HL Deb 04 March 2004 vol 658 cc847-88

4.30 p.m.

Baroness Scotland of Asthal

My Lords, I beg to move that this Report be now received.

Moved, That this Report be now received.—(Baroness Scotland of Asthal.)

Baroness Anelay of St Johns

My Lords, I have given notice that I would like briefly to raise a matter of concern to me with regard to the tabling of extensive government amendments that appeared in print yesterday and today. Yesterday, we received 17 pages of amendments on mental incapacity. They require an amendment to the Long Title. The Minister kindly gave me notice that the matter might be raised on Report when she wrote to me some 10 days ago. At that stage, quite naturally enough, I was not given sight of the projected amendments; indeed, I did not see them until yesterday morning, though when I returned to my desk after the debate in this House which was completed just an hour ago they had by then appeared on my desk.

When I arrived in the House today, I found a further seven pages of government amendments, including two more amendments to the Long Title of the Bill—on this occasion, so that the Government might amend Section 58 and Part 12 of the Criminal Justice Act 2003. The Minister will anticipate that I will tease her slightly that a Bill that was wrestled from our grasp only as recently as last November is now the subject of a revision in this Bill through amendments to the Long Title.

Given that amendments that require changes to the Long Title must in themselves be significant, have the Government given consideration to recommitment proceedings on those matters? If they have not done so, will they undertake to consider that between now and next Tuesday when we are next on Report?

Lord McNally

My Lords, I associate myself with those remarks. We mentioned in Grand Committee that the Government do test the goodwill of the Opposition parties and the system of referral to Grand Committee if Bills are so substantially rewritten on the hoof as this one has been and proper opportunity for full scrutiny in Committee is not given. I warned in Grand Committee that if the Government continue to do this, it will jeopardise the experiment of Grand Committee coverage of Bills such as this one.

Baroness Scotland of Asthal

My Lords, I thank the noble Baroness, Lady Anelay, for giving me notice that she intended to raise the issue. I should also point out to the noble Lord that absolutely no discourtesy is intended. Indeed, I do not seek to test the goodwill of the Opposition parties in relation to Grand Committees. The Grand Committee procedure has worked very well. I accept that it is in accordance with best practice for government amendments to be tabled at least a week ahead of consideration.

The amendments that we are discussing will come before us next Tuesday as the noble Baroness, Lady Anelay, has mentioned. The mental health amendments were tabled last Tuesday, which is a week in advance of their consideration. However, I regret that further amendments had to be tabled yesterday—only six days in advance—and that one minor amendment was tabled today.

As the noble Baroness indicated, I wrote about the mental health amendments 10 days ago, which was 23 February, to all noble Lords who spoke at Second Reading. I stated the purpose of the amendments and invited noble Lords to contact me if they wished so to do. Nobody took advantage of that offer, so I assumed that noble Lords were content with the information that I had provided and did not deem the amendments contentious. I hoped that I had in that way shown clue and proper courtesy to all noble Lords who had participated up to that point.

On the other amendments, relating to multiple offending and intermittent custody, I have sent similar letters today. None of the amendments will be reached today, so your Lordships will have until Tuesday to consider them. I hear what the noble Baroness said in relation to recommitment, and I hope that noble Lords will feel content that I have done all that I could to ensure that proper notice was given.

I suggest that we leave these matters to the usual channels. If your Lordships are content, I invite them now to consider the amendments on Report.

On Question, Motion agreed to.

Report received.

Baroness Anelay of St Johns moved Amendment No. 1: Before Clause 1, insert the following new clause—

"CERTIFICATION OF RESOURCES No provision of this Act shall come into force until the Lord Chancellor has laid before Parliament a certificate that all necessary resources will be made available—

  1. (a) to implement the provisions of this Act, and
  2. (b) to provide any training necessary as a consequence of any provisions of this Act."

The noble Baroness said: My Lords, we made it clear that we support in general the Government's objectives in all three parts of the Bill, but we have some objections to the way in which the Government propose to translate those objectives into offences. When I prepared my speaking notes last Sunday, I was going to go on to say that the Bill was relatively short, but wide-ranging and important in its effect. It is still wide-ranging and important, but no longer relatively short, after the extensions that have been made over the past two days.

I agree with the Minister that those matters should be referred to the usual channels. She will note that my objection was not quite so much with the late tabling as that the Government are making a significant change to the long title of the Bill. I always try to speak on behalf of Back-Benchers, although they are more than able to speak for themselves—and, I am pleased to say, do so. It is always put to me by my colleagues that it is particularly difficult for Back-Benchers to come fresh to Report matters because the rules of Report do not enable them to have the same to-and-fro discussion and cross-examination of the Government's objectives as in Grand Committee. However, that will be dealt with as another matter next week.

The Bill is known colloquially as the "domestic violence Bill"; indeed, that is the name used widely by the Government in their press releases. However, its impact goes far wider than that very vital issue. It also covers the replacement of some jury trials by judge-alone trials and covers the extension of restraining orders to those who have been acquitted of any criminal offence.

So why have I returned to this issue on Report, having had a little bit of discussion on it in Committee? Because I was not satisfied with the answers given by the Government at that stage. I have tabled it again to draw attention to two major problems that flow from the Government's drafting of the Bill. First, the House has been prevented from scrutinising in full the proposals for the compensation of victims that the Government may ultimately propose as their new policy after the consultation that was launched when the Bill received its Second Reading in this House. The consultation is on compensation and support for victims of crime. Secondly, the issues of resources and the need for training will be considerable as a result of the wide changes introduced by the Bill.

I have inserted the amendment at the beginning of the Bill so that we may debate our amendments subsequently against the background of those two concerns. I do not thereby intend in any way to preempt the ability of the House to amend the Bill and introduce new provisions; indeed, I do not believe that it can have that effect, because I believe that if that had been the case when the amendment was called, that would have had to be made clear as pre-emption. Any requirements for funding or training that might be necessary as a result of any such amendments would be covered by the provisions of my amendment.

This House is in the process of scrutinising, in Grand Committee, now in Report and subsequently at Third Reading, proposals that will be only a part of the picture. After Second Reading, the Government published their consultation document on significant and potentially controversial proposals to revamp the way in which compensation for victims is funded. The Government have said that they hope to legislate in this Bill for changes that will follow the consultation exercise. Even though the consultation period allowed is only one week short of the guideline period of 12 weeks, the results will patently not be available in time to be considered here. I understand that it is hoped at the moment that the Third Reading of the Bill in this House will take place on 25 March. The first time that we will be able to consider any new clauses as a result of that consolidation exercise will be during our consideration of Commons amendments, much later this year. Earlier this year, I invited the Government to work with the usual channels to ensure that when we consider Commons amendments, we do so in such a way that proper Committee stage scrutiny can take place. Can the Minister say whether an agreement on that matter has been reached?

Secondly, I turn to the issue of resources. At the moment, we can only consider the impact of the extant part of the Bill. We shall need to return to the matter when we see what the Government insert into the Bill in another place. There will be a significant call upon resources by the implementation of the provisions of the Bill. The police, the Prison Service and the probation service are all currently overstretched and the Bill will bring extra burdens. It will also have a significant impact on voluntary agencies and statutory agencies that must implement the victim's code. No doubt, they will take on that work with good will but it will require adequate resources and, especially, adequate training to make the systems work effectively.

