Grand Committee Report of 19 January 2004

Official Report of the Grand Committee on the Domestic Violence, Crime and Victims Bill [H.L.]
(First Day)
Monday, 19 January 2004.
The Committee met at half past three of the clock.
[The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]
The Deputy Chairman of Committees (Lord Ampthill): Before we begin the proceedings on the Bill I should mention two matters. First, all the faces before me are familiar with the procedures and I do not believe that it is necessary for me to read out the spiel about how we conduct ourselves in the Committee. Does anyone disagree with that? It would appear not.
Before we get under way, I am told that there will be an informal discussion about the timing of the later stages of consideration of the Bill. This is innovative but it is in order, provided that no one attempts to move any Motion or divide the Committee. I therefore invite the Minister to launch this informal discussion, in which I shall play no part unless there is any violence.
The Minister of State, Home Office (Baroness Scotland of Asthal): I should like to say a few words about the publication of the consultation document, Compensation and Support for Victims of Crime. I know that this issue was raised in the House when my noble friend Lord Bassam moved the order of consideration of the Bill on my behalf. Although I said on Second Reading that that would be published in the new year, I did not explicitly link any possible legislation to the Domestic Violence, Crime and Victims Bill. That was because at the time of Second Reading the date of publication was not clear and, as a consequence, it was not known whether the timetable for consultation would allow amendments to the Bill.
In accordance with my usual practice, I should have liked to contact those with an interest in the Bill to inform them of the position in relation to the consultation paper. I realise that that was not done and I apologise unreservedly for that. I know that members of the Committee take a keen interest in such matters—including those who are involved in support to victims and the Criminal Injuries Compensation Authority and its predecessors—and I shall be more than happy to provide more detail and to discuss the proposals set out in the paper, should the Committee want me to do so.
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We are committed to a full and open consultation. At this stage, three areas require legislation. The first is the surcharge on fixed penalty notices for criminal offences and any fine, community or custodial sentence. The revenue recovered would be paid into the victims fund to provide support and services to victims of crime. That would fall within the territory currently covered by Part 2 of the Bill. The other two areas fall within Part 3. Those include transferring the liability to pay compensation to those criminally injured in the course of duty to the employer and giving the Criminal Injuries Compensation Authority a right to recover what it has paid in compensation from an offender. However, we need to come to a view as to whether we choose to pursue those proposals and in what form, following the consultation process.
I am grateful to the Committee for sparing the time for me to make that brief statement. I very much look forward to working with the Committee on the Bill.
Lord Carlisle of Bucklow: I am grateful to the Minister. I had given her notice that I intended to raise this matter and she has been kind enough to write me a letter today setting out what she has just said.
However, with respect, the issue goes further than that. Let me give the date order in which events occurred. On 23 October, the noble Lord, Lord Filkin, wrote to me about a question I raised in debate on the Criminal Justice Bill—whether a consultation paper on compensation for victims was under consideration. He said that it was and that it would be published in the next two months. The document was duly published in January—not quite within two months.
In the mean time, as the Minister said, the Second Reading of the Bill took place. During Second Reading, she mentioned that a Bill would be published but she did not at that stage refer to any legislation. In January, the consultation paper was published. That consultation states in terms that comments are invited:
"Please respond to this consultation paper by 29th March 2004".
That seems reasonable and certainly no longer than one would expect on a major paper out for consultation. Immediately above, it states:
"Subject to the outcome of this consultation exercise"—
that is, the consultation to be completed by 29 March—
"we propose to legislate to make the changes where necessary through amendments to the Domestic Violence, Crime and Victims Bill. We hope that this Bill will be enacted by the Summer 2004".
The Government are saying, therefore, that they do not expect consultation to be completed before 29 March. At that point, if they wish to make legislative changes, they will make them in a Bill which had its Second Reading in the December of the previous year and, should it be the wish of the Committee, should start its Grand Committee stage today.
Needless to say, my noble friend Lady Anelay took up this matter on the Floor of the House, inquiring into the position and asking when amendments were to

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be inserted into the Bill, which was the subject of a Motion relating to consideration in this Committee. She asked the Minister to,
"give an assurance to the House that the Bill will not leave Grand Committee until those amendments have been tabled and noble Lords have been able to give full consideration to them".
My noble friend then said:
"If he is unable to do that, can he give the House an assurance that the new clauses will be considered by way of recommitment when the matter returns to this House after consideration by the Commons?".
The noble Lord, Lord Bassam, replied to my noble friend but, with great respect, he said absolutely nothing. He said:
"I cannot give commitments from the Dispatch Box today about recommitment and such issues. However, I can tell your Lordships that there will be ample time for consultation".—[Official Report,13/1/04; cols. 469–470.]
However, it is not the time allowed for consultation which concerns us; we know that that is set out in the Green Paper. Rather it is the time allowed for consideration and discussion of any matters that may arise out of the consultation.
The Minister, with her normal courteousness, has written to me about this, stating that,
"At this stage it is difficult to be precise about the number of clauses"—
that is, the number of clauses that will need to be added to the Bill as a result of amendments arising from the consultation—
"given that there are still some policy details to be worked through in light of any consultation responses. We are committed to a full and open consultation process. We will aim to legislate quickly where we can. However, should the consultation process bring new issues and complexities to light, we may have to take longer in policy development and consequently may not be able to amend this Bill".
In other words, the noble Baroness is rightly leaving the way open in case the Government have to introduce a completely different Bill.
The Minister mentioned three of the matters that the consultation raises. Two of them are highly controversial. One is the intention that those who speed in motor cars should pay a surcharge into a fund that is to compensate the victims of crimes of violence, although they have had nothing to do with a crime of violence. In other words, what is at the moment coming out of general taxation is instead to be taken on by the individual motorist. Equally importantly, and equally controversially, and far more wide in the Bill, it is intended that anyone who is injured in the course of their work as the result of a criminal offence should be compensated not from general taxation but by the employer by way of insurance.
A large proportion of the Criminal Injuries Compensation Act 1995 deals with injuries caused to someone in the course of employment. I am talking not only about policemen and nurses, but anyone working in a shop or a restaurant. If a fight takes place and they are injured, they are in the course of their employment and therefore it is said that the employer should insure against that. I do not want to get into the merits of
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those changes. They will be controversial, and they desire and require full consideration by this House before they are turned into law.
Therefore, with great respect to the Minister, we are all entitled to know the intention of the Government before we start on any stage of the Bill. Is it their intention at this moment that major new clauses are to be added? In the normal turn of events, starting in Grand Committee on 19 January and ending on 9 February, the Bill would have been long though the Lords before the consultation period ended on the other paper. Is it the Government's intention that those amendments are to be introduced into the Commons, with the Lords merely limited to the consideration of Commons amendments? Is it intended to re-commit to a Committee the clauses that have been added? With respect, we are entitled to know.
I appreciate that I will not be able to move any Motion, or invite a Division in the Committee, as both of those would be out of order. We are allowed, if everyone wished, to adjourn the Committee stage of the Bill until it is clear what will happen. If necessary, we could delay the start of the Committee stage of the Bill, so that we can be sure that the Bill will still be before the Lords when any major changes are made to it.
Baroness Anelay of St Johns: I ought to speak briefly to put the position of the Front Bench on this side. As a Front-Bencher, I am bound by decisions of the usual channels. That does not mean that in any way I fail to support the objectives and the principled intent of my noble friend. I am aware that an agreement has been made that the Committee stage will begin today—of course I support that.
As my noble friend has pointed out, however, the Minister properly referred at Second Reading to the fact that there would be consultation and legislation on the Criminal Injuries Compensation Authority and other matters. At that stage, it never occurred to me, not for one second, that the Government's plan was to go out to consultation at the beginning of this year and to do so in such a way that it would be impossible for this House to consider those clauses properly, should they be brought forward in the normal procedure.
Indeed, had any of us at that stage on 15 December had a modicum of suspicion that that was the Government's intention, it may well be that usual channels would have thought hard before agreeing to a Committee starting on this day. However, we are where we are. I am grateful to the noble Lord, Lord Bassam of Brighton, for his response last week that he would refer the matter back to the usual channels. I understand that discussions are afoot as to how the House may properly consider any clauses brought forward by the Government. One would of course hope that we would follow the best practice pointed out by my noble friend, or at the very least the next best practice, which would be that we would not start Third Reading until we had a re-commitment on the new clauses.

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The Minister wrote a very courteous letter to us dated 16 January, for which I am most grateful, in which she invited us to a meeting to discuss the possibilities of the new proposals. I wish to be the first to welcome that and to say that I would be delighted if such a meeting could take place, as it would be most constructive. However, like my noble friend, I am dismayed by the penultimate paragraph. It looks as though the Government are at sea about what might be the outcome. One can applaud that in one respect, because it means that they are thinking and listening to consultation when it is completed. On the other hand, in the context of a Bill that is starting in Committee today, one is dismayed because one does not know quite what will happen to it and what contribution this House will make.
I am also advised that it would be proper for me at this stage to make a brief comment on another matter, of which I have given notice to the Home Office officials and the noble Baroness's office. It is the amendments on Northern Ireland that were produced last week and were in print on Friday. I was kindly approached by the Home Office, by fax, the day before with draft copies of those amendments. As the Government are producing proposals for the devolved legislature in Northern Ireland on matters in Clauses 4 and 5 that are highly controversial, our view was that we could not in all honesty say that those amendments should be agreed in Grand Committee.
Noble Lords are old hands at Grand Committee; they will know that any amendment may be made only by agreement of every Peer present. Although I am not necessarily hostile to the ultimate adoption of those amendments, I will not be able to agree to them being made in Grand Committee. However, I expect to listen very carefully to the government argument and have a full debate on them. From today, I shall also start to contact organisations in Northern Ireland—they may have been consulted by the Northern Ireland Office, but we do not know that yet—to take proper soundings so that we may then properly decide whether, at a later stage, we will need to amend the government amendments when they are tabled again on Report.
I am indicating a procedure. Last Wednesday, I immediately phoned the Home Office to give it advance warning. I also gave the Liberal Democrats' Whips office notice. We will not hold up the ultimate delivery of the Government's provisions, but that procedure will enable the Opposition to give them proper consideration.
3.45 p.m.
Lord McNally: This is my maiden speech in a Grand Committee. I am not therefore experienced about such a Committee's procedures. However, I spent a good deal of time involved as part of the usual channels' discussions with the late Leader of the House, Lord Williams of Mostyn, about the concession—and it was a concession—of allowing Bills to come to Grand Committee to facilitate government work. It is my clear recollection that the experiment was based on the fact that the Government would not play fast and
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loose with a piece of legislation once the House had decided that it was suitable for consideration in Grand Committee.
Without the forensic persuasiveness of the noble Lord, Lord Carlisle of Bucklow, I put it to the Minister very bluntly that that is exactly what the Government are doing. I give her fair warning that, if the Government conveniently reshape Bills in Grand Committee, they will bring Grand Committee procedure into disrepute and will find that they make the opposition parties very reluctant to go down that road. Therefore, although I shall not go into the noble Lord's points about the nature of the proposals, they have major implications not simply for domestic violence—the point of the Bill—but for fines, compensation and terms of employment. I give notice that we shall consider the urgency of the whole of Part 3 if it is to contain such provisions.
The problem is that the Government always feel that they can put opposition parties on the back fool when they produce measures that, like the curate's egg, are good in parts. When we point out the bad additions, they say, "Ah ha!You are trying to prevent the good parts coming into law". That is not true, but there is a substantial point of principle that we are unwilling to let pass. I associate myself with the remarks made by the noble Baroness, Lady Anelay, about the Northern Ireland provisions—also suddenly spatchcocked into the Bill in an arbitrary manner.
I hope that the Minister takes to heart the fact that the complaints of the opposition parties are extremely justified. If we were on the Floor of the House, I should have been willing to have followed the noble Lord, Lord, Carlisle, into the Lobby on this point of principle.
Lord Campbell of Alloway: Can I briefly support—
The Deputy Chairman of Committees: I am not trying to curtail discussion more than I think necessary, but now we have heard from the opposition parties, it would be better if we were to hear from the Minister, not let everyone around the table have his go.
Baroness Scotland of Asthal: I have of course listened carefully to all that has been said. In response to some of the comments, I say gently that of course in an ideal world no government would ever amend a Bill after introduction, save in response to parliamentary scrutiny or real world events. In reality, however, we know that governments of all complexions do so from time to time. In this case, the Committee had the advantage of knowing what might be coming.
As I said, there is genuine consultation. I hear what the noble Baroness, Lady Anelay, said about that. We are firm in our view of what should occur, but we are not so arrogant that we think that we are the fount of all wisdom and that consultation is therefore not merited or that we should not listen carefully.
I hope that I have been frank enough to make clear that if, through the consultation, we feel that the timing is not right and does not elide with the Bill's provisions, we shall have to reconsider. I know that the

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Committee is anxious about the whole issue of what we do to help and support victims and witnesses. The Bill is entirely directed to helping them. I am confident that the Committee would want us to take all appropriate opportunities to give them the support that they need.
When my noble friend Lord Bassam responded about consultation, he was talking about consultation through the usual channels, as opposed to the Home Office's consultation on the policy. Through the usual channels, there will be appropriate consultation, as the noble Baroness, Lady Anelay, said.
I tried in my outline—the few remarks I made before we started this short debate—to describe the nature and extent of the amendments that we think may be appropriate. Of course I hear what the noble Lord, Lord Carlisle of Bucklow, said about the controversial nature of the provisions. That depends on the form of the consultation and whether we iron out those controversies.
The noble Lord said much about speeding and the inappropriateness of allowing all those who break the law to participate. The Government's proposal is that all offenders should pay into the fund for all victims. There is a great deal of concern that the victims of road traffic incidents should not be put into another category. I read a letter in the Guardian from Mr Graham Durbin, and I thought that it was very helpful. He said:
"Could the government's plans to surcharge … motorists be thwarted by a campaign of mass civil obedience, in which drivers refuse to break the law?".
I would certainly concur with that view.
These issues will take some time. I did not know specifically about the Northern Ireland issues that the noble Baroness mentioned, but, I am sure that she told my officials. I am most content to debate the matter in Committee, and the noble Baroness will be able to come back on Report and take whatever stance she deems appropriate. In no way will I construe that as meaning that she has acceded to the provisions. I think she will find that the Northern Ireland provisions are proper and do not excite much concern, but she will, of course, need time to consider the matter.
I hear what the noble Lord, Lord McNally, said about playing fast and loose with the Committee. None of us engaged in the process has ever attempted to play fast and loose. The Committee process has been extremely useful, and I assure the noble Lord that we do not seek to do anything in Committee that we would not do on the Floor of the House.
With that, I hope that noble Lords will join me in starting to discuss what is one of the most longed-for Bills for a long time. We have waited 30 years for it, and I invite the Committee not to wait a minute longer before we start discussing it.
Lord Campbell of Alloway: I wish—
The Deputy Chairman of Committees: We have had enough of this informal discussion. I am certain that many noble Lords have views that have not, perhaps, been expressed, but the main ground, in this
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unprecedented situation, has been covered by those who have spoken. We should now get on with the Bill. The matters that have been discussed will, of course, all appear in Hansard tomorrow morning. They can be taken up through the usual channels or elsewhere.
I am sorry, but I will not allow the noble Lord to prolong what has been a perfectly agreeable discussion between those who speak from the Front Bench for their respective parties. Therefore, I will not call the noble Lord.
Lord Campbell of Alloway: You have no right not to call me. I wish to be heard, as a Member of the Committee.
The Deputy Chairman of Committees: I am not giving you a chance to be heard now. You can be heard as soon as we get into the Bill.
Lord Campbell of Alloway: The question that has arisen—
The Deputy Chairman of Committees: Would the noble Lord mind sitting down while I am on my feet, please?
Lord Campbell of Alloway: If I am allowed to get to my feet again.
The Deputy Chairman of Committees: You can get to your feet again at the appropriate moment, when I have gone through the next procedures on the Bill.
Title postponed.
The Deputy Chairman of Committees: I call the noble Baroness, Lady Anelay of St Johns.
Lord Campbell of Alloway: I must—
The Deputy Chairman of Committees: I have called the noble Baroness, Lady Anelay of St Johns.
Lord Campbell of Alloway: I know, but you have—
The Deputy Chairman of Committees: Would the noble Lord therefore please sit down?
Lord Campbell of Alloway: Under protest, I will do so.
The Deputy Chairman of Committees: Protest as much as you wish. I invite the noble Lord to be so good as to sit down, as I have called the noble Baroness, Lady Anelay of St Johns.
Lord Campbell of Alloway: You are ordering me to sit down. As a Member of the Committee, I feel that there is an aspect that has not been dealt with. The noble Baroness spoke of consultation—
The Deputy Chairman of Committees: The noble Lord, Lord Campbell of Alloway, is defying what I, as

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Chairman of the Committee, have said to him. Unless he is willing to accept what I have said, I can have no option but to ask him to leave the Committee.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No.1:
Before Clause 1, insert the following new clause—"
"TRAINING
(1) No person mentioned in subsection (2) shall be required to carry out their functions in relation to matters covered by this Act unless that person has followed a course of training and development covering the matters dealt with in this Act.
(2) Subsection (1) applies to the following—

(a) police officers;

(b) those involved in the conduct of domestic homicide reviews.

