She will understand, with various football competitions coming up, that I am concerned particularly about the issue of violence among the people who call themselves football supporters when they go abroad, but are anything but. I thank the Minister for her explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 agreed to.

Clause 22 [Authorities within Commissioner's remit]:

[Amendments Nos. 92 and 93 not moved.]

Baroness Anelay of St Johns moved Amendment No. 94: Page 12, line 15, leave out from "and" to end of line 17 and insert "the Lord Chancellor

On Question, amendment agreed to.

Clause 22, as amended, agreed to.

Schedule 3 agreed to.

Clause 23 [Disclosure of information]:

[Amendments Nos. 95 and 96 not moved.]

Baroness Anelay of St Johns moved Amendment No. 97: Page 13, line 2, leave out from "and" to end of line 4 and insert "the Lord Chancellor

On Question, amendment agreed to.

Lord McNally moved Amendment No. 97A: Page 13, line 7. leave out subsection (8) and insert—

1. "(8) Nothing in this section authorises the making of a disclosure which contravenes the Data Protection Act 1998 (c. 29).
2. (8A) Notwithstanding subsection (8), any disclosure or processing of information under subsection (1) for the purposes set out in subsection (2) in performance of functions referred to in section 13 shall be deemed to be necessary to be processed for the exercise of any such functions for the purposes of the Data Protection Act 1998, in particular section 35 (disclosures required by law or made in connection with legal proceedings etc) and Schedules 1 (data protection principles), 2 (conditions relevant for the purposes of the first principle: Processing of any personal data) and 3 (conditions relevant for the purposes of the first principle: processing of sensitive personal data) of that Act."

The noble Lord said: The amendment reflects current public concern, partly because of two recent tests of the Data Protection Act 1998; namely, some of the events following the Soham murders, and a recent incident involving British Gas, where social services had not been informed of an elderly couple's circumstances. Alongside those headline-grabbing events, Victim Support noted a more general point; namely, regardless of the intention, a drop-off in referrals after the Data Protection Act 1998 came into force.

There is very real public concern that the Data Protection Act may carry with it, despite all its good intentions, unforeseen problems that are making authorities and responsible bodies overcautious. As a result, the worry is that information that should be exchanged between agencies to give effect to activities and actions promised in the Bill will not take place. Although the amendment carries with it broad support for that Act, it seeks to ensure that such overcautious interpretation of the Act does not occur. I beg to move.

Baroness Scotland of Asthal

I am of course very much aware of the concerns raised by the noble Lord, Lord McNally, particularly in relation to the confusion in the interpretation of the Data Protection Act, as was so recently and tragically illustrated in the Soham case and by British Gas. I am sure that the Committee will know of the inquiry by Sir Michael Bichard, which is now under way. A primary focus of Sir Michael's inquiry will be to look at the handling of information within the framework established by the data protection legislation, as interpreted in the national and local guidance. Needless to say, I am not in a position to pre-empt the findings of that inquiry.

I am aware of the issue raised by Victim Support about how information has been dealt with. It has mentioned difficulties about being informed of victims' details by the police in some areas. Without those details, of course, it is impossible for Victim Support to offer its services. I am aware also that the administrative arrangements to ensure that police pass on the details sometimes fall into disrepair.

We are, however, confident that the current arrangements for passing information to Victim Support comply with the Data Protection Act. Those arrangements were discussed at length by the Information Commissioner, the Home Office, Victim Support and the police. They are the subject of a Home Office circular sanctioned by the Information Commissioner. The arrangements are replicated in the illustrative draft of the code which has been placed in the Library. I hope that Members of the Committee will have an opportunity to glance at that. Therefore, the amendment would have no practical effect on the draft of the code as it stands.

We think that the answer to the practical difficulties which Victim Support has faced is not a change in the law, which already permits information to be passed, but probably a change in practice. The answer is to tackle the recalcitrant police areas, to point to the guidance that has been approved by their chief officers, and to reassure them that they are acting in accordance with the Data Protection Act. I think that many people feel that they cannot give information that the Act makes absolutely clear that they could and should give.