It is clear that, in some cases, training is not sufficiently effective for the proper application of the current law. One of the reasons why I retabled this amendment is because it has come to my notice since Grand Committee that two reports have pointed this out with clarity. A joint study by police and CPS inspectors was published last week. It found that a big leap forward in police attitudes and much work by the CPS to raise awareness of domestic abuse had not filtered down to the grassroots. The report found that frontline officers and lawyers who dealt with domestic violence were often highly dedicated. But it found that more in-depth training is required, as well as systems to examine why arrests were not made in some cases. Harriet Harman, who commissioned the report, said: The police and CPS now have the right policies, but not everyone is putting them into practice".

What reassurance can the Minister give that the Government are putting the funding, the legal aid and the systems into place to ensure that everybody puts the current policies into practice and that they are able to put the new policies into practice once the Bill is enacted and, indeed, once we find out what the Government intend those policies to be? I beg to move.

Lord McNally

My Lords, as noble Lords can see from the Marshalled List, this is a "go-it-alone" amendment by the noble Baroness, Lady Anelay. Having listened to her, I am not sure whether it is a probing amendment or a shot across the bows. Either way, I look forward to hearing the Minister's reply.

Lord Campbell of Alloway

My Lords, on recommitment, we return to day one of the Committee stage when my noble friend Lady Anelay made it plain that if substantial new clauses were brought into the Bill there should be recommitment. If I remember correctly, at that time the new clauses were concerned with using money raised from motoring offences for compensation for victims of domestic violence.

This is a totally different proposal. I attended the Grand Committee and had no idea, until this morning, that there will certainly be changes to the Long Title and so forth. I sought to support the warning of my noble friend Lady Anelay about recommittal. Unfortunately, I was deprived of the opportunity to do so and can at least do so today.

On the substance of the Bill, as I read the amendment—and I understand that my noble friend Lady Anelay maintains that I have perhaps read it wrongly—it could well delay, for example, the setting up of the integrated court at the urgent request of the Court of Appeal sought in Amendment No. 30. I am seeking an assurance from the noble Baroness that, come what may, should that amendment commend itself to the House, there will be no change to the commencement Clauses 28 and 29.

4.45 p.m.

Lord Carlisle of Bucklow

My Lords, I strongly support my noble friend Lady Anelay in Amendment No. 1. Clearly, as the amendment says, it is right that none of the Act's provisions should come into force until the necessary resources have been made available to implement them. In those circumstances it is right that, as the amendment asks, they should not come into force until the Lord Chancellor—provided that we still have a Lord Chancellor; if not, then presumably the Secretary of State for Constitutional Affairs or his or her spokesman in this House— has laid before Parliament a certificate that all necessary resources will be made available to"— as I said— implement the provisions of this Act". Consequently, it is fundamental that we should know what are the provisions of this Act. At the moment, we do not know. I follow the noble Lord, Lord Campbell, in this. I have also given the Minister notice that I proposed to raise the matter again. Before we can decide an amendment on resources, we must know the provisions of the Act.

Last year the Government introduced a consultative document dealing with changes in the criminal injuries compensation scheme. They announced that responses to the consultation should be sent in by 31 March 2004. Later, when publishing this Bill, the Government said: We propose to legislate to make the changes where necessary"— as a result of consultation on the criminal injuries compensation Bill— through amendments to the Domestic Violence, Crime, and Victims Bill". Now that we have reached Report stage, I ask the Minister—who was understandably hesitant in Committee about whether that remained the situation—whether they are sufficiently advanced in their consultation to say, "Yes; we will introduce through this Bill legislative changes that are necessary as a result of our consultation". Alternatively, perhaps they are prepared to say, "No; we accept that, in some ways, to do that when the Bill has left this House and is already in the Commons, is a parliamentary outrage. We will say now that if any major amendments to the criminal injuries compensation scheme are to be implemented, they will be introduced by means of a new Bill".

It is an important point. The decisions taken on that scheme are bound to have an effect on the resources required for it. If the Government's present proposals are accepted, there may be a substantial reduction in the resources required by the scheme. However, we cannot know what resources are required by the Bill until we know what resources will be saved or expended as a result of changes to the scheme. We have not been told what is being introduced into the Bill, and currently we do not have the opportunity to debate it.

Furthermore, one is not encouraged by the fact that, as the noble Baroness, Lady Anelay, said, we are faced with the introduction into the Bill of a health clause that has absolutely nothing at all to do with domestic violence and victims. It is to do with the amendment of Schedule 12, I think, to the Criminal Justice Act 2003, the provisions over intermittent custody, and it deals with how one assesses the period that people have spent in prison when they have had consecutive sentences. The Minister cannot possibly suggest—I know she will not—that that has anything to do with domestic violence at all. That is a change in the general law of this country. What is the effect of that change going to be? Will we be in a position to resource that change? Is it something that will cost a lot of money? We need to know all these matters before we know what resources are available for the implementation of this Bill.

To say, with great respect, that it was published and you have until Tuesday to consider our proposals, ignores the fact that the whole of the committee stage of these changes has been removed, and that on Tuesday we will be at Report stage. I think it is already too late to put down amendments for Tuesday. I look to the noble Baroness, Lady Anelay, who is the fount of all knowledge in these matters, to shake her head or not; apparently it is not too late but I suspect it has to be done before this House rises tonight. How can we amend something we have just been shown? It has nothing to do with this Bill. Is the explanation that since it can be debated at Report stage in the Lords on Tuesday, we need not have a Committee stage at all?

Worse still, so far as the Criminal Injuries Compensation Scheme is concerned, because the earliest that amendments can be introduced is in the House of Commons. The Government say that the Bill will come back here as an amended Bill, but, as I understand it, the only right of this House will be to debate the Commons amendments rather than having a full Committee stage on what may be some highly contentious proposals. My noble friend Lord Campbell mentioned some of these proposals; for example, the idea that you surcharge everyone for a speeding offence so as to provide a pool of money for the Government to pay out as compensation to people who are the victims of crime of a totally different nature.

These are contentious issues. The Minister knows this; she knows the views of the present board on the matters proposed, but in the hope of keeping myself within the orders of this House and within the terms of order of the amendment to which I am speaking, I limit myself at this stage to saying that it is necessary to know what is proposed to be in this Bill so that we know what resources are needed, and we should not implement a Bill until we know what those resources are.

Lord Mayhew of Twysden

My Lords, the Minister will address the speeches which we have heard already on this amendment with her customary and formidable charm, but it will not be enough unless she can deal, point by point, with the very serious issues that have been raised in these speeches.

I intervene only briefly to support the amendment of my noble friend on the Front Bench. It is quite helpful, I hope, just to call to mind the Government's handling of the Human Rights Bill. They said that they wished to make the convention on human rights part of' our domestic law, and, in order to save Parliament the frustrated effort of legislating domestically in a sense that would be struck down later for breach of the human rights convention, they said that they would also introduce as part of that Bill the provision that the relevant Minister shall certify that there is compliance. That was very sensible.