(3) A member of the judiciary may not carry out their functions in relation to matters covered by this Act unless that person has followed a course of training and development covering the matters dealt with in this Act."
The noble Baroness said: The importance of the Bill is not reflected by its length or, at least—as we have recently been debating—its current length. As a precursor, I must say that the noble Baroness did not have advance notice of my intention with regard to Northern Ireland. As soon as I had received a courteous fax from her office on 15 January, I spoke to her private secretary by telephone, who, I know, is new in the job. I explained the procedure. I did not speak to the officials until we arrived today, and I am sorry that the message did not get through on an earlier occasion.
There are provisions in the Bill that break new legal ground in many respects and will involve statutory and voluntary organisations in their effective implementation. There are, of course, significant resource implications. The objective of my amendment is to draw attention to the importance of training for all those who will be involved in implementing the provisions of the Bill and to ask the Government to explain what steps they have already taken to ensure that there is the budget and the staff to do the training required.
So far the Government have only pointed us to what might happen in the future. A Written Answer by the Home Secretary in another place stated that the Inter-Ministerial Group on Domestic Violence will, over the next two years and beyond, oversee a programme of work and that,
"Among other things, we will be looking at education and tackling risk factors, improving the police and CPS handling of domestic violence cases".—[Official Report, Commons, 7/1/04; col. 416W].
That is very welcome. I certainly congratulate the Government on that work and look forward to seeing the results of it.
However, I must point out that the Government also expect the Bill to be on the statute book by the summer. One hopes that its provisions will be in place in months and not years, unless of course there is a delay in bringing the Bill into force.
The Law Society pointed out that considerable funding will be required to implement the Government's proposals. It states:
"If, for example, injunctions are to be enforced by the police and criminal courts it is vital that there are sufficient funds available to ensure that there are adequate staff in both areas and that they are properly trained to deal with such offences".
The Explanatory Notes state at paragraph 99 that,
"A full regulatory impact assessment is published with the Bill".
That was on 1 December. In fact the regulatory impact assessment is a hit of a Scarlet Pimpernel—we seek him here, we seek him there, we seek him just about everywhere. The staff in the Printed Paper Office deserve a plaudit for retaining heir patience with me as I went there almost every day to find out where it was. It was finally run to earth last week and I am grateful to the Home Office for e-mailing me an advance copy, which was very helpful.
The only direct reference to training that I can see is at page 7 in considering the costs and benefits of the Commissioner for Victims and Witnesses. Staff training has been put at £30,000, for what I assume is years two and three, but as I had only the draft copy at that stage it gave the figures for year two and was blank after that.
Much more training than that will be required as a result of the Bill. The importance of training for the police, judiciary, lawyers and voluntary organisations was highlighted at Second Reading by my noble friend Lady Seccombe, among others. It has certainly been of concern to several of the organisations that briefed noble Lords at Second Reading and beyond. For example, the Women's National Commission has issued a document Unlocking the Secret: Women Open the Door on Domestic Violence. In the executive summary it makes clear that there should be regular, mandatory training for all the front-line professionals as well as specialists—the police, courts, social services, housing officers, health workers, teachers— to recognise domestic violence and to know how to help. That was repeated by Women's Aid.
My amendment is very modest when compared to what other organisations require. I have narrowed down the training requirements to a limited number of people. I accept fully that other organisations outside the House would expect the training to be much wider.
Clauses 4 and 5 state that those subject to domestic violence could themselves be subject to prosecution unless there is a very careful settlement of the cases. I shall later be bringing forward amendments in that regard. But it will be very difficult to provide training for courts and professionals to deal with such cases. Clause 6, homicide reviews, is another area where training will be required.
At paragraph 29 of its briefing, Liberty states:
"We would welcome clarification of what training will be made available for those conducting such reviews".
Clause 7 makes common assault an arrestable offence. That puts a huge responsibility on the police officer to determine whether to arrest a person. After all, it could be an accusation such as "He or she raised their fist to me just before you arrived". It places a

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huge responsibility on the officer to decide whether a common assault has taken place and whether they should arrest at that stage. Women's Aid states that training will be crucial if restraining orders are to be properly implemented.
Many organisations have drawn attention to the need for training and my amendment gives the Government the opportunity to put on record their commitment to ensuring that the measures in the Bill will be implemented only after appropriate training has taken place. I beg to move.
4 p.m.
Lord Clinton-Davis: I have a great deal of respect for the noble Baroness, Lady Anelay, as she knows, but—there is a big but—whatever the merits of her proposals, it would not be appropriate to include any of them in the Bill. The matters may or may not be addressed in correspondence by my noble friend. It may be appropriate to discuss the noble Baroness's proposals. If she is saying that the matters should be dealt with in correspondence, she should at least make that very clear. But there is not a scintilla of evidence to support the view that any of the matters to which the noble Baroness has subscribed should be included in the Bill. What she has said is very important, but the Government have a duty to make the Bill workable—in that regard, certain training may be necessary. I hope that, in outlining what the Government have in mind, my noble friend will subscribe to the view that none of the matters described so far should be included.
Lord Campbell of Alloway: I shall take a little time on subsection (3), which reflects a recent judicial decision. While I am on my feet, I wish to tell the Committee, unless I am told that I may not do so, that I propose to report the Chairman's conduct to the Procedure Committee. His conduct was not within his power; it was a total abuse of power, as he had not heard what I had to say—which had not been considered—about the noble Baroness's comments. I shall not go into the matter; I shall deal with it before the Procedure Committee. I wished merely to point out that consultation between usual channels does not include myself or other Members of this Committee.
Lord McNally: Would the noble Lord—
Lord Campbell of Alloway: Just a moment, please. I was ordered to sit down on pain of being told to leave the room. I have never been subjected to any such indignity by any chairman of any committee or by any Member on the Floor of the House. I make a firm protest that I shall continue to serve this Committee, to do my best, and not to retire as invited to do so.
Lord McNally: I am grateful to the noble Lord for giving way. I, too, was rather surprised by the Chairman's attitude. I had assumed that the Grand Committee operated as the House does. I want to ensure that the Procedure Committee is clear on that. A very important principle is at stake: we take great
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pride in being a self-regulating House, but if matters are referred to a Grand Committee where the Chairman apparently has powers greater than he would have on the Floor of the House, we have given away something rather more substantial than imagined initially. The matter should be looked at by the Procedure Committee.
The Deputy Chairman of Committees: This was an unprecedented occasion where an informal discussion was to take place. The proceedings had not formally opened; therefore, I had no particular authority to do what I have done. I do not regret what I did because I felt that it was important that we get on with the job of discussing Amendment No.1. No increased authority has been given to me, just some advice from the Public Bill Office, and that is how I interpreted that advice. I am sorry if the noble Lord, Lord McNally, too, feels that that is a little severe for the noble Lord, Lord Campbell of Alloway. For the third time, that is unprecedented leeway that I was invited to give to the Committee before the proceedings began. Now proceedings are under way. We are discussing training, about which the noble Lord did not feel inclined to talk. The matter is now closed.
Lord Campbell of Alloway: Lord Chairman, it is closed here; let the Procedure Committee decide. I do not accept your explanation for one moment.
Lord Donaldson of Lymington: Perhaps I may seek a little assistance on Amendment No.1. Subsection (3) of the amendment states:
"A member of the judiciary may not carry out their functions in relation to matters covered by this Act unless that person has followed a course of training and development covering the matters dealt with in this Act".
In a first-instance situation, that may be right. As regards appeals, might we find that the Court of Appeal, for instance, is divided into the trained and the untrained judiciary? That would be a novelty, to say the least.
Baroness Thomas of Walliswood: First, I apologise to the Minister for not being present during her opening remarks. I shall read them tomorrow in Hansard and wise myself up as to the various considerations that were taken on board. As regards Amendment No.1, my knowledge of the courts is very restricted. I know a large number of magistrates, but, on the whole, I do not know judges in other courts except in an informal way.
Magistrates faced with this Bill might undertake some training led by their clerks, who, I am sure, would draw their attention to any new and difficult issues, which, if the Bill goes through unamended, should be studied before cases come before them. There is nothing odd about that aspect. But, with my knowledge of the courts, I shall not contest what the noble and learned Lord, Lord Donaldson, said because that would be idiotic.

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The phrase that caught my eye is in subsection (1) of the new clause. It states:
"No person mentioned in subsection (2)" —
referring to police officers and those involved in the conduct of domestic homicide reviews—
"shall be required to carry out their functions".
I understand the words, "shall carry out their functions".
But I do not understand the words,
"shall be required to carry out their functions".
Who needs protection: is it the victim or the policeman'?
Baroness Howarth of Breckland: I, too, apologise for not being here at the start. I lost the meeting, but now I have found it. I, too. have some anxieties about the amendment, although it is crucial that there is training. I declare an interest as a member of the new board of CAFCASS. I have considerable experience of courts in relation to children as witnesses, as well as within the domestic and criminal courts.
It is clear that people will need training across the board, particularly in the voluntary sector where, often, they do not obtain training because they are marginalised by the Secretary of State from receiving any money. The Government often say that it should be shared, but I think that the noble Baroness knows that that does not always happen, despite encouragement.
However, I should like assurance that if the details of training were not in the Bill, the guidance would certainly contain them. That is where this belongs and where the who and the how can be thought through in some detail. Here is a particularly complex group of people, and training will be different for the different groups.
Lord Ackner: Perhaps I may make a very limited intervention on the case of judicial training. There always has been resistance among the judiciary to suggestions that it should be trained. Lord Devlin himself took the point that judges do not need training. That is an out-of-date concept. Judges of any first-instance kind may need training. That justifies the very considerable expenditure on the Judicial Studies Board. That is fully carried out.
As a judge, one is required to attend these courses. As a judge, one is required to attend a number of training courses. That particularly was the case in relation to the European human rights legislation that we took on board. With great respect to my noble and learned friend Lord Donaldson, I do not think that there is anything the matter with that. The Court of Appeal is not required to take on training, for the simple reason that it is expected to understand the law. If it needs training, no doubt the Master of the Rolls could arrange courses. I therefore see nothing wrong with subsection (3) of the proposed new clause.
4.15 p.m.
Lord Donaldson of Lymington: If accepted, the clause would go to jurisdiction. That is the problem.
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I do not disagree with my noble and learned friend Lord Ackner about the desirability of training. Nor do I disagree when he says that there is extensive training now undertaken through the Judicial Studies Board. That is thoroughly desirable, and I am sure that it will continue. No doubt, it will be broadened in the light of this Bill when it becomes an Act of Parliament.
My point is that it is a complete novelty. It is undesirable to have licensed judges in the Court of Appeal or, possibly, in the slightly lower courts. That is what this amounts to. There would be no jurisdiction in Lord Justice X's court unless he had received adequate training. It may be that, administratively, it could be arranged that he did not hear such an appeal, but that is another matter altogether. But this would mean that the man or woman had no jurisdiction, which I find strange.
Baroness Scotland of Asthal: In replying to this part of the debate, I may say that I interpreted the noble Baroness's amendment as a generic way of asking what is to be done about training. Unfortunately, the flaws in the amendment—I shall not trouble to go through them all—are such that they would have some very unfortunate consequences, as already alluded to by the noble Baroness, Lady Thomas of Walliswood, my noble friend Lord Clinton-Davis and the noble and learned Lord, Lord Donaldson. They are all correct.
The Government recognise the importance of training for those working in the field of domestic violence. Quite properly, that was raised at Second Reading. I made it absolutely clear that the Government would review all the domestic violence training available, with a view to ensuring a more consistent, multi-agency approach.
The amendment in the name of the noble Baroness and the noble Viscount. Lord Bridgeman, would place a statutory requirement for training on the police, the judiciary, and those involved in domestic violence homicide reviews. Because of the scope of the Bill and the terms of the amendment, its effects would be felt throughout the civil and criminal justice system. For example, in the absence of judges with the new training that the amendment demands, there may be delays in the issue of non-molestation and occupation orders, and criminal cases dealing with everything from common assault to familial homicide could not be heard. That would throw the listings procedure into chaos and seriously delay or jeopardise the outcome of a large number of proceedings.
At the other end of the system, as I think was mentioned by the noble Baroness, Lady Thomas of Walliswood, senior police officers would be unable to order officers to attend most domestic violence cases, along with incidents of common assault or breach of a restraining order. Similarly, domestic violence homicide reviews, which are intended to be light touch, would also become difficult.
I understand that that is not what the noble Baroness, Lady Anelay, seeks. We all acknowledge that more work is needed to ensure that training for the police and the judiciary is of the highest standard, and that work already is under way. I should like to

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reassure the noble and learned Lord, Lord Ackner, that the days when judges denied the need for training have frankly long gone. The criticism, if there is one, of the JSB now is why they do not receive more training. There is no problem about judges wanting to be trained.
The police and judiciary continue to make significant progress in training. In 2002, the Central Police Training and Development A uthority—Centrex—and the Association of Chief Police Officers published a new six-part training pack on domestic violence, and the National Centre for Policing Excellence is developing new guidelines for police handling of domestic violence cases. In addition, Her Majesty's Inspectorate of Constabulary and the Crown Prosecution Service Inspectorate will shortly publish a joint thematic review of the handling of domestic violence cases, and we look forward to any recommendations that the report makes on training.
Training for the judiciary is provided by the Judicial Studies Board, which has recognised that training is not provided consistently throughout the magistrates' courts service. In order to support universal delivery, the Judicial Studies Board has developed training materials on domestic violence for use in the training of magistrates, and is providing training for magistrates' trainers in the use of that material.
The Judicial Studies Board also provides a range of courses for judges that covers domestic violence. If and when specific legislation is introduced, the Judicial Studies Board will assess the training needs of the judiciary and make any necessary provision. Finally, a review is under way to determine how many judges are ticketed for different areas of work, after which an assessment will be made about any additional appointments that may be required to fill the gaps.
No one disputes the fact that the police and judiciary need proper training to ensure that they understand the laws they are called on to enforce, and that they do so with proper awareness of the dynamics of particular types of case. I very much take on board what the noble Baroness, Lady Howarth, said about training generally and the needs being of importance to all the agencies. We are keeping that matter very much in the forefront of our minds.
Training is an essential part of implementing new measures and making full use of existing powers, but the amendment would not improve matters. If anything, because of the way in which it is drafted, it is likely to make matters worse for the justice system and for victims themselves. For those reasons, I cannot accept the amendments.
I have the privilege of chairing the inter-ministerial group on domestic violence. I reassure the noble Baroness that we are indeed trying to work right across government to see how we can raise the profile of the issue and make sure that there is better understanding. We are working with the Department for Education and Skills, the Department of Health, the ODPM, which deals with housing, and right across the board. The broad ministerial commitment is very strong, and
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we can get the message across and make the situation better. We will look carefully at the whole issue of training. With that reassurance, I hope that the noble Baroness will feel that her amendments have done what she wanted; namely, to have the issue explored. I hope that the answers meet her concerns.
Baroness Howarth of Breckland: I would like some reassurance that guidance will be cross-cutting.
Baroness Scotland of Asthal: The inter-ministerial group is looking at the needs of multi-agency working, and is consulting carefully with all the other departments to try to ensure that we can all sing from one hymn sheet. I cannot give the noble Baroness specific assurances about guidance; she will know that it is issued by different departments. There is the Department of Health's guidance, the guidance that we would issue in the Home Office, DCA guidance and CPS guidance. We are trying to make sure that there is clarity in relation to all the guidance, and that synergy takes place, so that we all work to the same brief.
Baroness Anelay of St Johns: I am grateful for the Minister's response. She was right in her opening remarks to recognise that my invitation to the Government was to put on record a series of assurances about what steps had been taken and what was their attitude to training. I tried to make that clear in my opening remarks.
A multi-agency approach is certainly needed. The Minister referred to the inter-ministerial group. In long distant days, I served on just such a group as an also-ran—as a non-political adviser, not a Minister. I realised early on in that group that the key to success lay in the person chairing it taking ownership of it to ensure that it was driven forward.
Without sounding too cloying, I think that we have the right person to do that. I hope that the Minister stays there to do just that. Otherwise, it is a most appallingly difficult job to get different government departments to work together. They often have a reasonable meeting, only, when they go away, to find that the matter is a low priority. I recognise that it is a difficult job; I am glad that the noble Baroness is performing it; we look forward to the results.
The noble Lord, Lord Clinton-Davis, did his usual friendly act in which he takes me to task for tabling a useless amendment and says that the matter could be better dealt with by correspondence. I am looking forward to carrying on our double act in discussing the Bill. I am sure that he will not be disappointed or offended if I give my usual answer, which is to say that, as I see it, my duty is to raise issues that have been raised with me as matters of concern by outside organisations.
In particular, I cited the Women's National Commission, which wants mandatory training. I appreciate all the proper reasons advanced by other members of the Committee why the amendment should not be accepted because of its drafting—here, I