To make explicit the link between the disclosure of information for that purpose—however important it may be—and the Data Protection Act is likely to lead to further confusion about that legislation, as the noble Lord suggested. It could, for example, lead other public authorities to believe that such a provision was required for them to make their own disclosures rather than relying on compliance with the general principles of the Data Protection Act. I know that that is not what the noble Lord would wish.

The amendment would also have the effect that the disclosure of information under any future version of the code would be deemed to comply with the Data Protection Act. That would be wrong as a matter of principle. Any government revising the code in the future need to ensure that it does not require the disclosure of information that would be contrary to that Act. The Act safeguards the right of the citizen to privacy, and a future government should not be able to override its provisions in such a way.

I also want to reassure Members of the Committee by saying that the ministerial domestic violence committee that I chair has been very exercised about the clarity of understanding in relation to the Act. We are looking very energetically together, across departments, to see what we can do to address that and to bring the clarity that practitioners and others need if they are to be confident about exchanging the proper information to keep women and children, in terms of domestic violence although it applies to victims generally, more safe.

5.30 p.m.

Lord McNally

That was, in many ways, a reassuring response. One point that Victim Support makes is that it is not only the police that have to get the message but other agencies as well. Although the kind of co-ordination and action that the Minister described may solve the problem, the matter has to be closely monitored to see whether there is an immediate improvement from the activities, education and information that she described. We are not talking about only a complaint from Victim Support; there is a genuine and general public concern that the Data Protection Act, either in what it contains or how it has been interpreted, has very damaging and unforeseen consequences. However, particularly in the light of what the Minister said, it is my pleasure to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23, as amended, agreed to.

Clause 24 [Victims' Advisory Panel]:

[Amendment No. 98 not moved.]

Baroness Anelay of St Johns moved Amendment No. 99: Page 13, line 15, leave out from "and" to "before" in line 17 and insert "the Lord Chancellor

On Question, amendment agreed to.

Baroness Anelay of St Johns moved Amendment No. 100: Page 13, line 23, leave out "may" and insert "must

The noble Baroness said: The amendment returns us to a familiar theme; namely, that where one sets up a statutory body on which people serve as volunteers or representatives of organisations and carry out work to its benefit, as members of the panel will, the Secretary of State should reimburse them for their expenses. Subsection (4) sets up in statutory form the Victims' Advisory Panel, stating: The Secretary of State may reimburse the members of the Panel for such of their travelling and other expenses as he thinks appropriate". I have done the usual in my amendment and changed "may" to "must" in order to ask the Government in what circumstances the Secretary of State would not reimburse such expenses.

In any event, the clause gives the Secretary of State very wide power to say no. Even if one says that the Secretary of State "must" reimburse, he can still say that he does not think it "appropriate" for particular expenses. I really do not understand why the Government need the extra flexibility that the word "may" would give as I cannot believe that they are expecting people to do the work without the appropriate reimbursement. I beg to move.

Baroness Scotland of Asthal

I can give the noble Baroness the assurance that the Government have absolutely no intention of failing to reimburse those who are so generous as to give of their time expenses that have been identified as reasonable and appropriate by the Secretary of State. Of course, if I may respectfully say so, the noble Baroness's drafting would be rather curious. It has always been the intention that lay members who are otherwise financially unrewarded for their commitment are reimbursed for the expenses they incur in providing their services to myself and, indeed, other Ministers. The existing wording allows the Secretary of State to spend government funds on this.

The amendment would make no real difference to the practical arrangements for paying expenses, as the Secretary of State will still have a discretion as to what expenses were appropriate. Expenses are a practical matter which we think should be dealt with between individual panel members and the Home Office. There is no need to go any further on the statute book than giving the Secretary of State the power to make the payments.