What is being asked for here is a certificate that something that would be similarly frustrating and a waste of time will not occur. Many provisions in this Bill call for training. What is the purpose of legislating for various provisions that need training when we are not sure that there will be the money available to provide that training? It is very much better that such a provision should not come into force until we have a certificate that the money will be available. It would cause a lot of damage, and that can so very easily be avoided.

I know that I shall receive a formidably charming reply. However, I very sincerely hope that there will be more to the reply than mere charm.

Baroness Scotland of Asthal

My Lords, the noble and learned Lord seeks to scupper me by using his own charm. I shall try to give as frank and as open a response as I can in relation to the various matters that have been raised.

We are still consulting on the measures about which the noble Lord, Lord Carlisle, and others have spoken. The noble Lord, Lord Carlisle, will remember, as he has intimate knowledge of and concern and interest in the Criminal Injuries Compensation Board, that the proposals included in the consultation paper in relation to the Criminal Injuries Compensation Board are very limited. There was concern prior to the issue of the consultation paper that there might be a wholesale very substantive review of the structure that was being advocated for the Criminal Injuries Compensation Board. However, I remind the House that we are now talking about three very discrete areas. Those issues are still out to consultation.

Lord Carlisle of Bucklow

My Lords, I hope that I may interrupt the Minister's speech to say that of course I accept that the scope of what was at one time intended to be consulted on has been reduced substantially. However, I think that the Minister would agree, for example, that injuries incurred in the course of work constitute a major and important part of the scheme.

Baroness Scotland of Asthal

My Lords, I certainly agree with the noble Lord. Not only do we seek comment on those issues but I am talking to a number of different bodies about the concerns that they have and their alternative proposals. When we dealt with the matter in Committee, I tried to make absolutely clear that this is an open and proper consultation. I cannot pre-empt what its results may be. Noble Lords will know that a variety of consequences may emerge, one of which may be no change. However, I cannot say what will emerge. The usual channels have not reached a decision on recommitment. Therefore, I am not able to assist noble Lords on that matter.

The Title of the Bill refers to domestic violence. However, when the matter was first mooted, the noble Baroness, Lady Anelay, teased me about the Title and said that it referred also to crime and victims. Therefore, the issues that have been raised are not outwith the scope of the Bill.

I say to the noble Lord, Lord Campbell of Alloway, that the amendment tabled in the name of the noble Baroness would prevent any provision of the Bill being implemented until my noble and learned friend the Lord Chancellor had laid a certificate before Parliament that all necessary resources would be made available to implement the provisions and to provide any necessary training. If the noble Baroness's amendment were accepted, I would not be in a position to accede to the kind invitation of the noble Lord, Lord Campbell of Alloway, in relation to exempting two provisions.

I reiterate what I said in Committee. I emphasised the importance the Government attach to this Bill and the fact that the Government are committed to ensuring that sufficient resources are available before it is commenced. I believe that in Committee I reminded your Lordships what is included in the regulatory impact assessment where we set out the estimated total annual cost of the measure to be about £40.8 million, and the set-up costs.

The Bill will be implemented as and when the necessary resources are available to do so, but so far as I am aware it is unnecessary and, indeed, unprecedented to require a Minister to certify that before commencement. I also indicated that it was more proper for these matters to be considered by the other place. The noble and learned Lord, Lord Mayhew, invites me to issue the equivalent of a Human Rights Act certificate in relation to resources. It is an innovative idea, but not one that we have used thus far.

I seek your Lordships' indulgence to give some information on the wider issue of resources. When we debated the amendment on child contact, tabled by the noble Baroness, Lady Thornton, on 28 January I said I would come back to the issue of implementing the new definition of harm and the new forms to highlight domestic violence. I am pleased to report that my noble and learned friend Lord Falconer of Thoroton has confirmed that he will now put in train the necessary changes to the Family Proceedings Rules, court forms and IT systems and any additional training required, so that the new definition of harm and new forms are in place by January 2005. From that date, for all applications for orders under Section 8 of the Children Act 1989—regarding contact, residence, prohibitive steps and specific issues the new definition of harm and the new forms will be used. I intended to give your Lordships a little pleasure by saying that and I hope the noble and learned Lord, Lord Mayhew, will not think that I am trying to be unnecessarily charming.

Those changes, taken together with the Children Act sub-committee guidelines on how courts should handle contact applications where domestic violence is alleged, will significantly enhance the ability of the courts to ensure that contact is awarded only in cases where there is no ascertainable danger to either the child or the parent. The new arrangements will give the courts the ability to consider all the issues, make findings of fact where necessary and then decide what best meets the child's needs in individual cases.

Following divorce or separation, we want to encourage contact between children and parents where it is safe for all family members. Matters relating to contact generally are best settled away from the courts, other than when there are allegations of domestic violence or other issues of high conflict. Later this month, my right honourable friend the Minister for children, young people and families, Margaret Hodge, expects to publish the Government's response to the Children Act sub-committee report Making Contact Work. That response will include a range of proposals to help more parents settle issues of contact without going to court.

Moving on to the question of training, there was a substantial discussion on the importance of training in Grand Committee. I made it clear then that the Government recognise the importance of training and will be reviewing all the domestic violence training available with a view to ensuring a more consistent, multi-agency approach. I also set out in considerable detail the training arrangements for the judiciary and the police in respect of domestic violence. I do not believe that it is necessary to require the Lord Chancellor to certify that sufficient resources will be made available to cover the training needs of the judiciary arising from the Bill.

Your Lordships will be familiar with the way in which the Judicial Studies Board undertakes the appropriate training for new Acts and other matters and they have always rightly been commended for the excellent work that they do. The Lord Chancellor will assess the training needs for the judiciary as a matter of course and ensure that they are adequately provided for when the Bill is implemented. The magistracy will now have the benefit of much more guidance and assistance.

I hope that I have fully answered the issues raised by the noble Baroness, Lady Anelay, and the noble Lord, Lord McNally, and that it is an answer with which they can feel a modicum of contentment.

5 p.m.

Baroness Anelay of St Johns

My Lords, I am grateful for the support of my noble friends. The Minister says that the Government are still consulting. That is understandable, because we know the length of the consultation period that was published. She also says that there is no decision, as yet, on recommitment with regard to the specific matters that were addressed by myself and my noble friend Lord Carlisle of Bucklow—the new policies for funding assistance to victims. I have to say—using the language of this House—it is disappointing that no decision has yet been reached, but I hope that firm discussions are taking place in the background.

My noble friend Lord Campbell of Alloway raised a proper question about whether there will be a delay in the implementation of proposals if my amendment were to be added to the Bill. In a sense, the Minister gave him two answers—to say yes, there would be a delay, but she then said that the Government do not normally introduce legislation anyway until the resources are available. So she seemed to be saying t hat there would not be any more delay than usual, because she properly made the point that the Government introduce parts of Bills as and when it is appropriate— when there are resources or there has been the appropriate training to put those parts of the Bill in place. I think the noble Baroness was agreeing with the sentiments of my amendment, even though she did not wish to do so, because she then went on to say that my amendment was unnecessary—because it is what would happen anyway—and unprecedented.

Much of what the Government are doing at the moment appears to be both "unnecessary" and "unprecedented". The noble Lord, Lord McNally, put it very succinctly when he said he did not know whether this was a probing amendment or whether I intended a shot across the bows. I assure him it is a shot across the bows, which will not surprise the noble Baroness, given earlier conversations. Therefore, in that sense—with a great deal of courtesy to the noble Baroness—I say that, although it is only a shot across the bows, I do intend to seek the opinion of the House.