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say thank you to the Public Bill Office for the drafting. It is not its fault that it has been criticised; I gave it the wrong instructions.
Lord Clinton-Davis: Why did not the noble Baroness say at the beginning of her speech, "I tabled the amendment so that the Minister can comment on it"?
Baroness Anelay of St Johns: I said that I wanted the Government to explain what steps they had taken to ensure that there was both the budget and the staff to do the training and, at the end, I invited the noble Baroness to give various assurances. Perhaps I did not make that as clear as I should have, but I tried.
Training is vital. I was delighted to be caught between two noble and learned Lords; I hope to repeat the experience in future. At this stage, I should declare a related interest. I am indeed aware of how seriously the judiciary takes its duty to provide training, and what good training the JSB provides. Tomorrow, my husband, as a lesser mortal in the judiciary, is off to Northampton to train in family law. So far be it from me to think that judges do not train.
I am most grateful for the contributions of all members of the Committee. I shall in particular bear in mind the comments of the noble Baroness, Lady Howarth, about guidance. That is an important matter. The Minister was right to point out that every department will need to consider it, but we can deal with the Home Office. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.30 p.m.
Baroness Thomas of Walliswood Baroness Thomas of Walliswood moved Amendment No.2:
Before Clause 1, insert the following new clause—
"DEFINITION OF DOMESTIC VIOLENCE
In Part 4 of the Family Law Act 1996 (c.27) (family homes and domestic violence), before section 30 insert—
"Definition of domestic violence
29A DEFINITION OF DOMESTIC VIOLENCE
(1) Violence against a person by any other person is to be regarded as domestic violence if that person is, or has been, in a domestic relationship with that other person.
(2) In this section, "violence" means—

(a) physical abuse;

(b) sexual abuse;

(c)psychological or emotional abuse, including, but not limited to—

(i)intimidation;

(ii)harassment;

(iii) damage to property;

(iv) threats of physical abuse, sexual abuse or psychological abuse;

(v)in relation to a child, abuse of the kind set out in subsection (3).

(3) Without limiting subsection (2)(c), a person abuses a child psychologically if that person—

(a) causes or allows the child to see or hear the physical, sexual or psychological abuse of a person with whom the child has a domestic relationship; or

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(b) puts the child, or allows the child to be put, at real risk of seeing or hearing that abuse occurring,

but the person who suffers that abuse is not regarded, for the purposes of this subsection, as having caused or allowed the child to see or hear the abuse or, as the case may be, as having put the child, or allowed the child to be put, at risk of seeing or hearing the abuse.
(4) Without limiting subsection (2)—

(a) a single act may amount to abuse for the purposes of that subsection;

(b) a number of acts that form a pattern of behaviour may amount to abuse for that purpose, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial.

(5) Behaviour which does not involve actual or threatened physical or sexual abuse may be regarded as psychological abuse for the purposes of subsection (2)(c).""
The noble Baroness said: I come now to a matter which has been raised with us by many different groups; namely, the need for a definition of domestic violence as a crime. That is because no such definition currently exists. We have tried to draw up a definition that keeps within what is laid down in the Long Title, amending Part 4 of the Family Law Act 1996. and I am grateful to the Public Bill Office for its help. The noble Baroness will appreciate that when a Bill is so tightly drawn, it can be difficult to introduce an amendment of this kind. Were it completely new legislation, the task would have been much easier.
The definition we have provided in the amendment is drawn from New Zealand law and is an "off the shelf" form of words. As such perhaps it is not one that I would have advanced had I had the time to talk it over with others and start from scratch. What is set out is excellent, but I am more concerned with what is not included, in that it might cause some problems.
We are talking about defining domestic violence and violence committed within a family context or the context of a domestic relationship. It covers physical, sexual, psychological or emotional abuse, all of which are set out in detail, while subsection (3) addresses the psychological abuse of a child if the person committing the violence,
"causes or allows the child to see or hear the physical, sexual or psychological abuse of a person with whom the child has a domestic relationship".
That reflects the strong recognition among the many organisations working in this field that children can be damaged by the domestic abuse of one of their parents. However, the subsection goes on to provide that the person who suffers the abuse cannot be blamed for causing damage to the child. Again, that is an important point that was raised with us.
Subsection (4) provides a definition for a single act or, as is much more common, a pattern of repeated actions as a description of domestic violence. Finally, subsection (5) covers:
"Behaviour which does not involve actual or threatened physical or sexual abuse may be regarded as psychological abuse".
This amendment has been drafted in response to the concerns expressed by many organisations that the opportunity should be taken in this Bill to include such

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behaviour in any definition of the crime of domestic violence, and New Zealand law is fairly close in character to our own legislation.
There are three main strands to the argument in favour of attempting to set out a definition in the Bill. The first responds to the perceived problem on the part of victims and those offering them help, support and encouragement that the courts do not always understand the nature of the problem. Psychological abuse in particular is not always recognised for what it is—namely, a form of violence—and the repeat nature of the crime that is so characteristic of many cases is also not always recognised by sentencers. The result is punishment which does not always fit the crime.
I should add that certain groups are still left out of the proposed definition, groups to which the noble Baroness referred in response to my comments on the matter during our debate at Second Reading. Special attention needs to be paid to the position of members of certain minority groups, mostly women who are not only abused by their husbands or partners, but find that that abuse is supported by the community. The victims of such abuse literally have nowhere to turn. That is not reflected in the definition. At some point, it ought to be referred to. I may well return to the matter, depending on what the Minister says in response. That explanation covers what has been set out in the proposed new clause.
The second strand of justification is purely practical and was the basis of my first rationale for proposing a definition to include in the Bill. The Government are rightly concerned to reduce the incidence of domestic violence, but in order to measure something, one first has to define it. The Equal Opportunities Commission is one of several organisations to have made the point.
At Second Reading, the Minister responded to my comment about the unfortunate absence of any definition in the present Bill by pointing out how the definition of domestic violence has changed over time. She also acknowledged the problems that can be caused by the different definitions being used in various parts of public administration and confirmed that the Government are working on a broad definition of domestic violence with partners, but rejected the notion of introducing a statutory definition. I recognise the problems surrounding statutory definitions, but I am not yet prepared to yield to the Minister—in particular since we do not yet know what the government definition will be.
That leads me to the third and most fundamental strand: the lack of understanding of the essential character of domestic crime shared by individuals, society and, often, the courts. In most situations where a person is facing the threat of physical assault, the old saying has it that he or she has two options: fight or flight. As it happens, the person is usually a young male. Sometimes there may be witnesses and there may be no former connection between the assailant and the victim. The assault may be a random and one-off event.
The victim of domestic violence, in particular of domestic violence that results in serious harm, is almost always a woman. She may lack the physical or mental strength to fight. As for flight, where can she go? How can she take her children with her, yet how can she leave them behind? Domestic violence, whether physical or psychological, may be witnessed by no one except the victim and, perhaps, her children—who, as I have said, may be damaged by witnessing that violence. The victim will have a close connection to the assailant, one in which she, or he, is the weaker partner. The violence will be what is most probably part of a pattern of behaviour which reinforces that power relationship. It is those considerations which have drawn many to say that UK law should reflect what is set out in the various human rights declarations to which the UK is a signatory.
Article 5 of CEDAW—the Convention on the Elimination of all forms of Discrimination Against Women—requires states to,
"modify the social and cultural patterns of conduct of men and women with a view to achieving the elimination of prejudices and customary…practices which are based on the idea of the inferiority or superiority of either of the sexes".
In terms of the attitudes towards violence against women addressed in the Government's consultation document, that article, broadly drafted as it is, seems pretty apt.
In 1993, the United Nations produced a declaration on the elimination of violence against women, and within that declaration introduced a definition:
"violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men".
I do not want to speak at length about what some may perceive as a disagreeably feminist approach to the matter, but it is difficult not to be a feminist when so often the victims are women. For that reason, this Government in particular may well want to take a lead in the matter rather than merely following behind the changes in the definition of domestic violence referred to by the noble Baroness in her response to me.
The amendment contains no reference to the particular problem of the domination of male over female. I do not try to say that the amendment, tabled on behalf of the Liberal Democrats, is perfect, but perhaps we shall be able to improve it at later stages. That will depend on the response of the Minister. I beg to move.
Lord Campbell of Alloway: This is a welcome amendment which has been clearly explained by the noble Baroness, Lady Thomas of Walliswood. It is taken from the New Zealand law, subject to minor amendment, to provide a statutory definition. But the decision of the Court of Appeal regarding Lomas v Park published on 13 January has created an entirely new perspective for debate on this and other amendments. That decision unanimously concluded in

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a reserve judgment that the extant regime for domestic violence was wholly unsatisfactory. It further requested that Parliament consider, by amendment to this Bill, setting up an integrated court with civil and criminal jurisdiction, along with remedies, to adjudicate on domestic violence which, as a matter of principle, is to be found reflected in Amendment No.8.
It further found that, pending the setting up of an integrated court, mandatory guidance given by the courts on the operation of the parallel system should obtain in the interim, a point which also affects the proposed new clause. So on that basis, the amendment would serve alongside such guidance as a valuable staging post on the road to redressing the unsatisfactory regime.
An interim measure, pending a report and a draft Bill from the Law Commission, would be required in order to set up the court. Such is the basis on which the amendment warrants the Committee's support as an interim measure. The machinery for setting up the court cannot be devised in the form of an amendment to this Bill. It will involve a series of amendments to extant law, revision for a new mode of trial, retention of criminal jurisdiction for certain types of crime and implementation by rules. All that would be totally beyond the scope of the Bill. But the principle of establishment is expressly sought by the Court of Appeal in the Lomas v Parle decision.
During the process of gestation to achieve that Bill, the amendment will serve as a welcome and essential safeguard, albeit that I have certain reservations about subsection (5). I hope that it receives the support of the Committee.
Lord Borrie: Perhaps I may raise one or two questions about the amendment. The first two words in the title of the Bill are "domestic violence". On the face of it, therefore, it would seem a good idea to include a definition. I shall make one or two more detailed points. Although I am not an expert draftsman, what should be defined as an act of domestic violence seems to be well set out in the amendment. But although there are certain criminal offences and certain procedural remedies for criminal offences set out in the Bill, no specific offence of "domestic violence" is created. If one does not have an offence so described, then surely we would be doing unnecessary work in seeking to define it.
Clause 4 contains the most important offence of causing or allowing the death of a child or vulnerable person. A brand new criminal offence such as that, the main purpose of which was explained by my noble friend at Second Reading and is set out in the Explanatory Notes, will no doubt be discussed in considerable detail. The Committee will want to pay the closest attention to the definition of that offence. It is a new offence with penalties attached to it and, therefore, in the interests of both victims and defendants, it must be closely and carefully defined.
Other provisions on the matter of definition in the Bill are perhaps less significant. For example, the provision set out in Clause 1 for the breach of a non-molestation order makes that, for the first time, a
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criminal offence. Because it is to be a new criminal offence, very careful attention must be paid to its definition.
I could give other examples from the Bill, but there is no offence entitled "domestic violence"; it is a description given. Obviously, one wants to give it some meaning, but I am not sure that it would help to set it out in a Bill, which then becomes an Act—rigid law. To my inexpert mind, the amendment seems well drafted, but it include phrases such as, "a person who is in a domestic relationship with another person". If one includes such a phrase, one needs to include a definition of "domestic relationship", and there is not one. I do not suggest that there should be; perhaps it would be as well, in these times of changing and developing social and domestic relationships, to allow the definition to be developed over time and as the courts deal with cases.
The inclusion of a definition of "domestic violence" would make the law more rigid than necessary. Although it may help judges, social workers and others dealing with the Bill and the offences that it covers, I do not see any value in including a definition in the Bill when it is not defining an offence.
4.45 p.m.
Lord Carlisle of Bucklow: I wish briefly to follow what the noble Lord has said. Since there is no offence of domestic violence, there seems no need to include a definition of it. Subsection (1) of the proposed new clause states:
"Violence against a person by any other person is to be regarded as domestic violence if that person is, or has been, in a domestic relationship with that other person."
Immediately that requires a definition of a "domestic relationship". Until you know what a domestic relationship is, you cannot know whether the act of violence is an act of domestic violence occasioned in a domestic relationship.
We are in danger of attempting to define words that do not need definition. We all know what we mean—it is violence in a domestic surrounding. Courts know what it means. Since it is not a separate offence, I cannot see why it needs a separate definition.
Lord Desai: Not being a lawyer or a woman, I hesitate to intervene in this debate. At Second Reading, when the noble Baroness, Lady Thomas of Walliswood, asked about a definition, I tried to cite one in the White Paper. I cannot judge whether it should be in the Bill, but it is good to be clear and to be reminded what domestic violence is. We may all know what it is, but about 10 years ago none of us did. Information on the nature of domestic violence has been developed by a lot of research. We are just beginning to understand its nature, because it is complex.
As the noble Baroness pointed out, and as the definition in subsection (4) states, domestic violence is often a repeated offence, rather than a one-off offence. Secondly, it is an offence to which witnesses are difficult to find. It may be assault and battery, for example, or grievous bodily harm, but to which there