It is common and accepted legislative practice to provide a power rather than a duty in circumstances like this. For example, Schedule 1 to the Misuse of Drugs Act 1971 provides that the Secretary of State "may" rather than "must" pay the expenses of the members of the Advisory Council on the Misuse of Drugs.

The real purport of saying that the Secretary of State may reimburse expenses is that, when it comes to accounting for the moneys expended by the Secretary of State, he has to make it clear that he was entitled to make those payments. That is why we normally use "may" in this regard. There is no suggestion that the Secretary of State would not pay appropriate expenses. However, the noble Baroness is absolutely right—"must" would be negated by the fact that the Secretary of State would reimburse expenses only if he thought that was appropriate. Therefore, "may" and "as he thinks appropriate" tend to go hand in glove.

Lord Mayhew of Twysden

Why does exactly the same line of argument not apply to Clause 24(3), which states: The Secretary of State must consult the Panel … in such manner as he thinks appropriate"? I do not see why the same line of argument that we have just heard does not apply in that case.

Baroness Scotland of Asthal

If I may respectfully say so, it is quite different. What we are talking about in relation to the Secretary of State reimbursing moneys is that he can reimburse any individual for the expenses that he considers appropriate. The word "must" in subsection (3) relates to consultation. Subsection (3) states: The Secretary of State must consult the Panel at such times and in such manner as he thinks appropriate on matters appearing to him to relate to victims". So if a matter arises relating to victims that is of some significance, he must consult them. That is the difference, if I may respectfully say so.

Lord Mayhew of Twysden

I am grateful for that explanation, but I think I am right in interpreting what my noble friend has said as indicating that where the Secretary of State thinks it is appropriate to reimburse members of the panel for travelling and other expenses, he must do so. I should prefer to see the word "must" rather than "may". We are in danger of getting into a circle here. If I have misinterpreted my noble friend, she will say so, but I do not think that I have.

Baroness Anelay of St Johns

My noble and learned friend has not misinterpreted me at all. I agree with him regarding subsection (2) where the Secretary of State must consult. I believe that logic is in my favour here. It is obviously a matter that I shall have to consider carefully between now and Report and perhaps delight the noble Baroness by returning to it at that stage.

Baroness Scotland of Asthal

I register my real disappointment. I really do not think that that will make any difference at all, although it is always delightful to banter words with the noble Baroness and, indeed, with the noble and learned Lord.

Baroness Anelay of St Johns

Although I have referred to the matter somewhat flippantly, the important point is that when one is recruiting volunteers, one wants to treat them with seriousness in recognition of the sacrifices that they make. However, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 24, as amended, shall stand part of the Bill?

Baroness Anelay of St Johns

It occurred to me that I should raise one other issue at this stage, because I may need to refer to it on Report. I am giving the Minister and other members of the Committee some forward notice. When I was considering the clause during the weekend, I did some homework that perhaps I should have done in the first instance. I tried to find out how the Victims' Advisory Panel currently works. I know that the Minister chairs it. I looked in particular at Clause 24(7). It states: The non-statutory Victims' Advisory Panel is to be treated as having been established in accordance with this section". When I asked the Library some time ago to find as much information as it could on the panel's objectives, composition, method of appointing, current personnel and the mechanics of how it now works, I ran into difficulty. The Library did its best, but because the panel is non-statutory, it was unable to come up with much detail. When I reviewed the Library's information at the weekend, I found it curious that we are to airlift that body suddenly into statute without knowing what it looks or feels like and without having a schedule that sets out its objectives, raison ďètre, the confines within which it works and how its membership shall be comprised. We have been careful to do that in setting up other organisations and yet not here.

That is why I am speaking now to Clause 24(7). I shall want to look carefully at whether a schedule should be added on Report and what shape it should take. It would require the Government to flesh out how the advisory panel will work. The Minister may well want to hold her fire until then, but it seemed right to give her notice of my intent at this stage.