5.6 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 50; Not-Contents, 92.

Division No. 1
Alton of Liverpool, L. Kingsland, L.
Anelay of St Johns, B. Laird, L.
Attlee, E. Lucas, L.
Bridgeman, V. Luke, L.
Brooke of Sutton Mandeville, L. Lyell, L.
Brougham and Vaux, L. McAlpine of West Green, L.
Byford, B. MacGregor of Pulham Market, L.
Campbell of Alloway, L.
Carlisle of Bucklow, L. Mackay of Clashfern, L.
Maginnis of Drumglass, L.
Cope of Berkeley, L. [Teller] Marlesford, L.
Craigavon, V. Mayhew of Twysden, L.
Denham, L. Northesk, E.
Dundee, E. Norton of Louth, L.
Eden of Winton, L. Park of Monmouth, B.
Elton, L. Patten, L.
Erroll, E. Reay, L.
Fookes, B. Renton, L.
Fowler, L. Seccombe, B. [Teller]
Freeman, L. Selborne, E.
Freyberg, L. Skelmersdale, L.
Glentoran, L. Stevens of Ludgate, L.
Hanham, B. Stewartby, L.
Hanningfield, L. Strathclyde, L.
Howe of Aberavon, L. Thomas of Swynnerton, L.
Jenkin of Roding, L. Ullswater, V.
Acton, L. Farrington of Ribbleton, B.
Ahmed, L. Faulkner of Worcester, L.
Amos, B. (Lord Privy Seal) Filkin, L.
Andrews, B. Gale, B.
Archer of Sandwell, L. Gavron, L.
Ashton of Upholland, B. Gibson of Market Rasen, B.
Bach, L. Goldsmith, L.
Bassam of Brighton, L. Grenfell, L.
Blackstone, B. Grocott, L. [Teller]
Blood, B. Harrison, L.
Borrie, L. Haskel, L.
Brooke of Alverthorpe, L. Hayman, B.
Brookman, L. Hollis of Heigham, B.
Brooks of Tremorfa, L. Howarth of Breckland, B.
Burlison, L. Howells of St. Davids, B.
Campbell-Savours, L. Hoyle,L.
Carter, L. Hughes of Woodside, L.
Chester, Bp. Hunt of Kings Heath, L.
Christopher, L. Irvine of Lairg, L.
Clarke of Hampstead, L. Janner of Braunstone, L.
Clinton-Davis, L. Jay of Paddington, B.
Cohen of Pimlico, B. Jordan, L.
Corbett of Castle Vale, L. Judd, L.
Craig of Radley, L. King of West Bromwich, L.
Crawley, B. Kirkhill, L.
Davies of Coity, L. Lea of Crondall, L.
Davies of Oldham, L. [Teller] Lipsey, L.
Dean of Thornton-le-Fylde, B. McIntosh of Hudnall, B.
Desai, L. MacKenzie of Culkein, L.
Donoughue, L. Mackenzie of Framwellgate, L.
Dubs, L. Marsh, L.
Evans of Parkside, L. Masham of Ilton, B.
Evans of Temple Guiting, L. Massey of Darwen, B.
Falconer of Thoroton, L. (Lord Chancellor) Merlyn-Rees, L.
Mishcon, L.
Pendry, L. Symons of Vernham Dean, B.
Pitkeathley, B. Temple-Morris, L.
Plant of Highfield, L. Thornton, B.
Puttnam, L. Triesman, L.
Ramsay of Cartvale, B.
Rooker, L. Turner of Camden, B.
Sawyer, L. Warner, L.
Scotland of Asthal, B. Weatherill, L.
Sewel, L. Whitaker, B.
Sheldon, L. Wilkins, B.
Simon, V. Williams of Elvel, L.
Stone of Blackheath, L. Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.17 p.m.

Baroness Thomas of Walliswood moved Amendment No. 2: 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: My Lords, in moving Amendment No. 2, I shall speak also to Amendment No. 3, which is grouped with it. Amendment No. 2 is identical to an amendment tabled in Grand Committee and it has been overtaken by an amendment put forward by the Minister.

In Grand Committee, in replying to me, the Minister said that she could be seduced into accepting the amendment. When we subsequently had a meeting with the noble Baroness and her department, I asked her what that would require from me. She said, "Wait and see". In effect, we have the same amendment with a marginal difference in the wording and, for that reason, I can assure the noble Baroness that I shall not press the amendment.

Amendment No. 3 is slightly different. It is also very similar to an amendment that we moved in Grand Committee. However, we took on board some of the concerns that the Minister and the noble Baroness, Lady Anelay, raised at the time and we have tabled a revised amendment using the current wording under Section 33 of Part IV of the Family Law Act, which refers to persons who are or are not entitled, thus slightly limiting the impact of the amendment.

The purpose of both amendments, whatever their form, was to remove some of the discrepancies in treatment in respect of the granting and length of occupation orders, which depend upon whether the people involved in a domestic case have been married or not married. At that time, I put forward the case that it was incongruous to distinguish so heavily between married and unmarried couples because, if for no other reason, so many children are born out of wedlock—that may or may not be undesirable but this is not the moment to make such a judgment—and many unmarried couples have shown a great level of commitment to each other.

In the second part of the Minister's Amendment No. 7 there is a response to my original amendment. Therefore I shall not discuss my amendment at great length. It is very similar to the one that I tabled in Grand Committee. I await the explanation of the Minister's amendment and how it impacts on those that we have tabled before deciding what to do with the amendment. I beg to move.

Baroness Scotland of Asthal

My Lords, I am most grateful for the way in which the noble Baroness has spoken to her amendment. She needed to do nothing more to seduce me into agreeing with her other than to use the eloquence that she used on the previous occasion.

I also agree with the noble Baroness, Lady Anelay, that Section 41 needs to be considered in the light of a proposal currently being considered under the civil partnership provisions. Your Lordships will see from the Marshalled List that I propose a similar government amendment, Amendment No. 7, which will repeal Section 41.

I believe it would be helpful if I set out the Government's reasons for tabling Amendment. No. 7, which removes the need for Amendment No. 2. As your Lordships will see, we seek to make further changes to the Family Law Act 1996 which we believe are necessary as a result of the repeal of Section 41. In accordance with the kind invitation given to me by the noble Baroness, Lady Thomas, I shall take a little time to explain exactly why and how we have done this, not only for those in the House, but it may also be of interest to others who may come to scrutinise the Bill.

The courts are already obliged to consider a number of issues when dealing with applications for non-molestation or occupation orders. Depending on the type of order sought, they must consider whether the parties before them are associated persons within the definition of the Act; whether the individuals have the legal entitlement to occupy the dwelling house by virtue of a beneficial estate, interest or contract, or any enactment giving them the right to remain in occupation; whether there has been evidence of molestation; and whether there is a need to secure the health, safety and well-being of the applicant and any relevant child. Those issues are comprehensive and objective. They relate to the parties' status and relationship to each other, their rights in relation to the dwelling house and evidence of molestation.