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were no witnesses, therefore the context must be clear. Thirdly—this concerns me above all else—as I mentioned at Second Reading, the notion of domestic relationships, especially in a multi-ethnic society, must be thought of completely differently.
When the publication of domestic violence literature started in the social sciences, it was very much in the context of a man/woman relationship, with or without children, in which—let us make it clear—the man was battering the woman. That was the nature of domestic violence. Then we added the effect on children, direct or indirect, and so on. But, very often in a multi-ethnic situation, especially in joint families, a variety of people commit domestic violence against a woman, some of them women. There is no straightforward gender distinction. I do not know what should be done about the situation, but if we ever have to define "domestic relationship", we will take it in the context of a larger familial relationship as opposed to just a domestic relationship.
In statistics "family" and "household" mean two different things. Similarly, "familial relationship" may have a meaning different from "domestic relationship". Whether or not the provision is included in the Bill, it ought to be set out somewhere so that people can refer to it. In that document we should err on the side of generality rather than tight specificity, as we do not know what shape domestic violence will take in future.
Baroness Howe of Idlicote: I support the inclusion of the amendment. As has been said, the offence of domestic violence has very much come to the fore over recent years. I would wager that, although the Committee may know what area it covers, much of the population does not. There is therefore a need for some definition. Having listened to the experts, I agree that the definition in this amendment may not be perfect, but the more one thinks about the matter, the more important it seems to describe the range of sexual domestic violence. I agree that domestic violence is not carried out against women only; there are plenty of examples of domestic violence against men, although they are the minority. I hope that the Minister will consider further the inclusion of some such provision in the Bill.
Baroness Howarth of Breckland: I feel somewhat ill at ease, as I do not support the amendment to include a definition of domestic violence. As a social worker and social scientist, I am aware that there would be huge temptations, in that people would believe that they had something against which they could measure cases. We have gathered statistics in this area for some considerable time, and, as some Members said, we can recognise domestic violence. In a changing society, there are dangers of getting it wrong. I have heard incidents of mothers-in-law in certain ethnic communities having the right to beat up their daughters-in-law as part of bringing them into line in the household. That is just an example, but there is a range of other issues.
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I am particularly concerned about allowing the person who has suffered abuse not to be found guilty, if a child is seriously harmed, of not bringing that harm to the attention of the authorities. That would be in direct conflict with Clause 4, which relates to two people being held responsible.
I have concerns about having definitions, as they tend to narrow attention. They conflict with other issues. We are in such an extraordinarily changing society that no sooner will we have one definition than we will need another.
Lord Renton: As the longest serving Member of both Houses and a senior Queen's Counsel, the Committee may be surprised and pleased by the silence that I have kept today. I must confess that I have serious doubts about the need for the Bill at all. Although I have great respect for the noble Baroness, Lady Thomas of Walliswood, and the noble Lord, Lord McNally, and have listened to the discussion of the amendment with much interest, I fear that it goes into too much detail by way of definition.
We must trust the courts to decide principles. We do not have the experience that the courts have in deciding whether justice should be done in one way or another. Too much of our legislation goes into too much detailed definition. For example, the amendment includes the words "domestic relationship", which is not defined here—or anywhere else, as far as I know. The courts would not have difficulty in finding whether there was a domestic relationship: husband and wife, partner and partner, brother and sister or even first cousins. People living together or spending a lot of time together are all domestic relationships. If we provide a definition in too much detail, some occasion is bound to be considered as being outside of it. So the definition would be better not made.
I could go on for a long time—I have tried to keep quiet today—but I hope that the Committee will bear that point in mind.
5 p.m.
Baroness Anelay of St Johns: I welcome the opportunity given to us by the noble Baroness, Lady Thomas of Walliswood, to debate this issue. I certainly go along with the noble Lord, Lord Desai, in believing that if we do not need a definition in the Bill, we need one somewhere—or at least an understanding of what is domestic violence.
Some members of the Committee said that the amendment narrows attention so that matters that should be excluded from domestic violence can be excluded. Today we have seen how coming to some understanding of what is domestic violence is fraught with difficulties. But that is precisely what we expect our courts to decide in each and every case before them. We have placed that heavy responsibility on them.
Whether we like it or not, a definition of domestic violence is at present used by the Home Office. If the Home Office did not have one, it would be criticised;

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because it has, we criticise it by saying that the definition is insufficient and not up to date. That definition is:
"Any violence between current and former partners in an intimate relationship wherever and whenever the violence occurs. The violence may include physical, sexual, emotional and financial abuse".
The amendment does not appear specifically to cover financial abuse.
The noble Baroness, Lady Thomas, has done us a great service by enabling us to debate the problems involved in updating the definition. As she said, there are flaws in the amendment's drafting. That is not the problem. She has focussed our attention on how difficult it is to decide what should be the definition. Members of the Committee have referred to the problem of defining a domestic relationship, whether it involves a family or a household.
The amendment starts with the circular definition that violence is to be regarded as domestic violence if a person has been in a domestic relationship, but without defining "domestic". "Violence" is defined in the proposed new clause but "domestic" is not. We must surely consider that.
I question how widely the word "domestic" should go. After all, when murder statistics are classified it is often said that most murders are "domestic" in the sense that a murder is committed by someone whom the victim knew. Already, my noble friend Lord Renton has talked about the definition of domestic violence including cousins, brothers and sisters. Some would say that that is not domestic violence. I would say that my noble friend is right to consider how widely domestic violence can extend. The noble Baroness, Lady Thomas of Walliswood, was right to avoid gender bias in her drafting; the problem is gender free.
I recollect the first interview that I had in a case of domestic violence that ended up with a conviction in the Crown Court. In that case, a gentleman was being beaten up by his mother-in-law and his wife. Both of them were smaller than he, but the mother-in-law performed a service by putting a pitchfork round his neck and putting him on the ground, so that his wife could do the rest. The noble Baroness, Lady Thomas of Walliswood, has recognised that it may be in a minority of cases that there is domestic violence against a man but that that must be covered properly, as she has done in her definition.
It is difficult to decide what kind of domestic relationship is covered. Is it only a household in which people live together? What about a long-distance relationship because of professional commitments? Is not that a domestic relationship too, even though each party might maintain and own separate homes and travel a lot? One may consider oneself, either married or unmarried, as being in a domestic relationship. A platonic relationship could even be included. As a relationship develops over the years, the sexual relationship may have gone out of it. There is so much that is difficult in drafting such a definition.
I sympathise with the way in which the noble Baroness has approached the drafting of subsection (3). She seeks to protect the victim of domestic violence
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from being held guilty for the child abuse offence described in the first paragraph of the subsection. That is a theme to which I would like to return, when we get to the offence in Clause 4 and the way in which it is dealt with in court, as set out in Clause 5. I recognise the huge difficulty in trying to absolve a victim of domestic violence from the responsibility of preventing other people suffering the same violence in the household.
I was interested to see in the Judicial Studies Board's training document, to which I referred a moment ago—the training is going on this week—that the participants would be invited to debate a preferred option of defining domestic violence. Her Majesty's judges will consider another possible definition, to test their mettle. It runs as follows:
"Domestic abuse is essentially a pattern of behaviour, which is characterised by the exercise of control and the misuse of power by one person over another person, often within the context of an intimate relationship and affects the lives of children. It can be manifested in a variety of ways, including but not restricted to, physical, sexual, psychological, emotional and financial abuse, and the imposition of social isolation".
That is not a perfect, preferred option, and one can immediately see problems with it. However, it takes us further forward, and I would be grateful if the Minister could indicate whether the Government have been made aware of that preferred option and have had the opportunity to consider it. If so, what is their reaction? If not, will they direct their mind to it in the future?
We have made a good start in the debate today, in the hands of the noble Baroness, Lady Thomas of Walliswood. We may need to return to the matter, even if the definition does not need to go into the Bill. As noble Lords have correctly pointed out, there is no offence of domestic violence in the Bill, but it is essential that we know what we are talking about, if we are to be able to say whether the Bill should go forward unamended.
Baroness Scotland of Asthal: I found the debate that we have just had stimulating. It reflects the debate that the Government had, causing us to believe that there should be no definition in the statutory form. Several Members of the Committee highlighted the difficulties of defining domestic violence in a way that will remain flexible and capable of responding to changing circumstances. I am grateful to the noble Baroness, Lady Thomas of Walliswood, for tabling the amendment. It enables us to consider the matter and justify our decision not to have a definition. I want to say straightaway that I agree with the comments made by the noble Lords, Lord Borrie, Lord Carlisle of Bucklow and Lord Renton, my noble friend Lord Desai and the noble Baroness, Lady Howarth, when they say that a definition would be misplaced in the Bill.
The issue of definition arose at Second Reading. Members of the Committee will recall that I acknowledged the concerns voiced by the noble Baroness, Lady Thomas of Walliswood, about the different domestic violence definitions in use by

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different agencies, and assured noble Lords that the Government were working with partners towards a single definition.
I should say how grateful I am for the unnecessary and unfounded compliments made by the noble Baroness, Lady Anelay, about my chairmanship of the inter-ministerial group. Members of the Committee will know that domestic violence has been an issue about which I have felt passionately since 1977. That passion has not waned. As the chair of the domestic violence inter-ministerial group, I assure Members of the Committee that it is looking at the very issue of definition, not in terms of what goes into the Bill, but to have a working model that all practitioners across the discipline can seek to use as a first-point position. I do not want to restrict a definition but to enable one, in the parameters within which we currently understand domestic violence, to be better understood by all practitioners who have to apply it.
I endorse the comments of those who have spoken about the fear of rigidity, not least because the people whom we seek to protect are the victims of domestic violence. Tragically, we are discovering that the species of domestic violence mutate far more quickly than we can keep up with in statute. That is a change. One could say that we have waited 30 years for this new piece of legislation, and we do not know how quickly we would have to amend any definition. That informs what we think.
The amendment is unnecessary. Part IV of the Family Law Act 1996 does not use "domestic violence" and, if it did so, defining it might create another hurdle that applicants for orders would have to clear. At present, parties must be "associated" according to the definitions in Section 62 of the Act, and there must be evidence of "molestation". The case law indicates that a very wide range of behaviours may be classified as "molestation" for these purposes; for example, "pester" may be included, as in the case of Vaughan v Vaughan in 1973. Conduct that does not amount to violent behaviour can fall within the category, as in Davis v Johnson in 1979. Repeated telephoning was covered in Burnett v George in 1992; the noble Baroness, Lady Thomas of Walliswood, talked about psychological issues and stalking. The courts can identify all those different species as domestic violence in its real form.
Making eligibility for an order further dependent on establishing some history of domestic violence as defined in the amendment would risk reducing the availability of orders to those who need their protection. Members of the Committee have said that there is often a pattern. It is right that the average is about 37 occasions before a woman—it is usually a woman—has the courage to come forward. However, we would obviously like, through education and better understanding, any person who suffers violence not to wait for it to be repeated, but to seek succour on the first occasion on which abuse takes place. Certainly, we would not like to have anything in the definition
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that would discourage them, so that they felt that they had to be abused on a continual basis before they were able to receive the care and attention that they needed.
I shall pick up the point of the noble Lord, Lord Desai, about larger familial relationships. They are currently covered in the Family Law Act 1996. The definition of associated person in subsection (3)(d) includes relatives. We want to add to, and not subtract from, the protection that already exists. Clause 1 of the Bill talks about criminalising a breach of a non-molestation order, so a court will already have made an order determining that some form of domestic violence or molestation has taken place, and it is the breach of that molestation order that will then be dealt with under that clause.
I think that I can take it from everything that has been said without exception, by each Member of the Committee who has spoken, that our general intent is to enhance the protection given to victims of such abuse, to bring about greater clarity of understanding and question whether that would be better dealt with in the statutory definition, and to have a general approach that would be better understood by all. Through our attempts at education and raising the profile, we seek to do that.
We hope, very soon, to launch a domestic violence campaign to help others better to understand the nature of domestic violence. We understand that the issue may start with someone being silenced and not being able to express themselves. It may then move on to what equates to a form of bullying, to get control of a person, and may gradually move on to a violent act. It sometimes starts psychologically and moves on to the physical. Making sure that there is better understanding is certainly important.
I absolutely agree with the noble Baroness, Lady Thomas of Walliswood, that we seek understanding between agencies which have to deal with the problem, so that there is clarity of purpose. I say to the noble Baroness, Lady Anelay, that we are delighted that the Judicial Studies Board is taking a role. We will continue to work with it. The Department for Constitutional Affairs, which is the lead government department under which the JSB sits (although it is a an independent body), also sits on our inter-ministerial committee. We are looking across the piece so that we get the understanding that I know that all Members of the Committee seek.
It has been a very helpful debate. It has clarified to me, if I needed further clarification, precisely why we should not have a statutory definition in the Bill.
Baroness Thomas of Walliswood: I thank everyone who has been kind enough to give the debate and my amendment such serious consideration. I shall start with the noble Lord, Lord Borrie. It is the absence of the definition of the crime that I am trying to correct by providing one. His argument circulates one way and mine circulates in the opposite direction, so I do not think that we shall find a point of contact along that line of discussion. I think that the absence of a definition is a problem, and it is not the solution.

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I cannot go through every contribution, but I noticed that some have said that there is something wrong about creating an offence. We need to know what we are talking about. The noble Baroness did not contest that. Her attitude was different from that: it was not that one should not define it, but that it should be defined in a different place. In some ways, she and I are in fairly close alliance on the matter of whether the crime needs to be defined.
I thank the noble Baroness, Lady Howe, for her support. It is true, as the noble Lord, Lord Renton, and others said, that the amendment is fairly complicated. However, I do not find "domestic" at all difficult to understand. It means living in the same house—in the same domestic situation. It therefore includes all the relationships, whatever they may be, between the people who live in that house. So it includes any kind of familial relationship—a cousin or whoever it may be—as the noble Baroness said. Battered grannies and so on can all come under it. That is the meaning of the word "domestic". I know that I have not set that out in the amendment but to me, as an amateur, "domestic" means the people living in the household and that is the way in which I interpret it.
5.15 p.m.
Baroness Scotland of Asthal: A number of noble Lords have made the point that if we are talking about the same household, the term "domestic relationships" may be too narrow a definition because a number of the relatives may not live in the same household. That is one of the problems.
Baroness Thomas of Walliswood: I understand the Minister's point and I take it in the context of what the noble Lord, Lord Desai, said about various minority communities where extremely unfortunate abuse is vented upon people by all kinds of different connections and, indeed, as I said in my opening statement, where very often the abused person cannot obtain support outside of the household for the abuse that she or he is suffering within it. I understand the point and I know that the amendment is deficient in that respect.
I thank the noble Baroness, Lady Anelay, for welcoming the amendment as a basis on which we can discuss these issues. She is quite right, the amendment does not cover financial abuse and it certainly should.
I thank the Minister for her reply which I shall read it with great care. I have sufficient experience of the noble Baroness to know that one does not necessarily always get the full import of what she is saying when listening to her. I shall read what she said with great interest to ensure that I understand it. I may continue the discussion in correspondence with her or we may bring forward another amendment which satisfies the problems raised by members of the Committee at a later stage. That will depend on how matters pan out. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Thomas of Walliswood Baroness Thomas of Walliswood moved Amendment No. 3:
Before Clause 1, insert the following new clause—
"ADDITIONAL CONSIDERATIONS, COHABITANTS OR FORMER COHABITANTS: REPEAL
Section 41 of the Family Law Act 1996 (c.27) (additional considerations if parties are cohabitants or former cohabitants) shall cease to have effect."
The noble Baroness said: Amendments Nos. 3 and 4 are directed towards the same area of the original Bill—that is, the question of occupation orders. Amendment No.3 seeks to insert a new clause which would remove from the original Bill the additional considerations that a court may have in mind when discussing occupation orders and whether the parties are cohabitants or married. In other words, you may be disadvantaged—in theory, at any rate—by the court if you are not married. That is an absolutely unsustainable position today, particularly considering the large number of people living together unmarried for many, many years.
A Member of your Lordships' House told me the other day that his son or daughter—I forget which—was about to get married, he or she having lived with their partner for seven or eight years. Many marriages do not last that long. We are in a completely different situation nowadays as regards how we treat married or unmarried people.
The second amendment goes in a slightly different direction. It is concerned with the duration of occupation orders, which do not have the same minimum duration as non-molestation orders. The amendment provides that the various orders shall last for a minimum period of six months and can be extended on two occasions for further periods of six months unless an application is made to discharge the order. In other words, it would ensure that the orders are not too short.
Currently, victims of domestic violence do not all have equal access to protection because of the legal differential regarding the nature of their relationships. That does not affect non-molestation orders, but it does affect occupation orders. An abused woman, who has directly contributed to or even fully met the costs of the family home through rent or mortgage payments for many years cannot, under present law, obtain an occupation order for more than a year simply because she is not married to the legal tenant or owner. That is a strange situation.
We should bear it in mind that this law is to apply to single-sex partnerships and we should consider what effect it will have on those. The courts may well have to say that because they are not married, but only cohabiting, single-sex partners would be discriminated against in the same way. All discrimination is unacceptable and I hope that the Minister will consider these amendments.
The matter of the duration of orders has been raised because so many women complain about their short period of effect. They must return to the court maybe every two or three months to get another order which may last for only another two or three months. They