Lord Borrie

I notice there is some description of the existing panel in paragraph 91 of the Explanatory Notes. I am not sure what more the noble Baroness wants.

Baroness Anelay of St Johns

My understanding is that when one sets up a statutory body, a corporate statement and a corporate structure are normally appended to the Bill. An example is the Office of Communications Act, to which I referred earlier. The statutory body that it created was carefully delineated: how the chairman was to be appointed; what size of membership it had. I am not looking for that kind of detail, because the panel does not have that kind of responsibility, but it is odd that Clause 24 is parachuting something in without stating more about what it is intended to be.

Lord Borrie

With respect, I am not sure that that is a terribly good example. I know that the noble Lord, Lord McNally, knows a lot more about the matter than do I, but, as I recall it, there was a paving Bill to set up the Office of Communications long before anybody was determining what its powers, functions and so on should be.

Baroness Anelay of St Johns

I apologise to the noble Lord, Lord Borrie. I did not make myself clear enough. The Act to which I was referring is the 2002 Act, the original Ofcom legislation. That contains a schedule that sets out precisely how one shall appoint and disappoint particular people to that body. I was looking for the expected outcomes of that body. It was that kind of schedule that I thought might be included in a more limited form in the Bill to give a flavour of how the Victim's Advisory Panel was to be composed and how it was to operate. I shall reflect on whether it would be appropriate in the circumstances. The difficulty is that we are being asked to put a legislative seal on a body about which we know precious little in official terms.

Clause 24, as amended, agreed to.

Clause 25 [Grants for assisting victims, witnesses etc]:

5.45 p.m.

Baroness Anelay of St Johns moved Amendment No. 101: Page 14, line 3, leave out "as he considers" and insert", charities or other organisations as he has reason to believe are

The noble Baroness said: We now reach the stage where the Secretary of State is to start making the necessary provision of funds. Clause 25 states that: The Secretary of State may pay such grants to such persons as he considers appropriate in connection with measures which appear to him to be intended to assist victims, witnesses or other persons". He can make any grant that he wants. Earlier, we received assurances from the Minister that he must act reasonably, and she will repeat that now.

However, my reason for tabling the amendment is to ask the noble Baroness to place on the record an indication of what the Government mean by the recipient bodies. Who will be considered as "appropriate" to receive the grants? For example, subsection (1) simply states that the Secretary of State can pay grants to "such persons". I am aware that a "person" is a company limited by guarantee as well as an individual, but I was not aware that a voluntary organisation was a "person" in legal terms.

I wonder whether the word "person" covers a sufficient range of bodies, organisations, people or whatever to make the operation of the Bill as effective as the Government intend. Obviously if an organisation is a company limited by guarantee and a charity—for example, my own local CAB—that is all right because it is a "person". But if it is not a company limited by guarantee, it is not a person and, therefore, how would it qualify? It may simply be that my legal knowledge is so deficient that I have missed something which is obvious to everyone else.

I have, again, received a representation from Professor Pahl, Professor of Social Policy at the University of Kent. He points out a more general issue with regard to my amendment—that is, that the Government have not yet, in the eyes of some organisations, been as generous as they would have hoped in relation to funds.

The noble Baroness, Lady Thomas of Walliswood, or the noble Baroness, Lady Walmsley—I apologise for not recalling exactly who it was—has already referred to issues of refuge. The difficulty pointed out by Professor Pahl is that a serious failure of the Bill is that it does not do anything to remedy the situation in which the leading voluntary organisations working in this field—that is, women's refuges—remain seriously underfunded. The professor states that that applies both at national level—for example, women's aid organisations for England, Scotland, Wales and Northern Ireland—and at the level of the 400-plus local refuges. She says that some refuges receive funding from local authorities and women contribute from their income from security and housing benefit personally. But most refuges struggle financially. She states that it would be a good idea if Clause 25 were extended so that there was a clear commitment at national level to support the work of the refuges financially, both nationally and locally.