Section 41, however, asks the court, when considering the parties' relationship, to look at a couple—of course, an opposite-sex couple only because same-sex couples cannot marry—and to draw conclusions as to the parties' relationship because they have not married or sought to marry.

In light of the changes we have made to the definition of cohabitants and former cohabitants, to ensure that same-sex cohabiting couples are treated in the same way for the purposes of the Family Law Act 1996 as opposite-sex cohabiting couples and given the proposals in the forthcoming Civil Partnerships Bill, we believe that Section 41 no longer works. For those reasons we believe that it is right to repeal Section 41.

Section 41, of course, deals with cases where the courts are required to consider the nature of the parties' relationship. In practice that probably bites only in Section 36(6)(e) of the Family Law Act, which deals with occupation orders where one cohabitant or former cohabitant has no existing right to occupy the family home and paragraph 5(b) of Schedule 7, which deals with the transfer of tenancies and provides for the court to have regard to Section 36(6)(e) where the parties are cohabitants and only one of them is entitled to occupy the home by virtue of the relevant tenancy agreement. Section 36(6) sets out a comprehensive set of circumstances that the court shall have regard to, including subsection (6)(e) which states: the nature of the parties' relationship". When considering the removal of an individuals from their home, it is critical that the courts should be able to take into account all the aspects of a couple's relationship. By removing Section 41, I am concerned that the courts will suppose it is not part of their remit to consider the commitment the couple have or have not given to each other. It is true, of course, that the courts may consider this aspect. After all, the wording is sufficiently wide to enable them to do so.

However, I do not wish to plant the seed of doubt into the court's mind that the level of commitment, or lack thereof, is no longer important. For example, in those cases where the parties have not married, or—if the Civil Partnership Bill is enacted—entered into a civil partnership, and an application is made to oust the owner-occupant from the property by a partner who has no beneficial interest in the property, it is extremely important that the court reviews all the evidence of' the relationship between the parties, particularly where the relationship has been of short or sometimes very short duration. That is why I have proposed an amendment to Section 36(6)(e) to include a reference to the level of commitment between the parties, which the court must consider.

I believe that this strikes the right balance between repeal of an unworkable section and reminding the court of the importance of the outward signs of commitment in a couple's relationship. For these reasons, I will not accept Amendment No. 2, as the noble Baroness has indicated, and offer Amendment No. 7 in fair exchange.

I turn now to Amendment No. 3 in the names of the noble Lord, Lord McNally, and the noble Baroness, Lady Thomas of Walliswood. It would standardise the length of occupation orders made under Sections 33 and 35 to 38 of the Family Law Act 1996. The court would be free to make the order for a specific period, or until a specified event, or until further order.

At the moment, the Family Law Act 1996 provides that an occupation order should initially be for a period of a maximum of six months. It then draws a distinction between spouses or former spouses and cohabitants or former cohabitants and parties entitled to occupy a property and those not entitled to occupy a property. For spouses, it says that the court may extend the order on one or more occasions for a further period of not more than six months if the applicant spouse is not entitled to occupy the property or if neither spouse is entitled to occupy the property. For cohabitants not entitled to occupy the property, it says that there may be one extension for a further period of not more than six months.

In Committee we discussed an amendment tabled by the noble Baroness which would have standardised the length of the initial occupation order at six months and allowed the court to extend the order on two occasions for a further six months.

Amendment No. 3 is clearly different in its effect, but my objections to it remain fundamentally the same as those I set out in Committee. First, the Family Law Act draws a distinction between spouses and cohabitants with no entitlement—and it is the "no entitlement" that is important—to occupy the property so as to reflect the different levels of commitment involved in marriage and cohabitation. Where a cohabitant is entitled to occupy a property then the Act makes no distinction regarding the provisions concerning the length of the order between spouses and cohabitants. I acknowledged in Committee that these two relationships can often be similar, but they are in fact quite different in their structure and implications for property and many people who do not marry wish to keep their property rights separate. Unfortunately, or fortunately, that is quite often one of the reasons why they choose not to do so. It is not a reflection on the validity of the relationship. It is simply that legal relationships between cohabiting couples and married couples can be different.

It follows that it is just for the law to reflect the difference in the relationship and the likely complexity of financial and property arrangements in the way in which it makes occupation orders. As the noble Baroness said on other occasions, often people will not be married but they will hold property in joint names and they will make no distinction. It is clear that they wish to share what they have one with the other.

Amendment No. 3 would remove all the Family Law Act 1996 limits on the length of occupation orders, leaving it entirely for the court to determine the length of the order, be it for a specific period, until a specified event, or until a further order. The court's powers on occupation orders are extremely far ranging, for example, regulating the occupation of the home, prohibiting or restricting the rights of occupation of one party, requiring a party to leave the home, or excluding a party from a defined area around the home. I have even had a case where one party was excluded from various parts of the same home, so that one party lived upstairs and the other downstairs and they shared the kitchen.

As the noble Baroness, Lady Anelay of St Johns, said in Committee, there can be advantages for the victim in a quick-fix remedy, in that it keeps the offender's eye on the horizon. It is important to remember that occupation orders are meant to offer what hopefully will only need to be short-term protection, and they should not be used as a substitute for ancillary relief proceedings where questions of divisions of property can be properly considered. Sometimes, separating the two parties from each other can be the most cathartic and safest thing for both of them. For these reasons, I am not able to accept Amendment No. 3, but I hope that the noble Baroness will be content none the less.

5.30 p.m.

Baroness Thomas of Walliswood

My Lords, I thank the noble Baroness for that long and interesting response. What she said does not address the problems faced by some practitioners in the field and also by voluntary organisations working in the field of domestic violence, which is that the orders can be too short and incapable of sufficient elongation in some cases—particularly in those that she has mentioned—to enable the victim, or the person who needs to be protected, to set up a new life that is satisfactory for her—usually her—and her children. I will go back to the people who have been advising me on this to see whether they want me to go any further. The noble Baroness will understand why I have taken that view. However, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Clause 1 [Breach of non-molestation order to be a criminal offence]:

Lord Thomas of Gresford moved Amendment No. 4: Page 1, line 9, after "order" insert "or an occupation order

The noble Lord said: My Lords, noble Lords will remember that in Committee I put forward an alternative to the making of the breach of the civil order, the non- molestation order, a criminal offence. I put forward as an alternative the possibility of strengthening the powers of the civil judge to deal with matters and to the granting of the power of arrest on every non-molestation order so that the police knew where they were, and the setting up of a register, so that in relation to a particular person it would be readily available to the police officer who was called on to enforce the non-molestation order. The Minister gave me a lengthy reply. There was one point in her reply that had considerable merit—that the criminal court has a wider range of penalties to deal with a person who has committed a criminal offence by community orders. I do not need to spell them out. That to my mind was the only advantage.

I have not pursued this line, because there could be an advantage in an extreme situation. The professional bodies, who know what they are talking about, and all colleagues who deal in this field to whom I have spoken regard the civil remedy, the civil application to the judge, when there is a breach of the civil non-molestation order as a far speedier and much more flexible way of dealing with the breach. The matter can be brought before the judge straight away. He has certain powers which would permit him to commit people to prison but also to let them go if the contempt of court were purged.