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do not feel sufficiently protected when the orders are so short-lived. That is why we have tabled a probing amendment to provide that orders are made for six months at a time, for a total of 18 months, unless an application is made to discharge them. I beg to move.
Baroness Anelay of St Johns: The noble Baroness, Lady Thomas of Walliswood, gave the game away when she referred to the fact that many of these issues will be covered by the Civil Partnerships Bill. They will be better dealt with there, although I appreciate that she is rightly taking this opportunity to try to raise some of those issues. I understand that the Minister is to take the Civil Partnerships Bill through the House, so she is the ideal person to respond today. I shall not be dealing with it, since it is a DTI Bill. My noble friend Baroness Wilcox is the person charged with that task.
I had difficulty following the reasoning behind Amendment No. 4. I was grateful when the noble Baroness, Lady Thomas of Walliswood, explained that it is a probing amendment designed to tease out certain equality issues. She then put some of the arguments in favour of the amendment, which seemed to achieve the exact opposite of what I thought the amendment was about.
Thank goodness for the Internet, because I did not see these amendments until Friday. Had the statutes not been available online, I could not have done a thing. I looked up the Family Law Act 1996 to see the basis on which the noble Baroness is working. I am puzzled by the way in which the noble Baroness has sought to amend the duration of occupation orders, by making the period specific to six months. That does not allow for a shorter period, as does the existing law. She says that she seeks a minimum period of six months, but she has not explained why there should be no flexibility for the courts.
Why should not the court decide each individual case? A shorter order might benefit the victim of domestic violence. Victims of abuse have put it to me that sometimes there is an advantage in using a "quick fix" remedy. In a sense, it keeps the offender's eye on the horizon. Victims can apply for a further order.
I am sure that the noble Baroness is aware that courts are normally enjoined to make orders for as short a period as possible; that is their duty. The amendment also says that an extension is allowed for a further period of six months on only two occasions, rather than at will. The noble Baroness says that she seeks a minimum six-month period because she wants longer rather than shorter orders. However, her amendment would take away from the courts the opportunity to reissue orders for as long as may be necessary. I am rather puzzled about that.
I am also puzzled by the phrase,
"unless an application is made to discharge the order".
Perhaps whoever has been assisting the noble Baroness, Lady Thomas, may like to look at that again. As I read it, if one applies to discharge the order, the rest of the proposed new section cannot apply. If the noble Baroness wants to retable the amendment at Report, she may like to rejig it.
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I certainly agree that it is important to ensure that the orders are fit for purpose and last long enough. However, perhaps the noble Baroness should consider circumstances where orders may serve their purpose by being shorter than six months. But, by golly, sometimes one needs the extra armoury that the courts can keep reissuing them more than just a couple of times.
Baroness Scotland of Asthal: I echo much that the noble Baroness, Lady Anelay, said. I absolutely understand why the noble Baroness tabled Amendment No. 3. It will need consideration in the light of the proposals currently being considered under civil partnership provisions. Although I thank the noble Baroness, Lady Anelay, for giving me the wonderful task of piloting the whole of that Bill through, I may find that the DTI Minister has a considerable part to play and that mine may be the minor role. But hope springs eternal.
Clearly, it is important that the court should have regard to all relevant factors when considering whether to make an occupation order—the nature of the parties' relationship will no doubt be highly relevant. I am grateful to the noble Baroness and the noble Lord for raising this issue in relation to Section 41. In its present form, it would apply only to opposite-sex cohabitants. As I said earlier, that is something we must address.
For some of the reasons set out by the noble Baroness, Lady Anelay, I, too, have greater difficulty with Amendment No. 4. It would have the effect of standardising the length of the initial occupation order made under Sections 35, 36, 37 or 38 of the Family Law Act 1996 at six months, and would allow a court to extend the order on two occasions for a further six months when an application is made to discharge the order.
As the noble Baroness, Lady Anelay, said, at the moment, the Family Law Act 1996 provides for an initial order under those sections to be for a maximum of six months—that is, for any period up to six months. It then draws a distinction between spouses or former spouses and cohabitants or former cohabitants. For spouses, it states that the court may extend the order on one or more occasions for a further period of not more than six months. For cohabitants, one extension may be allowed for a period of not more than six months.
In general principle, I do not believe that it is right to prescribe the length of the initial occupation order as six months. The court should be free to determine the length of the order, depending on the facts of the case, and providing what it considers to be the right length of protection. The noble Baroness will know that no one case is the same as any other.
The second effect of Amendment No. 4 is to harmonise the position of spouses and cohabitants. I understand that the current provision of the Family Law Act might appear strange. However, the purpose of the distinction was to reflect the different level of commitment involved in marriage and cohabitation. I know that those relationships are very similar, but the

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noble Baroness will concede that marriage allows both partners to share property as of right. Many people who do not marry wish to keep their property rights separate. There are other provisions which, as a result of the duration of the relationship, will give one party rights in relation to property on the basis of certain conditions being met. They are two differently structured relationships.
For cohabitants, the courts may provide protection for up to a year in total. That should be sufficient for the parties to arrange suitable alternative accommodation. For married couples, where there is a lifetime commitment—or, at the beginning of the marriage, there purports to be a lifetime commitment—the courts may find instances where they consider it necessary to make a longer order in favour of the non-entitled spouse, and that should be left to the discretion of the court. If there is a need for further protection, an application for a new occupation order could be made, with the court having the opportunity to reconsider the full facts of the case.
We do not believe that the way in which the rules work at the moment is either discriminatory or unjust. It reflects the different relationships between the parties and the likely complexity of their financial and property arrangements, and allows the court to reflect that in the occupation order. I can be seduced into considering Amendment No.3, but, for those reasons, I am more resistant to the noble Baroness's lures in relation to Amendment No. 4.
5.30 p.m.
Baroness Thomas of Walliswood: I thank both noble Baronesses for their thoughtful contributions and their comments on my amendments. As I said, they are probing amendments, particularly the second one.
I am a little concerned at the Minister's response about the difference between married and unmarried partners. I have been both. In both cases, I have had half ownership of the house in which I have lived. There must be many other people in long-term unmarried associations—if that is the right term—who, similarly, share their property, for obvious reasons. One partner at least obtains half of the property tax free on the death of the other partner. Of course, that partner cannot obtain the other partner's half of the property tax free. My point is that the relationships between unmarried and married people are much less dissimilar than might be supposed.
Baroness Scotland of Asthal: I hesitate to interrupt, but reassure the noble Baroness that I was not, in any way, detracting from that fact. It is simply that the legal relationship about which the noble Baroness spoke can be different. For instance, the noble Baroness is right to say that people may share the house in joint names. That is a decision they both make.
We are considering where there is not such an expressed declaration of sharing. Perhaps the couple is unmarried and the property a previously-owned property in the name of one of the parties, but not the other. If one marries, one is deemed to give the other
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person an interest in one's property. That is the operation of marriage and the vows that should have been listened to very carefully. Then there are others who—some would say—are wise enough not to enter into that estate because they wish to protect their property from any unmerited claim made by the unassociated partner whom they have chosen judiciously not to marry.
Baroness Thomas of Walliswood: The noble Baroness described various relationships that can exist between married and unmarried people. I do not propose to go any further down that line. It seems that what we are talking about here is the balance of good, and, in terms of both amendments, where the balance should be struck. I shall read the criticisms made of Amendment No.4 by both noble Baronesses, because they seem to agree with each other. That is always a good indication that I may have got something wrong.
Lord Renton: If the noble Baroness is considering tabling the amendment again on Report, will she bear in mind that she uses the same phrase four times when it need be used only once, after which the four occasions to which it applies can be set out?
Baroness Thomas of Walliswood: I accept again the unrivalled knowledge of the noble Lord, Lord Renton, on how to draft a Bill. I do not know anyone who scares governments of any complexion more thoroughly when he gets up to query the drafting of a Bill. I yield to the noble Lord's knowledge in that respect. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 4 not moved.]
Clause 1 [Breach of non-molestation order to he a criminal offence]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No.5:
Page 1, line 13, after "existence" insert "and terms"
The noble Baroness said: We reach Clause 1 after two hours; I wonder whether we have set a record in that respect. Clause 1 inserts new Section 42A into the Family Law Act 1996, which makes breach of a non-molestation order a criminal offence. I am aware that, for the most part, the provision has been welcomed by professional and voluntary organisations, but that there are some concerns. My amendments are intended to probe the operation of the clause. I look forward to the opportunity, when we debate Amendment No. 7, to probe the whole principle of the clause and whether it should be replaced by contempt proceedings.
The maximum penalty for breach is five years. The Government have made clear their intention that the police will always be able to arrest for breach of a non-molestation order without the need for the courts to attach a power of arrest, or for the victim to apply to the civil court for an arrest warrant. Just about the only protection for the person who will be arrested is in proposed Section 42A(2), which provides that an individual would be guilty of the criminal offence only

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if he or she was aware of the existence of the order. My probing amendment would add an extra layer of protection by requiring that the person should also be aware of the contents of the order. I note that Liberty supports that approach, although it would prefer the word "content" to be used rather than "terms". I bow to its superior knowledge on such drafting.
Can the Minister confirm that the present drafting of the Bill would mean that an order would not have to be served upon the person who may be arrested, and therefore that they could be unaware of the exact content of the order? If so, will the noble Baroness explain the Government's reasons for providing that? Are there any other situations where a person can be guilty of an offence without being aware of the terms of an order? What will be the definition of "service"?
The Family Law Bar Association responded to the Government's consultation on the basis that it supported the proposal to criminalise breach of orders:
"with the caveat that we do not support the criminalisation of breaches of orders that have been made 'without notice' and which have not been served upon the defendant".
I tabled the amendment in the light of that response. I beg to move.
Lord Donaldson of Lymington: I see the point of giving the added protection of needing to have knowledge of the terms. But surely one can have a situation in which, although someone has no idea exactly what the terms of the order are, he is jolly certain that it covers what he proposes to do. Perhaps there ought to be a slightly different formulation, such as, "provided that he knows that he should not be doing it in accordance with the order". I have a nasty feeling that, at some stage, some bright lawyer will say, "He did not know about the terms", particularly if they are complex. We should not allow ourselves to get caught by that trap.
Baroness Howarth of Breckland: I support that view. I understand the difficulty as regards justice in knowing what is in an order. But given the number of cases in which I have been involved where a man has made certain that an order could not be served on him so that he did not know what was in it, in order not to meet the requirements, I am very uneasy about not having such a provision.
Baroness Scotland of Asthal: It was the concern expressed by the noble and learned Lord, Lord Donaldson, and the noble Baroness, Lady Howarth, that caused us to draft the provisions of the Bill in the way that we have. The Government's intention in framing Clause 1 was to avoid one of the problems identified by many of those who responded to the Safety and Justice domestic violence consultation paper. Respondents to "without notice" orders often go to great lengths to avoid the service of such orders.
Orders must be served in person and, by refusing to open their doors to the processors, respondents can continue to harass the applicant while truthfully claiming not to have been served with the order. This
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makes a mockery of court orders and the protection that they are supposed to provide. As the clause is currently drafted, a respondent who is aware of the existence of an order but who has evaded service or made no effort to ascertain its terms could be held to account for breaching the order.
However, a person can be found guilty of breaching the order only if the breach is without reasonable excuse. That is covered by subsection (1). This could operate, for example, to protect a respondent who cooperated with the service of an order but who, because of blindness or illiteracy, was unable to discover its terms before inadvertently breaching one of them. The circumstances of such a failure to comply would be considered by the court. We believe that this provides the safeguard intended by the supporters of the amendment.
The amendment tabled in the name of the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bridgeman, would allow respondents to non-molestation orders to evade service of the order and then to breach it with impunity on the grounds that they were not aware of its terms. I know that that is not the intention behind their amendment.
I understand entirely the concerns that have been properly expressed to ensure that justice is seen to be done to both parties and not only to the complainant. We believe that the way in which subsection (1) is currently drafted enables a person who feels that he or she has genuinely not been served with an order, and/or has been unable to ascertain its content, to make use of that reasonable excuse and to put it before a court to make a determination on it.
Baroness Anelay of St Johns: The noble Baroness is right—my noble friend and I were definitely not trying to define a situation where people could get out from under and fail to obey the terms of an order that had been properly imposed by a court, merely by evading finding out what the order was about.
Can the noble Baroness indicate whether there is any other case in English statute law where someone can be convicted for the breach of an order when they do not know its terms? Is this brand-new legislation or is it replicated from a previous statute? If the Minister cannot answer today, I would be happy for her to write to me.
Baroness Scotland of Asthal: I shall certainly look at other legislation. However. "without reasonable excuse" is a catch-all phrase that has been interpreted in other circumstances. It will enable a person who has been accused of a breach to come forward and say, "I was not served; I had no notice of it; and, even if I had had notice of it, I could not have read it". That will be a question of fact in any given case because, for instance, for those who seek to evade improperly, there would doubtless be evidence to say, "The process server came and put his foot in the door. You slammed the door shut. He shouted the contents of the order through the door. You obviously had a discussion where you could have heard it and you sought to evade it".

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It comes down to a question of fact, to be determined by the court in any given case, as to whether the person had a reasonable excuse or not and should have known about the order or not. The court will then determine whether, having that knowledge, they were improperly or wrongfully in breach of the order. I shall certainly look to see if there is any other legislation and write to the noble Baroness.
5.45 p.m.
Baroness Anelay of St Johns: I am grateful that the noble Baroness will ascertain whether this is new legislation or whether existing legislation covers a similar point. I am grateful also for her further explanation of the "without reasonable excuse" part of subsection (1). I wholly accept that it provides a route of protection. In my limited experience as a magistrate, not only are there occasions when someone may try to evade knowing what is in an order but, conversely, in some situations there is no attempt to evade finding out that there is an order but service is not affected. Even when service is available, it may be a very low priority for the police, the Post Office or whoever is delivering the order. Things can go wrong. One does not want a situation where a person who would have obeyed the order if he knew the contents—he is, in that respect, innocent—suffers the full punishment of the provision. I am grateful to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.45 p.m.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No.6:
Page 2, line 2, after "punished" insert "or dealt with"
The noble Baroness said: This amendment raises a minor probing point on drafting. I hope for an explanation to clear up something that I find puzzling. Subsection (4) provides that a person cannot be convicted on a breach of a non-molestation order where he or she has been punished for that conduct by way of contempt of court proceedings. My amendment seeks an explanation of what the Government define as "punishment" in the context of this subsection.
In a case where only a costs order is made, does that fall within the definition of "punishment"? That point has been put to me by organisations outwith this House and I want to place it on the record. I note that the Explanatory Notes contain a form of wording different from that in the Bill. There is no harm in that; we merely seek an explanation.
Paragraph 25 of the Explanatory Notes states:
"where an individual has been convicted of a breach of a non-molestation order, he cannot be punished subsequently for contempt, and vice versa".
Why is there a reference to "convicted" in the Explanatory Notes but a reference to "punished" in the Bill? It has been pointed out that the Government
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may have followed the drafting of Section 3(8) of the Protection from Harassment Act 1997, which states:
"A person cannot be convicted of an offence under subsection (6) in respect of any conduct which has been punished as a contempt of court."
Whether or not the Government are following that drafting, I would still he grateful to know whether the provision covers the situation where only a costs order has been made. I beg to move.
Baroness Scotland of Asthal: I shall try to respond to this amendment more fully than I would have done otherwise in the hope of addressing the points raised by the noble Baroness. In making a breach of a non-molestation order a criminal offence, Clause 1 retains the option for breach of an order to be dealt with as a civil contempt of court. For instance, there could be a situation where the first person to arrive at the scene of a breach is a police officer, and therefore that is how the incident is dealt with. Alternatively, the complainant may assert that there has been a breach and bring the matter back to the court, which will then adjudicate on whether there has been a breach and deal with any breach.
As the noble Baroness knows, the punishment for dealing with contempt could take a number of forms. The person could be sent to prison as a result of the contempt; there could be a suspended imprisonment order; the person could be made to make a payment; there could be any kind of response. The court may say that there has been a technical breach but that it will not impose a punishment save for costs and an additional warning. For instance, someone could put his foot over the threshold, not raise his voice and remove his foot when asked. That is technically a breach, but it might not be punished by imprisonment; it might be dealt with in another way. Thus subsection (4) provides that a person cannot be convicted of the criminal offence of breach of a non-molestation order if the same conduct has already been punished as a contempt of court. The Government's intention is to prevent someone being punished twice for the same breach.
As the noble Baroness has rightly highlighted, the same issue is dealt with in the Protection from Harassment Act 1997, where breach of an injunction taken out under Section 3 is a criminal offence. That Act took the approach that we are taking in the Bill: preventing double jeopardy without preventing separate proceedings for separate offences arising from the same incident.
The amendment would put this Bill out of step with the Protection from Harassment Act. However, I understand that the noble Baroness has sought to probe the Government's thinking. It is also unnecessary because, in practice, the Crown Prosecution Service is most unlikely to bring a case in the criminal courts if the alleged breach has already been the subject of contempt proceedings in the civil court. However, noble Lords know that the breach of the order is a separate matter from something like an offence of grievous bodily harm that may flow from it, and those would have to be separated. However, this