Therefore, my amendment is intended to cover that issue. I am asking the Government whether the Secretary of State will, as a matter of urgency, consider moneys going to those organisations? Do they fall within the "persons" defined in subsection (1)? I beg to move.

Lord Mayhew of Twysden

I hope that I shall be indulged if I congratulate the Minister and the draftsmen on saying "may" in line 3 because plainly the intention there is to give a discretionary power. I cannot help contrasting that with Amendment No. 100, which we have just debated. The intention of my noble friends amendment is to confer not only a discretionary power but a duty. Therefore, the word "may" is entirely appropriate in the amendment with which we are dealing; the word "must" would have been entirely appropriate in the earlier one.

Baroness Scotland of Asthal

I thank the noble and learned Lord for that. I am almost tempted to say in relation to the earlier amendment, "I'll come quietly because it makes no difference", but I shall resist. It might obviate the need to go through hours of discussion later. I shall remain robust for the time being.

On Amendment No. 101, if the noble Baroness looks at how we have drafted Clause 25 it is explicit that, the Secretary of State may pay such grants to such persons as he considers appropriate". We believe that legal and proper construction of the way in which such persons are used in Clause 25 would include charities or other organisations. Of course, the grants could be made payable to the chairman or a person in the organisation for and on behalf of that organisation. We do not believe that the amendment is necessary, as the legal term "persons" as set out in Clause 25 would already cover such organisations. Instead—and I know this is not the noble Baroness's intent—if we were to accept her amendment it may have the effect of restricting to whom the Secretary of State may issue grants.

The amendment also replaces the Secretary of State's power to provide grants to persons, as he considers appropriate", to the more objective requirement that he "has reason to believe".

Again I argue that this change is of no significance or value to the Bill because, as I said in response to the earlier amendment, the Secretary of State is bound by the rules of reasonableness in his actions and may be subject to judicial review on those grounds. So, changing the wording will have little effect.

I believe that we have used the phraseology in Clause 25 in relation to, pay such grants to such persons", to include organisations and charities before and have not received any difficulty in so doing. I shall of course check that, but I think that concern of the noble Baroness is unfounded. If it was not before I have just done a Pepper v Hart on it.

Baroness Anelay of St Johns

I am grateful to the noble Baroness. Perhaps I can ask one further question. The Minister said that I should not be concerned because "persons" covers organisations. So "person" includes an individual. We have a situation where the Secretary of State has freedom to give the money to anyone within the confines of the clause. The obligations he might have to victims—

Baroness Scotland of Asthal

That is how I interpreted it. It can be "persons" as a body, "person" as an individual or "person" as an incorporated body, provided it is capable of being defined as a person of some kind. I do not believe that the Secretary of State under this provision could give the money to an inanimate object.

Baroness Anelay of St Johns

Again I am grateful to the noble Baroness. The difficulty I have is that the simplicity of the drafting of Clause 25 was at variance with the explanation the Government were trying to give in the Explanatory Notes. The notes varied from talking about bodies, to persons or organisations, to "several voluntary organisations" in paragraph 94. I know that the Explanatory Notes are trying to be helpful by dealing with the full range, but I think that because "persons" was the only word used it led to some confusion among other organisations which felt that it meant they would be excluded. I appreciate fully what the noble Baroness says—that she intends it to include rather than to exclude.

Before I withdraw the amendment, perhaps I may say that I note that the Government Whip hopes that we might deal with the next amendment, which I think will take us beyond 6 o'clock. Whereas that is convenient to me, it may not be to the Minister. Perhaps she may want to check that matter. The next amendment is that of the noble Baroness, Lady Thomas of Walliswood. Before I formally withdraw my amendment, can there be a comment on that so that technically—

Baroness Crawley

As I understand it, the noble Baroness, Lady Thomas of Walliswood, will not take too long on the next amendment. I am happy to continue, and I believe that the Minister is.