The purpose of the amendments that I have set down for this stage is to emphasise two points. First, if the breach of a non-molestation order is to be a criminal offence, then logic demands that it should be a criminal offence to breach an occupation order. The answer that was given by the Minister last time took up one paragraph in Hansard. It did not flesh out any positive reason why an occupation order should be excluded from being made a criminal offence, saying simply that the court could make a non-molestation order as well. I do not think that is a very satisfactory answer.

The second point, which was drawn to my attention by a professional body, is that, as drafted, it is possible for the criminal offence to be enforced against the wishes of the complainant. It is a position in which, for example, if the police were called to a house and the breach of a non-molestation order were involved, the police could take over a prosecution and contact the CPS even though the complainant who had obtained the order herself in the first place—because it is the non-molestation order that is being breached—objected to it. So the purpose of Amendment No. 6 is to make sure—and I am sure this was the Government's intention—that criminal proceedings would not be brought against the wishes of the person who obtained the non-molestation order in the first place.

We are told from all sides, and it is a matter of experience, that women who have obtained non-molestation orders in the civil court are reluctant to go to the criminal court. They are reluctant to stand among the people who frequent the criminal courts—among whom, of course, I include myself. They are reluctant to subject themselves, in public, to the sort of cross-examination which could take place in the criminal surroundings. It is much better for a complainant who has taken the initiative, with legal advice, of obtaining a non-molestation order in the first place to have the decision—yea or nay—whether a breach of it is to be regarded as a criminal offence. I hope your Lordships see the logic, fairness and justice of that. I beg to move.

Lord Campbell of Alloway

My Lords, I rise briefly to support Amendment No. 6 for the reasons that have been given.

Lord Borrie

My Lords, purely in relation to Amendment No. 6, I of course recall the arguments of the noble Lord, Lord Thomas of Gresford, in Committee. As the Bill stands, there are two alternative possibilities if a non-molestation order is breached. One is that at the victim's initiative, proceedings are taken in the family court, which is to be preferred for many reasons, as the noble Lord indicated. The alternative—and this has been proposed because there is an arrest power available for the criminal offence—is that a charge is brought under Clause I. The noble Lord said, quite rightly, that it seems on the face of it to be possible to bring such a charge irrespective of the wishes of the victim, but he did not mention the possibility, which is hardly imaginary, that intimidation may well prevent the victim concerned wishing to bring those proceedings and that the police may well think it appropriate, in the interests of the public and the victim, that the proceedings should none the less be brought. Since a breach of a non-molestation order would be a criminal offence under this clause and since that alternative procedure would be available, it would be rather odd for what is labelled "a criminal offence" if charges could be brought only if the victim consented, which is what Amendment No. 6 proposes.

Lord Thomas of Gresford

My Lords, perhaps I may briefly interrupt. I know that we are on Report, but the noble Lord raises a point that merits a response. I have of course considered the question of intimidation, but it should be remembered that the victim will already have obtained the civil order and done so in the context of legal advice and assistance. The risk of intimidation is remote, without the person concerned committing another criminal offence for which he could be arrested. Noble Lords should remember that assault, threats and so on can always be treated as criminal offences if the police are satisfied that they have taken place.

Lord Carlisle of Bucklow

My Lords, in Committee, I briefly supported the noble Lord, Lord Thomas, in his wider amendment, as it then was, which would have retained a breach of a non-molestation order as a civil, rather than a criminal, offence. I still believe that his original proposal was right. The compromise that he now proposes meets at least one of the objections to turning it into a crime. I pointed out in Committee, as did the noble Lord, that there may well be cases where a complainant wishes to take the other party back to the court because of a breach of a non-molestation order, but does not wish that person to be landed with a criminal record as a result. That would be avoided by the noble Lord's proposal that the matter should go to a criminal court only at the wishes of the person who is alleging the breach. Although I appreciate the concern of the noble Lord, Lord Borrie, about the possibility of intimidation being used to prevent that person wishing to make it a crime, I repeat what has already been said. The only reason for the non-molestation order being in place is that the party concerned has already been to the court and obtained such an order. Having taken that action, it is difficult to think, provided that they are limiting themselves to a civil breach of that order, that they are in any way likely to be intimidated from returning to the court. They are less likely to be intimidated than they were when they made the application for the original order. I still think that the noble Lord, Lord Thomas, is right.

5.45 p.m.

Lord McNally

My Lords, with so much of what in other circumstances would be expensive legal opinion flying around, I tread with great trepidation. However, I thought I might share with the Minister in particular and the House in general what might be called hearsay evidence. A week or so ago, I was invited to a lunch where I found myself in the company of a number of very distinguished judges. One of them took me to one side and said that he had been following the domestic violence Bill very closely and reading the Hansard reports of the Committee stage. He said that he wanted me to tell the noble Lord, Lord Thomas of Gresford, that he had got it absolutely right about keeping such matters out of the criminal realm and in the civil. I immediately took credit for the line that we were taking. It was interesting that an experienced judge in this area felt that he should tell me with such enthusiasm that my noble friend was on the right track.

Baroness Anelay of St Johns

My Lords, the noble Lord, Lord Thomas of Gresford, has directed our attention back to one of the most intractable problems at the beginning of the Bill. He does so, rightly, to test the Government's proposal to introduce a new criminal offence, saying to us that there is another recourse—that one can make the civil procedure work better. The noble Lord, Lord McNally, has just referred to an eminent member of the judiciary who has taken an interest in the Bill and who has, with great courtesy, ensured that all noble Lords who have taken part in proceedings have the benefit of his opinion. I know that his opinion has gone more widely than that, too.

I made the point when we discussed the matter in Grand Committee that when I first saw the provision I looked very carefully at all the submissions that had been made to noble Lords before Second Reading, and subsequently. It was very clear that there was a divide in opinion about Clause I between those who have eminent experience in the legal practice in applying civil orders as against those organisations that represent women—and, sadly, it tends to be mostly women—who are at risk from domestic violence. In that I, of course, include their families who are with them.

I had great sympathy with the noble Lord, Lord Thomas of Gresford, when, in Grand Committee, he suggested that we should make what we have work better, so that we had that protection. I listened very carefully to the huge weight of material that we have received from outside organisations, which have said that their experience is that, simply, that did not work and that they did not have confidence in it working in the future. However, the noble Lord, Lord Thomas, is absolutely right in pointing to the fact that women do not like going to criminal courts on what they consider to be domestic matters. The response to that from those who represent victims has been to say that they know that has been the case in the past but that we need to make a shift, so that we really do protect women in the future; and that the only way to do that is by having a criminal offence.

I start from the same position as my noble friends Lord Campbell of Alloway and Lord Carlisle of Bucklow. I am very reticent about introducing new criminal offences. However, in this case, I am still listening. I have given a commitment to organisations that I have met since Grand Committee, some of them for the second time and some for the first time. They include the Children's Rights Consortium, Women's Aid, Refuge and Victim Support. I have given them the commitment that I will not take any action from the Front Bench that will in any way reduce the protection that may be given to women. At this stage I have to say that I believe that the Government are making a very difficult decision, but one that I cannot yet oppose. Although I am prepared to give them the benefit of the doubt, I am still listening.