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is to prevent double jeopardy. For these reasons, I hope that the noble Baroness will feel that her amendment is not necessary.
Baroness Anelay of St Johns: I am grateful for that careful explanation and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No.7:
Leave out Clause 1 and insert the following new Clause—
"POWER OF ARREST
In Part 4 of the Family Law Act 1996 (c.27) (family homes and domestic violence), for section 47(2) substitute—
"(2) If the court makes a relevant order, it shall attach a power of arrest to such provisions of the order as will adequately protect the applicant or child from the risk of significant harm attributable to the conduct of the respondent."
The noble Lord said: Noble Lords may recall that when Albert was eaten by the lion, Ma's reaction was to say, "Someone's got to be summonsed". Clause 1, although under the heading "Domestic violence etc", is a small provision being trumpeted as much more than it is.
Making the breach of a non-molestation order—a civil order—a criminal offence will cause delay, waste resources and will not advance the Government's policy objectives to give further protection to the victims of domestic violence. I suggest that those objectives can be much better realised by strengthening the powers of the civil judge who made the non-molestation order in the first place. Noble Lords should always bear in mind that, before these provisions can come into effect, the person who is the victim of the conduct of the respondent has already gone to the civil court and obtained, with legal advice and assistance, a civil order from the judge.
The victim of domestic violence has at all times the full protection of the criminal law: protection against assault, against rape, and all other similar types of conduct. So a non-molestation order is no substitute for the protections that are given by the criminal law to the victims of domestic violence as they are to everyone else. But although victims report such criminal acts to the police, they will frequently withdraw their complaints or, if they go to court, fail to give the necessary evidence. If one pauses to consider why that should be, it is because wives and partners do not necessarily want to make their partners criminals and send them to prison. What they want is for the offending conduct towards them to stop. Because criminal proceedings against a partner are so frequently withdrawn, in the past the police have failed to take domestic violence as seriously as they ought. That is the reason why I said at Second Reading that it is good to learn that the police are now being trained to take domestic violence much more seriously than they did in the past.
Why therefore should it be assumed that victims who have already taken the step of going to the civil court and obtaining the required order will wish to pursue their partners for breach of that civil order in
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the criminal court? Why, in those circumstances, would they be willing to face the publicity and unpleasant atmosphere in the criminal courts to pursue the criminalisation of their partner? As I have said, all they want is for the conduct to stop; they do not necessarily want the person concerned to be sent to prison so that he can no longer support them or fulfil the maintenance order.
The first criticism made by the Government of the present civil procedure is that there is no automatic power of arrest attached to an order. Amendment No.7 would provide that a power of arrest shall be attached to every non-molestation order and occupation order made by a civil judge. Of course, it may not be necessary to attach a power of arrest to every provision contained in a non-molestation or occupation order, but it will be at the discretion of a civil judge to decide just what merits the application of the power of arrest. The amendment is worded to provide that the court shall attach a mandatory provision, a power of arrest,
"to such provisions of the order as will adequately protect the applicant or child from the risk of significant harm attributable to the conduct of the respondent".
Noble Lords will note that, unlike in the Bill, it is our view that the protection should extend not only to a non-molestation order, but to an occupation order.
The Government said at Second Reading that the police were confused about their powers of arrest. Amendment No.9 therefore makes provision for registering orders with the chief officer of police in such a way that the provisions of that order can readily be made available to an officer on the beat. Already, under the Family Law Act 1996, he is entitled to arrest on the reasonable suspicion that the order has been breached, with the provision that the arrested person must be brought before the court within 24 hours.
We argue that the contents of a civil order should immediately be made available to an officer so that, if necessary, he could radio in to check on the computer what precisely is stated in the order; that is, what conduct it actually prevents. The converse is that, as at present, unless the victim making the complaint can produce the order, the constable will have no idea what particular matter is covered by the order.
A further criticism is that contempt of court carries a maximum penalty of only two years' imprisonment under Section 14(1) of the Contempt of Court Act 1981. But that maximum is stated in the section to be subject to any other provision, so that in a specific case it would not prevent the sentence being limited to two years' imprisonment. Amendment No.10 therefore extends the power of the court to the same degree as the powers given to the Crown Court and the magistrates' court in Clause 1. In practice, it is unlikely that lengthy sentences of the kind proposed in the Bill would ever be given in either the civil or criminal jurisdiction. If the defendant is to be imprisoned for up to five years, he certainly must have committed another criminal offence such as assault to merit a sentence of that length. However, in drafting the amendments, I followed the maximum of five years' imprisonment and the same level of fine.
As I said, the amendments extend to occupation orders as well as to non-molestation orders. According to paragraph 26 of the Explanatory Notes, the Government have decided not to make the breach of an occupation order a criminal offence because,
"[a] history of violence or molestation is not a prerequisite for the grant of an order".
But occupation orders play a very important part in protecting victims of domestic violence. There is no logical reason why such a distinction should be drawn if it is thought right to go down the criminal route. It has already happened, of course: breach of a civil order against harassment was made a criminal offence by the Government in contentious legislation that they passed some time ago.
I urge the Government to think again on this principle. Making the breach of a non-molestation order a criminal offence really does nothing. The objectives can be better achieved through the civil route. The advantages are manifold. Amendment No.10, for example, contains a provision that would permit the hearing of committal proceedings, where it is in the interests of justice to do so, to be held in private. It may be far easier for victims of domestic violence to go before the judge in private, as happens in children's cases at the moment, and make their complaint—provided, as the amendment sets out, that the results of that application are fully publicised in open court, with the terms of the order, the reasons for it and so on.
The evidence provisions in the civil court are more favourable to the victim. Evidence can be given by affidavit; the judge has discretion whether to order cross-examination; and he may decide in a particular case, having regard to the circumstances of the victim, that it would not be appropriate to do so. The civil evidence rules, which permit hearsay and have other advantages, also apply. I am grateful to the noble Lord, Lord Borrie, for pointing out that I was quite wrong in suggesting at Second Reading that the civil standard of proof would apply. Where the liberty of the subject is concerned, it is virtually the criminal standard of proof that applies, even in the civil courts.
There is a great deal more speed in the civil courts. Applications can be made ex parte. There was a discussion earlier about the possibility that a respondent could avoid service of the order or service of the application for committal. But an ex parte order can be made which could result in the respondent being arrested and brought before the judge who made the order as soon as he is arrested so that whatever he has to say about the matter can be properly heard. The ability to make orders of that nature is a very useful power; they cannot be made in the magistrates' court or the Crown Court.
In civil courts, applications can be made out of hours and expeditiously. Where speed is essential to protect the victim or the children, it is possible to make an application for an order of committal even in the judge's home. Those of us who have intervened in the dining arrangements of judges know that, although it is not particularly popular, such a power can be exercised.
The judge also has a discretion, which the magistrate's court does not have—for example, not to commit a person to prison for a technical breach of the order. A magistrate's court, faced with the crime of disobedience to a non-molestation order, would be obliged to find a person guilty and to impose a punishment. But the civil judge does not have to do that. He can decide that it is simply a technical breach and that on such an occasion he would not order committal to prison.
He may also, in his discretion, have the defendant or respondent before him and give him a last chance. Magistrates cannot do that; if they find a person guilty they have to make an order of some kind. On the other hand, a judge can say to the respondent, "This is the last time you are going to do it. If you breach this order again you will be back in front of me and you know what will happen to you".
Furthermore, the judge can suspend the committal. There is a limited power to suspend sentences. The Criminal Justice Act 2003 might have extended that power a little, but it is not normally done in criminal proceedings today. It is open to a civil judge to suspend committal if he believes that it is right to do so.
Finally, if a judge is satisfied that a person has purged his contempt and given satisfactory undertakings—perhaps the relationship is finally accepted as having come to an end—he can discharge the respondent from prison. All those discretionary powers make the use of civil powers much more flexible than is proposed in the Bill.
Then there are practical matters. The papers whereby the non-molestation order was obtained in the first place from the civil court will no doubt have to be passed to the magistrates' court. If there is a breach of the non-molestation order, the matter must go to the police, who make recourse to the CPS, which then decides whether to prosecute. It may take a long time for the matter to come to court. The magistrates will then start from scratch and will have to be informed of the background and all the circumstances between the applicant and the defendant. They will have to come to a conclusion in the light of all the information that they have to learn from scratch. So the bringing of proceedings for a criminal offence are less flexible, certainly less speedy and do not add to the protection that the victim is entitled to expect.
There is much to be said for leaving the matter in the hands of the judge who made the original order. He can always tell the respondent, "If you breach this order, you will go in front of me as soon as you are arrested". That is a far greater deterrent than the possibility of appearing in front of the magistrates' court, with the possibility that the wife or partner will not give evidence against you in those circumstances, and the publicity. It is therefore a much greater deterrent.
It is in those circumstances that I suggest that the Government, in Clause 1, are doing no more than making a gesture that is of no practical use to victims of domestic violence. If there are problems in the civil courts—I do not suggest that there are—and the

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powers of the judge need to be strengthened, Amendments Nos.7, 9 and 10 would do that. I beg to move.
6 p.m.
Lord Campbell of Alloway: The noble Lord, Lord Thomas of Gresford, dealt in his most interesting speech with aspects of this parallel system which the Court of Appeal found to be unsatisfactory in Lomas v Park. I support all these amendments, on the same basis as I supported Amendment No.2. They will serve, alongside the guidance that the Court of Appeal has given in that case, as the staging posts along the road to redress of this unsatisfactory regime. The integrated court in New York is an example of the proposed new integrated court, in which both civil and criminal jurisdictions are merged. The Court of Appeal referred to that court with considerable approval. Until the proposed new court exists, the noble Lord's amendments would serve as an essential safeguard.
Lord Carlisle of Bucklow: Anyone who listened to the noble Lord, Lord Thomas of Gresford, could not be other than impressed by the force of the argument he makes. His case is really unanswerable.
Let me make three brief points. First, I agree entirely that using the civil court would mean the retention of the same judge, who would have knowledge of the facts of the case. That in itself is important. Secondly, as the noble Lord made clear, the means of getting before the courts is likely in practice to be more speedy in the civil courts than in the criminal court. Thirdly, I agree with his point that people may wish to go back to court on the breach of a non-molestation order without wishing that the person against whom they originally made the complaint should be criminalised for life as a result and in ways that may affect themselves.
There is much force in the argument of the noble Lord, Lord Thomas of Gresford. The only difficulty at the moment is that the civil courts are perhaps unwilling to use adequately the power to attach an arrest warrant at the time when the original non-molestation order is made. If, as the amendment suggests, they could be encouraged to exercise that power more frequently than they do at the moment, I cannot see what victims have to gain by making the breach of a non-molestation order into a criminal offence. For the reasons outlined by the noble Lord, Lord Thomas, they have much to lose.
Lord Donaldson of Lymington: Perhaps I may make one very small point. I am impressed by the argument of the noble Lord, Lord Thomas. It may well be that the Contempt of Court Act ought to he strengthened by altering the maximum penalty. But it would be very difficult to justify putting the breach of a non-molestation order higher than, say, contempt of court by interfering with judicial proceedings, which might have cataclysmic consequences, not only for the
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people concerned but also for a much wider public. It is a very minor point—this is a probing amendment—but I thought I should mention it.
Baroness Howarth of Breckland: Being among so many lawyers, I again feel that I am in the lion's den. I support the arguments of the noble Lord, Lord Thomas, although I recognise that the Government may not want to take such a radical step.
Many people involved in social care have long suggested more radical changes in the legal system, looking to family courts as alternatives to the split between the criminal jurisdiction and the civil jurisdiction. Clearly, one set of circumstances can be split simply by the way in which we have put our courts together.
I know that women, having taken themselves to the civil courts, find it extremely difficult to take action which criminalises their partners. Not only do they not want to do it because it may affect the fathers of their children but also because they are quite fearful. There is a range of different reasons why women do not want to take such action, from criminalisation to fear of the person involved.
The suggestion for one court, which could attach orders to give women the protection they need in one fell swoop and to where they could return to a judge with knowledge of the case, has huge merit. However, I fear that that is the kind of radical option that the Government may not yet be ready to take.
6.15 p.m.
Baroness Anelay of St Johns: Turning first to Amendment No.7, moved by the noble Lord, Lord Thomas of Gresford, I have sympathy with his objective. However, I certainly cannot support the amendment today, for two reasons. First, because I only read it on Friday, there was no way that I could get policy clearance to accept it at such short notice. Secondly, I have some problems with the drafting. I am sure that the noble Lord moved it to advance the debate on the matter of principle, rather than being wedded to the detail.
Like the noble Lord, Lord Thomas, I am concerned about delay in Clause 1 by making the breach of non-molestation orders a criminal offence. We must bend our minds to how we may reduce delay, which will benefit both parties, because they will know what is to be their situation.
I noticed that when introducing Amendment No.7, the noble Lord referred to the fact that the new clause used the phraseology,
"such as will adequately protect",
to give the court some discretion on whether it acted. As he made clear, non-molestation orders and occupation orders are not exclusively made where there has been violence or a threat of violence. They can be made on other occasions—I shall return to that.
So I was puzzled why the noble Lord had diverged so considerably from the existing provision of the Family Law Act 1996 in his proposed new subsection (2), because his amendment would remove the

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requirement for some evidence of violence or threat of violence before the power of arrest was attached. Perhaps he will reconsider that before Report—when I suspect that he will retable the amendment. After all, this is a domestic violence Bill.
I can see the initial attraction of a scheme such as proposed in Amendment No.9 for the register of orders. The noble Lord was beguiling, because he made it sound such good common sense that one ought to have such a register so that the police could readily have access to information that would make it easier for them to do their job. That point has been well made by organisations outwith this Chamber.
However, before one moved an amendment later, when one might try to test the opinion of the House, one would need some information about what administrative burden and cost that would impose and what research had been done into how effective such a register could be. That is especially true because, as I said on Amendment No.7, non-molestation orders do not necessarily come within the remit of the type of breach of order that would properly be the subject of such a register. Are all non-molestation orders to be subject to the register? If so, I dread to think how much information the police will have to wade through to reach the nugget of information that, as the noble Lord rightly said, they should be able to reach easily so that they can take proper action. So, again, I like the objective; I am not sure that the amendment delivers what the noble Lord wants.
Returning to the principle of the amendment, when I read it, I reread some of the original material that we have been sent by outside organisations. For example, I knew that the Women's National Commission had referred to the matter in its report—I shall not repeat its title, which is long; we have been there and done that. On page 17, it states:
"Women had mixed feelings about the proposal to maintain a register of injunctions and domestic violence offenders, which would work along the lines of the Sex Offenders Register. Records were of great importance, but women wanted to be able to access a register themselves"—
not just the police, the women want access too. It continues:
"Some women were frightened that the men would blame them for putting them on the register".
So there is ambivalence in some of the research on the matter.
The report continues:
"women felt strongly that the police must know whether there was a history of domestic violence when called to an incident".
It then makes a policing point that goes wider than the amendment, but which is core to the problem:
"Community police officers should have that knowledge at their fingertips".
The report then recognises that if we cannot have the continuity and level of policing that we want, at least a register of current and expired injunctions would provide that information. We will need carefully to consider what kind of register is intended under the amendment.
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I was really puzzled by Amendment No.10. When he introduced it, the noble Lord, Lord Thomas, was clear, but the amendment puzzles me for the simple reason that it refers to "an inferior court" in circumstances that make it appear that that means the county court. I think that he misunderstands the implications of that. After all, magistrates' and county courts are inferior courts. A magistrate has no power to commit in such circumstances. Because the country court is an inferior court, it would have no inherent jurisdiction. That would undermine what the noble Lord is trying to achieve by the new clause. It looks as though the noble Lord is increasing the maximum penalty for contempt from two years to five years in the superior court. That is the issue to which the noble and learned Lord, Lord Donaldson, referred in relation to the Contempt of Court Act. However, the noble Lord seems to reduce the penalty to 12 months in the inferior court. Because the county court is an inferior court, as I understand it, its jurisdiction would go down. I do not think that that is what the noble Lord intended. Perhaps I misunderstood.
Lord Thomas of Gresford: I can assist the noble Baroness by telling her that the wording is lifted straight from Section 14(1) of the Contempt of Court Act, as I recall. It had not occurred to me that "an inferior court" would refer in those circumstances to the county court, which has wider powers of dealing with contempt.
Baroness Anelay of St Johns: This is a problem that one would have to look at, because breaches of non-molestation orders are, and almost invariably will be, held in the county court under the procedure. With that recognition, my puzzlement continues a bit. Perhaps I will be enlightened at some later stage. I certainly welcome the noble Lord's attempt to address the important issue by extending the contempt procedure, but I am not sure that he is there yet.
Lord Donaldson of Lymington: The noble Baroness is entirely right. The county court undoubtedly is an inferior court, because the divisional court has jurisdiction over it. It has no jurisdiction over the superior court.
Baroness Scotland of Asthal: I thank the noble and learned Lord for that comment. He has saved me a few words, for which I am most grateful.
I want to start by telling the noble Lord, Lord Thomas of Gresford, that, although he feels that the matter has been trumpeted overmuch and is of little utility, that is not the response of those who have been subject to domestic violence. Members of the Committee know that the provisions went out to quite extensive consultation, and the respondents were overwhelmingly in favour of the proposals. However, some felt that there was a need to retain the option of enforcement through the civil courts. We have done that. Nothing in the proposals seeks to expunge the role of the civil court through the county court. Nothing in them would limit or prohibit a person going through the civil route, if they were minded so to do.