Baroness Anelay of St Johns

In that case I shall not speak on the next amendment. I am sure that I shall have the opportunity to return to it on Report. I know that we all look forward to the Minister being able to act in a different capacity later this evening. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Thomas of Walliswood

I am in the Committee's hands. If noble Lords want me to continue I shall. However, I do not want to spoil the Minister's life by continuing after six o'clock.

Baroness Scotland of Asthal

We have five minutes. I know the speed of the noble Baroness. I am sure that we can get there.

Baroness Thomas of Walliswood moved Amendment No. 101A: Page 14, line 7, at end insert— ( ) The Secretary of State may, subject to such conditions as he considers appropriate, make grants to voluntary organisations under this section for the purpose of providing appropriate protection and support services for children who have suffered impairment due to seeing or hearing ill-treatment of another person.

The noble Baroness said: In this amendment we are trying to bring forward for the first time, because it is not explicitly addressed in the Bill as drafted, the need to make appropriate support and protection for children who have experienced domestic violence. Members of the Committee will know that that is a particular interest of my noble friend Lady Walmsley.

We all know that a very large proportion of all the children on the at-risk register live in households where domestic violence occurs. Studies have shown that those children are quite clear on what they think they need. They need to be safe and to have someone to talk to. They have said, in answer to a survey, that the support services which they found the most useful were those provided by children support workers in refuges. Refuges provide support for more than 100,000 children per year. That is the only widespread dedicated source of support for children who have experienced domestic violence.

There is a suggestion in the brief that government initiatives are reducing the vital support services for children who have experienced domestic violence. Children's services in refuges are starved of funds because the funding provided through the Supporting People scheme is not intended for children. Yet children make up two thirds of the refuge population. Also, the national standards for under-eights' day care have set staffing ratios and minimum space standards which many refuge organisations cannot afford to meet. Some refuge organisations have had to limit play sessions to less than two hours per day in order to comply with national standards.

If the only kind of attention paid to children during the legal process is the required home visit and a single interview, the person conducting the interview may not be able to support the child sufficiently to enable the child to admit that it is suffering from violence in the home. For all those reasons, we feel that it is very important that resources should be made available for specialist assessments to be carried out. That is another area where more funding is necessary. Indeed, all the matters I have spoken about can be properly supplied only by an assured funding scheme. That is why we should like to be able to say specifically that the Secretary of State may make grants to voluntary organisations for the benefit of children who have suffered as a result of domestic violence. I beg to move.

Baroness Scotland of Asthal

I support the underlying principle of this amendment. Child welfare is an issue about which we should remain deeply concerned. I recognise, in particular, that children who witness violence in the home have special support needs.

However, the amendment would not give the Secretary of State power to do anything which is not already permitted by Clause 25. The clause gives the Secretary of State power to pay grants to assist "persons affected by offences", which would include children who witness violence in the home.

The purpose of this clause is to provide a statutory authority for regular government grants to voluntary sector bodies. It is consistent with existing Treasury best practice. It does not, in itself, and nor is it intended to, signal that more funding will be available or that specialist groups that are currently unfunded by central government will become so. That sort of consideration is being taken forward in the action plan being drawn up on the national strategy for victims and witnesses, which was published last July. I hope that that response gives some pleasure to the noble Baroness.

Baroness Thomas of Walliswood

I had already noticed the word "witness" in the clause as it stands. I rather fancied that the Minister might be able to flatten this amendment on that account. I shall consider what the Minister said and some of the papers that she mentioned to see whether it is necessary to return to the matter at a later date. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Crawley

This may be a convenient moment for the Committee to adjourn until 3.30 p.m. on Monday.

The Deputy Chairman of Committees (Baroness Turner of Camden)

The Grand Committee stands adjourned until Monday at 3.30 p.m.

The Committee adjourned at one minute past six o'clock.