The overall attitude that I have had from other organisations has been that, whatever the Government do, they must deliver better safety. That is what they really want. I have heard from lawyers repeatedly throughout our discussions behind the scenes on the Bill that they have done the absolute utmost to protect people who have been at risk and have suffered from domestic violence. They have talked to them and taken them through cases, but ultimately one of the greatest frustrations is that that particular client may see fit in the end to withdraw. That is often because of the very point made by the noble Lord, Lord Borrie, that even if there has been no intimidation, they fear intimidation.

I know that I have made a circular argument, but it is to illustrate the fact that I appreciate as much as anybody else that the issue is intractable. The Government are seeking a way out, and are trying to cut the Gordian knot and say, "Let's put the past behind us and try something new". In their consultation, they had a very heavy response in favour of the measures. At that stage, I did not have much of a response against the Government. I have concerns about this provision on the basis given by my noble friend Lord Carlisle of Bucklow today and, at greater length, in Grand Committee and I endorse all that my noble friend Lord Campbell of Alloway said at greater length in Grand Committee. He quite rightly kept his remarks brief today.

So I am still listening but whatever I, as a Front-Bencher, ultimately agree to on the Bill, it has to have the fundamental tenet that if things have not worked in the past, whatever happens in the future there must be better protection. This will not be the only solution in Clause 1, nor in the rest of the Bill, but we are still looking for the answer.

Baroness Scotland of Asthal

My Lords, I agree with the comments made by the noble Baroness, Lady Anelay. I have had the privilege—and I do see it as a privilege—of representing women who had been subject to domestic violence since I started at the Bar in 1977, which is quite some time ago. All I have to say to the noble Lords, Lord Thomas of Gresford and Lord Carlisle, is that I wish it were so in relation to intimidation. I regret to tell your Lordships that in my experience dealing with these cases at the Bar, it was not so.

One must understand the nature of domestic violence. Many women will be brave for a while, sometimes brave for a moment, and in that moment they are able to withstand the pressure of the violence to which they are subject. However, that courage can wane. There are huge issues that women in this position have to look at: the risks to their families, to their friends, to their children. Sometimes, their resolve buckles. The people who make them buckle are usually the abusers. I wish that once a woman has the courage to stand up and say "No", she always has the courage to maintain that position. The tragedy is that these women often do not. That is why those who represent vulnerable women in these situations say that we must cut this knot. On occasion, particularly if police go to the door and they see a women who has been badly battered and she has evidence of abuse, it must be proper for proper protection to be attempted.

If we look at the history of many of those abusers who go on to kill, they have had relationship after relationship where the abuse of the women with whom they have been engaged has become more and more severe. Many of those women who do not want to go to court, who withdraw, end up in a situation more dangerous than before. It is a very important issue. I reiterate what the noble Baroness, Lady Anelay, said; those who deal with these matters have strongly said to the Government that this is what they want and need. They wish that when the police come to the door they are able to arrest the person and take him away, even if that is to cause respite thereafter.

I also reiterate what my noble friend Lord Borrie said. There are still two routes. In order to address this situation, which I believe the amendment seeks to tackle, we are leaving open the option of victims pursing civil actions for breach of non-molestation orders where the police are not involved or where the CPS decides that criminal prosecution is not appropriate. This should ensure that victims are not deterred from seeking the protection of the court because of fear of criminal action. In the Northern Ireland experience, where breach is already an arrestable offence, there is little evidence that this has deterred victims from obtaining orders. It appears to be working.

I say to the noble Lords, Lord Thomas of Gresford and Lord Carlisle of Bucklow, that I understand their concern. How far we should protect or honour choice is a real concern. It is a difficult balance. I am not pretending that it is not. Those who have dealt with this over a long period, who have hands-on experience at an operational level, have told us, and women have told us, that this is what they want. The Government do not have the arrogance to disagree with them.

Non-molestation orders go right to the heart of the protection for the victim where there is domestic violence. The noble Lord asks, "What of molestation orders?". Your Lordships will know that we are asking the court to consider, on every occasion that an occupation order is made, whether a non-molestation order should also be made.

As for the comments a few moments ago on the new clause, I maintain that, sometimes, occupation orders are made that have nothing to do with violence; they may deal with organisation within the home and with who should leave when. In other cases, the court may issue an occupation order telling one party that it must leave the home but the party does not do so. For example, someone may be suffering from Alzheimer's, and one of the reasons why the court orders them to leave is so that they will not be considered as voluntarily homeless. Because of the illness, however, the person does not leave. They will be in breach. It is nothing to do with non-molestation orders or violence. It would not be appropriate simply to say that it applies in all cases.

The scheme that we have put together says that whenever the court is considering an application, it should consider whether it is appropriate in those circumstances and on those facts to make a non-molestation order as well. We think that we can thereby deal with the matter. We say that the occupation orders are significantly different. We give as an example Section 40 of the Family Law Act 1996, which sets out a number of additional provisions that may be included in certain occupation orders, such as the repair and maintenance of the property, and the discharge of rent, mortgage payments or other out-goings. I am sure that the noble Lord, Lord Thomas of Gresford, with his fierce and proper interest in justice, would not like people to be arrested it' they failed to paint the fence in accordance with an occupation order made against them.

We fear that the amendment places rather too heavy a burden on victims, leaving them open to undue influence by perpetrators. In addition, the amendment takes away the right of the Crown Prosecution Service to decide on prosecutions and the ability of the courts to convict and makes this conditional on the agreement of the victim. I say with due humility that that cannot be right. It is, of course, appropriate for the victim's views to be taken into account, and the judge can do so when passing sentence. I am sure that those prosecuting will also take those matters into consideration, as would be proper. We have made it plain that the police and the Crown Prosecution Service have to keep at the heart of their work the interests of the victim or the witness involved in the case. We see clear evidence of their doing just that.

Lord Thomas of Gresford

My Lords, when the noble Baroness was chiding me for a lack of experience in this field, my mind went back to 1960—I am not sure whether the noble Baroness was born then—when I was a 22 year-old articled clerk instructing a young barrister by the name of Emlyn Hooson, who was being led by Elwyn Jones QC. Somehow we all ended up in your Lordships' House; it must be a unique case. The case to which I referred was all about violence in the home occasioned by a husband who was mentally ill, and what was the effect of his mental illness upon the violence which he was creating. Thereafter, as a young solicitor, I obtained many an order on behalf of victims of domestic violence. In latter years, as the noble Baroness will appreciate, I have been involved with many murder cases where domestic violence has led, as she rightly says, to the ultimate conclusion. So I do not think it is a lack of experience I can be chided with by the noble Baroness.

Where I think the mistake is being made is in suggesting that prosecution for the breach of a civil order should be done against the wishes of the victim. We are not talking about serious violence. If a policeman goes to the door and he sees a victim who has been beaten up, he can arrest the husband whatever she thinks and take him before the court.

That is the protection that every citizen enjoys, and that is not being taken away by anybody. We are not dealing with that level of violence because the police already have ample powers, and the victim already has the full protection of the criminal law in that situation.

This is an offence, I repeat, for the breach of a civil order which the victim has herself obtained. If she does not wish to make a complaint, then I do not see why anybody else should make a complaint on her behalf. She has her remedy in the civil court, which is a better remedy, as the Minister concedes—it is quicker and more effective. All I can see happening if the prosecution were foolish enough to bring a case against the wishes of the complainant, is that she would simply fail to give evidence. We would then be into the worst possible situation for that lady whereby she might be treated as a hostile witness; she would be cross-examined by everybody—by the prosecution, by the defence—in the context of the criminal courts. That must be bad for her.