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A complaint that has for many years been a running sore with complainants is that those who have an officer come to their door seeking to assist sometimes do not have the clarity of their position sufficiently understood by the officer, in terms of whether the person can be arrested. Sometimes the fact that the complainant is able to call for assistance, so that the officer can arrest and remove the perpetrator from the scene, provides valuable succour to the complainant. Therefore, I was troubled to hear how the noble Lord described the matter. I am sure that he would not wish to cause offence to victims of domestic violence, for whom the provisions have been much sought.
With the indulgence of the Committee, I will deal with Amendments Nos.7 and 10 at the same time, as it appears that they are linked. Amendment No.7 would remove the criminal sanction from a breach of a non-molestation order as envisaged by Clause 1, and would instead retain contempt of court as the sanction for breach. Amendment No.10, as we have just discussed, would increase the term of imprisonment available to the courts for breach of non-molestation and occupation orders from two to five years.
There are a number of reasons why contempt of court is not a sufficient or effective sanction. Contempt of court is of course a very serious matter and has always been so. However, many victims with whom we have spoken have stressed to us the disdain in which the offender holds the non-molestation order—even where a power of arrest is attached to that order. We are concerned that the sanction for breach of a non-molestation order must bring home to the respondent the seriousness of that breach. That is why we wish to make breach a criminal offence.
Members of the Committee will know that a difficulty that has plagued those who have sought to address domestic violence is that there is an erroneous belief that, somehow, beating and abusing one's partner differs significantly from beating and abusing a stranger in the street. It is thought that one can beat a stranger in the street and expect to be arrested and brought to justice for assault, grievous bodily harm and so on, but there is an erroneous belief that abusing and mistreating a spouse or partner is somehow permissible and differs in nature to what is visited on a stranger. That has caused us difficulty in the system for some time.
Making breach a criminal offence would also extend the range of sanctions available to the courts to punish the offender. Contempt of court limits the sanctions to imprisonment or fine. Where a breach is a criminal offence, the courts would also be able to impose the usual range of community sentences. I listened with great interest to the comments that the noble Lord made in relation to criminal cases, but I wondered whether he had forgotten the many hours that we enjoyed together on the then Criminal Justice Bill. Sections 189 and 190 of that Act provide that, on conviction, conditions can be imposed to do with curfew, mental health, drug treatment, voluntary activities, residence and supervision. If the person does
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not comply with those conditions, a suspended sentence can take effect. Until now, it could do so only if another offence were committed.
That gives the court an opportunity to deal with the offending behaviour. Many partners who find themselves involved in domestic violence are in need of anger management, drug treatment and a whole series of other interventions that will inure to the benefit not only of that partner, but of partners who may come afterwards. Members of the Committee will know that, in the analysis of partners who kill, it is very unusual indeed if those persons have not had a series of partners whom they have abused on the way to the murder that they eventually commit. It is not simply the complainant on the day whom we have to protect, but all the other partners who may come afterwards. That should exercise our attention, because of the nature of domestic violence.
There is a separate issue of enforcement of non-molestation orders and the potential for operational confusion. Information on orders and powers of arrest is not recorded centrally and the arrangements for passing such information both within and between police forces can be inconsistent. That can be a problem if both the applicant and the respondent have moved to a new police-force area. As a result, the police may be unclear to which part of the order any power of arrest may be attached. As it stands, Amendment No.7 would not remove that potential for confusion because it does not require the power of arrest to attach to the whole of the order. Rather it specifies that it would attach to those provisions which adequately protect the applicant or child from significant harm.
Our aim is to ensure the immediate safety of the applicant and any children, and we want to underline the seriousness of any breach. That is why Clause 1 makes a breach of the order a criminal offence. We also want to ensure an effective police response, so that in all cases the police will know what powers they have when called to incidents of domestic violence where a non-molestation order is in place. So Amendment No.7 would not provide the clarity needed to enforce the order and, even when coupled with Amendment No.10, would not underline the seriousness of the breach.
I turn now to the issue of attachment to occupation orders. Noble Lords will no doubt have noted that paragraph 3(2) of Schedule 4 puts the court under a duty to consider whether a non-molestation order should be made when considering whether to make an occupation order ensuring that any necessary protection is in place. We understand that there may be cases where it is not appropriate to make a non-molestation order, but a specific duty is provided to make sure that the court is aware of the difficulty and can address it.
Amendment No.10 also seeks to allow a court to hear applications for an order of committal in private if it appears to be in the interests of justice to do so. Those noble Lords who have participated in committal hearings will know that, like criminal trials, they are generally heard in public with counsel or a

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solicitor fully robed. If one is talking about contempt, one may he considering the removal of an individual's liberty. That is something the court always takes seriously and which in the ordinary way takes place in open court. This is important to maintain confidence in the justice system, ensuring—in that time-honoured phrase—that justice is seen to be done. However, the court has the power to sit in private in certain situations, such as where the case relates to the welfare of a child or to a person suffering from a mental disorder. We believe that this strikes the right balance.
Amendment No.9 would oblige a court that made an occupation or non-molestation order under the Family Law Act 1996 to cause a certified copy of the order to be sent to the chief officer of police for the place where the applicant resides. It also imposes a duty on chief officers of police to prepare and maintain a register of such orders for use by officers under their command. I should say that the comments by the noble Baroness, Lady Anelay, on how in practice this would operate were well made.
We suggest that Amendment No.9 is unnecessary because the Government are already working to create a register of orders, a point I made clear at Second Reading in my response to the noble Earl, Lord Rosslyn. The register does not require legislation. Instead of the separate register for each police force implied by this amendment, we intend to create a single database of orders. This will deal with one of the problems raised in the responses to Safety and Justice: if an applicant travels to a different area and the respondent pursues them and breaches the order, the police in that area will not be aware of the existence of the terms of the order. A central register would give all police forces access to information about orders and with that the ability to enforce them wherever a breach occurs.
Rules of court already make provision for service of orders on the police, and we intend to look at revising them to clarify the obligations. Placing the courts under a statutory obligation to do so in primary legislation is not necessary. The effect of Amendment No.9 is also unclear as it does not specify the time frame within which courts would have to send the order. I hope that I have dealt with the issues raised by the noble Lord, Lord Thomas of Gresford.
In response to the concerns raised by the noble Lord, Lord Campbell of Alloway, which we shall discuss shortly when we deal with the amendment on integrated courts, the requirement for a court to be able to respond appropriately will not necessitate the change advocated by the noble Lord, Lord Thomas of Gresford. It is to be hoped that the way in which the provisions will be applied by all courts that deal with domestic violence will give us an integrated and appropriate approach. I should add how pleased I am that the noble Lord has stayed with us in Committee. I hope that we will have a long and fruitful association through the many days on which we will enjoy together the Bill.
The noble Lord, Lord Carlisle of Bucklow, in many ways took up the refrain on the concerns echoed by the noble Lord, Lord Thomas of Gresford. As regards
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continuity, all the provisions will continue to be in force. I take on board the comments made by the noble Baroness, Lady Howarth, and echoed by the noble Lord, Lord Carlisle of Bucklow, that some women do not wish to criminalise their husbands but wish to have the abuse stopped. It will be possible to continue to do that through the civil route. But we should also take on board that the very abusive nature of domestic violence often erodes the will of the woman, who may need the greater support offered by the criminal court as well as that of the civil court, and that an intervention of that nature may prove necessary.
Many have said that they have benefited from having a police officer come to the door to arrest and remove the assailant. The courts can apply those provisions with flexibility and speed. We do not accept that they will be longer drawn-out as a result of the procedures. We will be assisted greatly by the way in which case management is currently dealt with and the fact that the CPS is working very closely with the police and the courts to get together protocols so that we have a holistic approach to domestic violence.
I respectfully disagree with the noble Lord, Lord Thomas of Gresford. In fact there will be equal—or greater—opportunity to respond to technical breaches as a result of the new provisions in the Criminal Justice Act as ever there was in the county court. This is not least because the criminal courts are likely to have a more extensive palette from which to operate. We cannot accept the amendments.
6.30 p.m.
Lord Thomas of Gresford: I am most grateful to the Minister for her response to what has been a very interesting discussion. I am very grateful for the support of the noble Baroness, Lady Howarth, the noble Lords, Lord Carlisle of Bucklow and Lord Campbell of Alloway, and, to a limited extent, the noble and learned Lord, Lord Donaldson.
Lord Anelay has made very welcome criticisms—
Baroness Anelay of St Johns: I think there has been a reference to the gender Bill. Suddenly I seem to have changed my gender even before the Bill has been enacted. That is a worry.
Lord Thomas of Gresford: It is no longer important. I thank the noble Baroness, Lady Anelay, for her criticisms.
In Amendment No.7 I seek to get away from the necessity for proof of violence before a power of arrest is added to a non-molestation order. There are other ways of molesting people that do not involve violence—for example, excessive telephone calls, e-mails and so on—all of which should be subjected to a power of arrest.
Baroness Anelay of St Johns: The noble Lord has raised a very important point. I wondered whether that point lay behind his original argument. There is concern that how one interprets behaviour is a matter of balance. As the noble Lord says, excessive e-mails—what is excessive?—and pestering might amount to

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violence. As the noble Lord will know from his own experience, the courts have had to take careful consideration of when behaviour alleged to be excessive by one party is not so at all. There is particular concern that improper allegations of such behaviour can be made. It is a very delicate area. I am glad that the noble Lord mentioned it as we will need to consider it very carefully before returning to the subject.
Lord Thomas of Gresford: I am grateful for that contribution.
I turn to the contribution made by the noble Baroness, Lady Scotland of Asthal. I maintain that Clause 1 is a gesture that has no significant practical effect. Organisations that are concerned with victims of domestic violence may have supported the Government's plan to criminalise the breach of a non-molestation order, but the Government have been promoting the Bill. They have not trumpeted the defects, as I have outlined them, in the proposed procedure, nor have they trumpeted the advantages of strengthening the present civil powers. I am not surprised that the organisations concerned with victims are ready to seize on anything that appears to advance their cause.
The noble Baroness said that one of the problems of following the civil procedures is that, often, the victim's will has been eroded by a long series of acts on the part of a respondent who is in breach of a non-molestation order. Why should it be assumed that a person whose will has been eroded will turn up in a magistrates' court and give evidence, rather than withdraw the complaint of breach of a non-molestation order? Such people do not turn up to give evidence and support claims of assault, and so on, that have already been brought before the court.
The noble Baroness referred to the disdain that respondents had for the non-molestation order. Why do they have such disdain, if they are to be locked up, as proposed? If the non-molestation order is enforced and a person is brought before the courts for contempt and sent to prison, it is difficult to see why, within the prison walls, he should maintain such disdain. That argument carries no weight.
The Minister made a good point about sanctions. I considered whether it would be possible to include in my amendments the range of community sentences that is open to the criminal courts. It is possible, but I did not have time to do it. Between now and Report, I propose to consider whether it is possible to include in the powers of the civil judge a power not simply to imprison and to fine but to put into effect the sort of community sentence that may, in certain circumstances—not in all—be advantageous.
The other matter that the Minister mentioned was the effectiveness of the police response to civil orders. They have no clarity about powers of arrest and no clarity about the terms of the order. I seek to deal with that through the amendments, and I propose to improve those provisions, with regard to the criticisms made by the noble Baroness, Lady Anelay of St Johns.
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As for hearings in private, we in our party would be the first to demand open justice, but the provisions of the Family Law Act at present permit, as the noble Baroness said, for hearings involving children and people with a mental disorder to be heard in private, which is exactly along the lines of the amendment. Proposed new Section 58B(2) mirrors those provisions for children and people suffering from a mental disorder. It is arguable—it should be considered further—whether the victims of domestic violence should, where it is in the interests of justice, have the protection of private hearings.
If that were put to organisations concerned with the victims of domestic violence, would they support it? I am certain that they would. They know that it is the publicity of the criminal courts that deters victims from seeking the protection to which they are entitled.
As for Amendment No.9, the criticism made is that I have not gone far enough. One often hears such criticism of resolutions in Liberal Democrat assemblies. It is often said: "Your resolution does not go far enough". That is the case here. I am pleased that there is the suggestion of a central database. I did not dare to suggest it. But if the Government prefer that suggestion and are pursuing it, it would be far better than the provisions I have set out in the amendment.
Consequently, I shall adopt it in a further amendment on Report and hope that the noble Baroness will feel ready to support a better database than the one I have suggested. The proposed database will have a wider application and will make clear, wherever she may be in the country, what order and protection a victim is entitled to and where the powers of arrest of the police officers concerned will arise.
6.45 p.m.
Baroness Scotland of Asthal: I hesitate to interrupt the noble Lord, but I should make plain that we are not proposing a statutory database and therefore we do not seek any amendment to this or any other Bill. My response to the noble Lord is likely to be, "Yes, we are doing that, but not under the auspices of a statutory regime".
Lord Thomas of Gresford: We can discuss at a later stage why it should not be under the auspices of a statutory regime, which would ensure that the principle is carried out with as little delay as possible. Rules can be promulgated and brought into force at any time. It might be better to use this opportunity to lay down the framework of a central database that would cover such orders.
There is much more to be done on my part in drafting further amendments for Report. I shall return to the topic. I will consider everything that has been said on all sides. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No.8:
After Clause 1, insert the following new clause—
"INTEGRATED COURT FOR CASES OF DOMESTIC VIOLENCE
An integrated Court shall be set up having criminal and civil jurisdiction and remedies over cases of domestic violence."
The noble Lord said: The circumstances in which the amendment was tabled at the request of the Court of Appeal have already been spoken to on Amendments Nos.2, 7, 9 and 10. The only practical effective response the Committee may give to the request of the Court of Appeal is to support the amendment and to assert the principle that the integrated court should be set up. This is no occasion on which to examine a closely reasoned judgment of the Court of Appeal. Put quite simply—although it is not simple—the two jurisdictions operate in parallel; they are not mutually exclusive; they deal at diverse times with the same offence and afford disparate remedies. The noble Baroness, Lady Howarth of Breckland, said that the parallel system was not satisfactory. Some of the reasons she gave certainly square with the reasons given by the Court of Appeal.
The amendment is wholly consistent with the intention of the Bill. It is free standing of the Bill and of any amendments. There is an urgency to introduce some measure. I hope that the amendment commends itself to Members of the Committee and, in particular, to the noble Baroness, Lady Scotland. It is quite apparent that she is all too familiar with these matters. I assume that she has read the transcript of the judgment of the Court of Appeal. I beg to move.
Baroness Anelay of St Johns: I am grateful to my noble friend for tabling the amendment, giving the Government the opportunity to respond to views expressed by the Court of Appeal in Lomas v Parle, and to the views expressed by several organisations which briefed noble Lords at Second Reading.
The Women's National Commission report of its consultation exercise recorded strong support for dedicated domestic violence courts. It noted that going to court was an ordeal and that very few women were afforded vulnerable or intimidated witness status, which would have made the process of giving evidence easier. It also noted that some areas around the country have pilot specialist courts which are considered to work very well.
I was also intrigued by the response of the Family Law Bar Association—which supports my noble friend Lord Campbell of Alloway's proposal—when the matter was the subject of government consultation last year. The FLBA stated that the advantages of specialist courts are clear. First, it would provide a streamlined process that should help to address delays in listing. Secondly, a specialist court would be better placed to deal with issues around disclosure and publicity. Thirdly, the special jurisdiction would be better informed in terms of sentencing for first offences and reoffending, and could also deal with breaches of civil orders.
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Fourthly, the FLBA argues that an holistic approach would be more likely to ensure the protection of the victim and family than is the case when different issues are assigned to different courts. Fifthly, family judges are highly experienced specialists well able to deal with evidential issues arising between civil and criminal proceedings. Family courts are familiar with the kind of expert evidence presented in these circumstances; namely, evidence of the impact of domestic violence on the victim and the family.
Finally, if courts with special jurisdiction were incorporated into the family court structure, the FLBA believes that there could be a reduction in the number of hearings required, potentially providing greater continuity of approach. The association acknowledges that for the proposal to work there would have to be a commitment to create an infrastructure able to cope with the additional demands of such a scheme.
Have the Government considered fully the proposals of the FLBA and the response from the Women's National Commission? Do they have any thoughts about creating a specialist court in the future? Is it a discussion in the background that may continue? I am grateful to my noble friend for giving us the chance to have this debate.
Baroness Scotland of Asthal: I, too, am grateful to the noble Lord for providing me with the opportunity to place on record what the Government are currently doing and why I shall suggest that the amendment is unnecessary. I hope that the noble Lord will be minded to agree with me when he has heard my remarks.
The Government recognise the importance of ensuring that civil and criminal courts make consistent decisions and provide "joined-up" protection for the victims of domestic violence. Criminalising breach of non-molestation orders, as proposed in Clause 1, will ensure that future breach hearings usually will be heard in a criminal court. That should prevent the current situation whereby there could be proceedings in the civil court for breach of a non-molestation order at the same time as prosecutions in the criminal court for offences arising out of the domestic violence that caused the breach.
The amendment tabled by the noble Lord, Lord Campbell of Alloway, would require the establishment of an integrated court, with both criminal and civil jurisdictions and remedies in domestic violence cases. The Government share the noble Lord's objectives, but the effect of the amendment is somewhat less clear. For instance, it does not explain how the integrated court should be set up, how it should operate and what categories of case it would be able to deal with.
In addition, we do not think that the amendment is necessary for some further reasons. The noble Lord, Lord Thomas of Gresford, pointed out al Second Reading that the Government made a manifesto commitment to consider whether specialist domestic violence courts would offer more effective protection for victims than the current system. Specialist courts typically reserve one day a week to hear criminal

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domestic violence cases. They emphasise close co-ordination among relevant agencies, including the civil and criminal courts. Five such courts are now operating, in Leeds, Cardiff, Derby, Wolverhampton and west London.
Local agencies in Croydon are also establishing a specialist domestic violence court and are considering how it might develop into a more integrated system. The CPS and the Department for Constitutional Affairs are undertaking a full evaluation of specialist and integrated courts in fulfilment of our manifesto commitment. Once we have had that assessment, we will be able to judge how and if these courts could or should be rolled out.
I remind noble Lords of the good work that we did together in the then Courts Bill, now the Courts Act 2003. We now have the benefit of far greater flexibility and will further enable courts to operate under integrated systems. Section 4 of that Act provides for the establishment of courts boards for each area of England and Wales, which will have the specific statutory duty to scrutinise, review and make recommendations about the way in which the Lord Chancellor is discharging his general duty in relation to the Crown Court, county courts and magistrates' courts in the area. Your Lordships will remember that Section 66 provides that every judge or deputy judge of the High Court, circuit judge or deputy circuit judge and recorder shall have the powers of the district judge magistrates' court in relation to criminal and family proceedings. Obviously, that is subject to training, which we spoke about earlier.
Section 69 provides for common criminal procedure rules in the criminal division of the Court of Appeal, the Crown Court and the magistrates' court. Section 75 provides for common family procedure rules in the High Court, county courts and magistrates' courts. One can put that package together with the fact that the Children Act 1989 and the Family Law Act 1996 apply across all courts; that is the High Court, county courts and magistrates' courts. I hope that your Lordships see that we now have the tools to provide an integrated system in those areas where that would benefit the local people and is justified on the facts. I hope that that will give the noble Lord, Lord Campbell of Alloway, a little pleasure and comfort him after events earlier today.
Lord Thomas of Gresford: I attempted to send a copy of the transcript of Lomas v Park to the Minister at Christmas time. I suggested that it might make good Christmas reading for her. However, there is some rule in the Government that prevents attachments to an e-mail from being received, in case there is something scurrilous in it. It was bounced back, so I apologise that she does not have it at this time.
That judgment demonstrates the problem outlined by the noble Lord, Lord Campbell of Alloway. As some Members will not have seen the report, perhaps I may refer to the judgment in which Lord Justice Thorpe tried to discuss the interrelationship between the Family Law Act 1996 and the Protection from
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Harassment Act—it is a criminal offence to breach a civil order made under the Protection from Harassment Act. He said:
"However effectively the proceedings are managed a perpetrator may face sentence for the same act which amounts to both a breach of an injunction made in family proceedings and also a crime under the Protection from Harassment Act. Of course the sentencing courts do not share the same objective and operate in different ranges. The judge in family proceedings has to fit a custodial sentence within a range of 0-24 months. An important objective for him is to uphold the authority of the court by demonstrating that his orders cannot be flouted with impunity. Nevertheless there will be a shared deterrent objective in the punishment of domestic violence by imprisonment.
"Clearly therefore the first court to sentence must not anticipate or allow for a likely future sentence. It is for the second court to sentence to reflect the prior sentence in its judgment in order to ensure that the defendant is not twice punished for the same act. It is essential that the second court should be fully informed of the factors and circumstances reflected in the first sentence. The defendant is often publicly funded to defend the proceedings in each court and may well have different solicitors and counsel in each justice system".
That is the cost that arises if you go to both jurisdictions. The judgment continues:
"There is therefore an obligation on the first court to ensure that the basis of its sentence is fully expressed and that a transcript of its judgment is made available to the second court, as Judge Harris directed in the present case".
That is an example of having to move the papers from one court to another.
"Experience suggests that proceedings in the criminal justice system are likely to require more extensive preparation and to prove more protracted than committal proceedings in the family justice system".
That is the delay to which I referred earlier. It continues:
"Therefore the application to commit should be issued promptly after the alleged breach and listed without delay. That discipline will ensure that, if proved, the contempt would have been punished before any sentence in parallel criminal proceedings".
All the problems that I have outlined in relation to earlier amendments—or some of them anyway—are illustrated by that judgment. The noble Lord, Lord Campbell of Alloway, is to be commended for his attempt to bring that case to the Committee's notice and to table such an amendment for a joined-up court.
7 p.m.
Lord Campbell of Alloway: I thank all noble Lords who have spoken. At this hour that is all the Committee would wish me to say, save that I shall seek to consult with the noble Baroness, Lady Scotland, over the puzzle of why she says that the amendment is wholly unnecessary when the Court of Appeal says that it is precisely what it wants. I am not trying to start another argument today. We will consult, and I hope that I shall be able to devise a more acceptable form of amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos.9 and 10 not moved.]
Clause 2 agreed to.
Clause 3 [Extension of Part 4 of 1996 Act to non-cohabiting couples]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No.11:
Page 2, line 24, leave out "significant duration" and insert "such significance as to justify the making of an order"
The noble Baroness said: Amendment No.11 stands in my name and that of my noble friend Lord Bridgeman. It is supported by the noble Lords, Lord McNally and Lord Thomas of Gresford.
I have tabled the amendment to probe whether the Government's drafting of the relationship that is given the protection by this clause is appropriate. I have adopted the drafting put forward by the Law Society, whose objective is to ensure that victims of domestic violence can be given protection by the Bill even when their relationship is short-lived.
Clause 3 extends the availability of non-molestation orders to those in domestic relationships who have never co-habited or have never been married. The new category of "associated" persons will be able to apply for an occupation order under Section 33 of the Family Law Act 1996 so long as the requirements of Section 33(1) are met.
In paragraph 31 of the Explanatory Notes the Government state that the definition of the relationship in Clause 3 is intended to cover,
"a long-standing relationship which may, or may not, be a sexual relationship. bin which is an intimate and personal one".
The notes go on to say that it does not include one-night stands. I recall that, when the noble Baroness gave the helpful briefing to noble Lords on the Bill, she referred again to the fact that the Government were trying specifically to exclude the very briefest of relationships.
One then has to go back and answer what the definition actually includes, because the court will need to consider that on each and every occasion. Surely the test should not be whether the relationship is a one-night, two-night, three-night stand or whatever. The court should be able to make a decision based on the information before it that the relationship is or has been of such significance that it justifies the making of the order.
The Law Society points out that the Government's use of "duration" suggests that there is a particular length of time for which a relationship must exist before its members are given the protection of the Family Law Act. However, there are relationships that are very intense but very short in duration. Where there is violence or the threat of violence, one partner may require protection from the other, regardless, one might argue, of the actual duration of the relationship. I beg to move.
Lord Thomas of Gresford: We support the amendment. It is a question of definition. A "significant duration" is, of course, what appears to the judge to be a significant duration. That can mean anything. However,
"such significance as to justify the making of an order",
limits the interpretation to something that we can all understand. The intimate personal relationship may last a very short time but, as the noble Baroness, Lady Anelay, said—I think that I have it right this time—it can still be of sufficient significance to justify the making of an order. We see no reason why the amendment should not be accepted.
Baroness Scotland of Asthal: The Government's intention in Clause 3 was to close a significant loophole in the protection afforded by the Family Law Act 1996, by including within it non-cohabiting couples. The aim was to include within it intimate personal relationships of significant duration. That would cover long-standing relationships which might or might not be sexual in nature, but which were none the less intimate and personal. It was not our intention to include long-term platonic friends or the briefest of sexual encounters, such as one-night stands, as the Family Law Act is concerned with relationships of some standing where the opportunity for abuse and control is greater. It is that combination of abuse and control that is usually the trigger.
The provision does not mean that the court would not be able to determine for itself a significant duration on a particular set of facts. The noble Baroness and the noble Lord are right: certain relationships, because of their intensity, become significant. Although they may not be as long as others, they are still of significant duration. It is a qualitative issue that the courts will have to determine.
As drafted, the clause already assumes that the court would decide whether there was a relationship sufficiently significant to justify making the order. If the court did not judge that there was in fact an intimate personal relationship, it would not go on to make the order. The amendment attempts to spell out that element of significance in the clause. We do not believe that it adds to the clause or clarifies the way in which the court would approach the making of the order. However, I reassure the noble Baroness that the reason that "significant" and "duration" are put together is so that the court may make that determination, which may differ given the facts as presented.
The amendment has one other effect, which may or may not have been intended by the noble Baroness. By deleting the reference to "significant duration", it would be possible for the courts to make an order on the basis of the shortest relationship or sexual encounter, provided that the court considered that it was of sufficient significance. That would be a fundamental shift in the scope of the Family Law Act 1996, which deals with relationships of standing and the issues of abuse and control within them.

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Other remedies exist for those not in relationships of standing; for example, the Protection from Harassment Act 1997 and the general criminal law, where an offence has been committed. For those reasons, we are not attracted by the amendment, but we hope that the noble Baroness will feel satisfied by our response to it.
Baroness Thomas of Walliswood: The amendment seems to place importance on the significance of a relationship rather than its length. When a judge or anybody else must determine the significance of a relationship it seems unlikely that they will deem particularly significant a relationship that consists of a one-night stand. It is unlikely that, under this Act or the Family Law Act 1996, the courts will be diverted to take on a new line of business that they do not already carry out. They will continue to treat date rape or violence against a partner during a single sexual episode, with no other encounter before or after, exactly as they do today. If, on the other hand, judges must consider the significance of a relationship, they will almost inevitably consider its duration also. As I understand it, under the amendment, the significance, not the duration, would carry the main weight. That would be a significant change, but one that is entirely beneficial, not the reverse.
Baroness Scotland of Asthal: I hope that I made clear in responding to the noble Baroness, Lady Anelay, that it is both. The noble Baroness is right in saying that there is a distinction between a date-rape type of situation or a one-night stand and a relationship of some standing that brings about domestic violence. We are dealing with a different species of activity. We are trying to address a situation where two people are in a relationship of some significance for some duration, and the operation of control that comes with that duration disables one of the parties better to protect themselves from domestic violence.
Our problem is that the Family Law Act 1996 was predicated on dealing with married couples or those in quasi-marital relationships of long standing that could equate to marriage. If we enact the Bill, the court will have a panoply of options: is it a relationship of some duration, standing or moment that should be covered by this legislation; is it a more transient relationship in which someone has been abused and/or continually harassed, where the Protection from Harassment Act applies; is it a date rape or offence that falls within the usual ambit of criminal legislation, in which case all the relevant Acts that impinge on it apply?
The court now has three species from which to choose; therefore, the duration and significance of the relationship will determine whether it goes into category one—this category of domestic violence, involving a relationship of some standing; whether it is a more transient relationship that could be better dealt with under the Protection from Harassment Act; or whether it should be dealt with under criminal legislation. In this context, duration is significant.
7.15 p.m.
Baroness Anelay of St Johns: I am grateful for the support of the noble Lord, Lord Thomas of Gresford, and the intervention by the noble Baroness, Lady Thomas of Walliswood. I shall read the Minister's explanation carefully. I was interested by the way in which she rightly drew particular attention to the Family Law Act 1996 and the basis on which it works. I appreciate that one is trying to adapt legislation to new circumstances. I shall consider carefully the unintended consequences of what I am trying to achieve.
I take to heart what the noble Baroness said about the fact that the courts would have a panoply of options available and that it was the Government's intention that discretion should be available to the courts. It has been put forward by the Law Society and my first recourse will be to check with it for its reaction and then discuss the matter with colleagues. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Baroness Thomas of Walliswood Baroness Thomas of Walliswood had given notice of her intention to move Amendment No.12:
After Clause 3, insert the following new clause—
Amendment to Part I of the Family Law Act 1986
Use of recovery orders
In Part I of the Family Law Act 1986 (c.55) (child custody), after section 34 insert—
"34A USE OF RECOVERY ORDERS IN CASES INVOLVING EITHER ALLEGATIONS OF DOMESTIC VIOLENCE OR A POTENTIAL RISK TO THE CHILD
(1) If an applicant claims that their partner has abducted a child of the family, the court may grant a recovery order if the applicant already has a residence order in their name.
(2) If there is no residence order in favour of either parent, the court may grant a recovery order.
(3) The recovery order will require both parties to attend court within 24 hours of the discovery of the child, or the first working day thereafter.
(4) Before returning the child to the applicant or giving the applicant any information as to the whereabouts of the child, the police must—

(a) check their records to see whether either party has committed acts of violence;

(b) check to see whether either party is included on the register of domestic violence perpetrators;

(c)having located the child without notifying the applicant of the child's whereabouts, make enquiries with regard to the child's welfare.

(5) If records show that the applicant has a history of violence or the police have concerns about the welfare of the child if the child is returned to the applicant, the police will—

(a) not remove the child from the respondent;

(b) advise the respondent to seek legal representation;

(c) notify the court of their action immediately.

(6) If there is no record of violence and no reason to believe that the defendant or the child is at risk, the police will return the child to the applicant.
(7) Ex parte residence or contact orders should only be made if there is evidence that a party is wilfully refusing to attend court."
The noble Baroness said: I could move the amendment but I was under the impression that we were to stop at half past seven. We might have rather a long discussion on the amendment.
Baroness Scotland of Asthal: I am happy to take that helpful indication from the noble Baroness. This may
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be a convenient moment for the Committee to adjourn until Wednesday at 3.30 p. m, if that meets with the Committee's approval.
The Deputy Chairman of Committees (Lord Geddes): The Committee stands adjourned until Wednesday 21 January at 3.30 p.m.
The Committee adjourned at seventeen minutes past seven o'clock.