I am grateful to the noble Lord, Lord Carlisle, for supporting the wider scheme that I put forward, as did the noble Lord, Lord Campbell of Alloway. I am very grateful to them for their continued support. If we take this route of making the breach of a civil order a criminal offence, surely it has to be with the consent of the person for whom that order was made, and by whom that order was made. Anything else is dragging the poor woman into the criminal courts where she will have an experience that she will not relish and will never forget.

I hope that the Government will think more about this, as will all noble Lords, before we get to Third Reading, because I do not undertake at this moment to drop this issue altogether. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6 p.m.

Baroness Anelay of St Johns moved Amendment No. 5: Page 1, line 13, leave out "of the order" and insert "and contents of the order, save that if after becoming aware of the existence of the order the person deliberately evades service of the contents of the order, it will suffice that the person was aware of the existence of the order

The noble Baroness said: My Lords, Amendment No. 5 follows on from the debate we have just had about the serious nature of the offence that the Government are introducing in Clause 1.

Just about the only protection for the person who will be arrested is in the proposed Section 42A(2), which provides that an individual would be guilty of a criminal offence only if he or she were aware of the existence of the order. I made it clear in Grand Committee that that is not enough protection. It takes little imagination to see that one might have a shouted telephone conversation that one person has an order against the other—that might be held to be sufficient to make the other person aware of the existence of the order, but without giving them any idea about what the court was preventing them doing.

In Grand Committee I moved an amendment with a similar objective to my Amendment No. 5, but I have subsequently redrafted that to take account of the objections that were raised to my drafting. The Minister in her response said that, 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".—[Official Report, 19/1/04; col. GC 225.]

I have taken further advice since then and I am told that that is not quite the case; the law on that changed a while ago. Furthermore, I am advised that there is a considerable amount of case law on the comparable notification of an ex parte order for the purposes of committal proceedings in the civil courts. It has been made clear that the terms of the order must be notified either by service of the document or by proof that they have been read down the telephone or sent by some other means, by telegram, fax or whatever.

When I moved my amendment in Grand Committee, the noble and learned Lord, Lord Donaldson, suggested that the amendment could be improved by adding wording such as, provided that he knows that he should not be doing it in accordance with the order". As always I take advice from the noble and learned Lord and his advice has been used as a substance for my redraft.

There appear to be no other instances in the courts where service of the contents is not required for liability to arise.

When the Family Law Bar Association responded to the Government's consultation, it supported this clause 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".

It is in support of that view that I propose the amendment. I beg to move.

Lord Campbell of Alloway

My Lords, I support the amendment. It is absolutely essential that there should be proof of knowledge of the content of the order. This is general law. Why should there be an exception?

Baroness Scotland of Asthal

My Lords, when the issue of prosecution for breach of "without notice" non-molestation orders arose in Committee, I explained that the Government had drafted Clause 1 to avoid the existing problem of respondents deliberately evading service of an order and then breaching it with impunity on the grounds that they were not aware of its terms.

The intention of Amendment No. 5, tabled by the noble Baroness, Lady Anelay of St Johns, and moved by her today, is to provide additional protection for respondents to non-molestation orders, by making it explicit that a person can be found guilty of breach of an order only if he was aware of both the existence and contents of the order; or, after becoming aware of the existence of the order, he deliberately evades service of its contents.

I make it clear straightaway that I sympathise with her intention, but I hope that the noble Baroness will forgive me if I disagree with the need for this amendment. Your Lordships will recall that the Government built a safeguard into these provisions: a person can be found guilty of breaching a non-molestation order only if they did so "without reasonable excuse". As I explained in Committee, this proviso could, for example, operate so as to protect a respondent who co-operated 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, and I believe this provides an adequate safeguard. It should not, of course, be forgotten that non-molestation orders generally prohibit harassment of the victim and it might not be unreasonable to expect a respondent who is aware of the existence of an order to refrain from such harassment.

I am also concerned that this amendment would make it harder to hold respondents to account for breaching an order because as well as proving that the order's provisions were breached, the prosecution might also have to demonstrate that the respondent had deliberately evaded service, and this would potentially be very difficult to prove. As I believe the noble Baroness mentioned, when we last discussed this, the noble and learned Lord, Lord Donaldson of Lymington, suggested that a bright lawyer would inevitably protest that the respondent could not be found guilty because he did not know the terms of an order. Should this amendment pass, the same lawyer would simply argue that his client could not be found guilty on the grounds that they had not deliberately evaded service. It might then be difficult to prove that the respondent had, for example, intentionally not answered the door to the process server.

The amendment could also prevent the conviction of respondents who, while not deliberately avoiding service of the contents of an order, were aware of its existence and made no effort to ascertain its terms before breaching one of them. We also need to bear in mind that non-molestation orders generally only prevent someone from undertaking behaviour that the respondent knows would be unacceptable, such as harassing the victim. For those reasons, I cannot accept this amendment. However, the noble Baroness should be reassured that the reasonable excuse to which I referred would enable the court in those circumstances to listen to what the defendant had to say and to mete out justice.

Lord Renton

My Lords, before the Minister sits down, she said that she agrees with the purpose of the amendment. If I heard her correctly, would she give an undertaking now to table an amendment at Third Reading which will enable her to fulfil the purpose of the amendment in what she believes would be a proper way?

Baroness Scotland of Asthal

My Lords, before the noble Lord, Lord Campbell, intervenes, our point is that we sympathise with the intention behind the amendment, but we believe that that intention is already given expression by the term "without reasonable excuse". It enables the defendant to provide the court with evidence of the "reasonable excuse" that the defendant purports to have and it allows the court to determine the level of its reasonableness.

Lord Campbell of Alloway

My Lords, having listened to the debate with great care, it seems that something is adrift in both the way the Bill is drafted and possibly in the amendment. Without giving any undertaking, will the Minister give further thought to the matter, that someone who is not aware of the provision can be safeguarded?

Baroness Scotland of Asthal

My Lords, I will certainly continue to give such issues consideration, because—I make no bones about it—I am totally committed to making the whole Bill as fair, as effective and as just as I can. I reassure noble Lords that I am probably causing my officials great consternation by constantly reviewing matters, even those which no one else has worried about. I can give that assurance without any difficulty at all.

Baroness Anelay of St Johns

My Lords, I am grateful to my noble friends who have contributed so effectively to the debate. The Minister tried to reassure me by saying that although she sympathises with my amendment, she can see no need for it and points to the provision in subsection (1) of the clause to the effect that the words "without reasonable excuse" would properly cover the matter.

My concern, as I have previously expressed, is that it is a substantial change, as the noble Lord. Lord Thomas of Gresford, outlined in detail in the previous group of amendments. It is a considerable change in which it is important that people are protected from the moment that an action occurs. The difficulty with the Minister's response is that if one is able to show that one has "reasonable excuse" one has already reached court.

Baroness Scotland of Asthal

No, my Lords. The noble Baroness will know that both the police and the Crown Prosecution Service, when deciding whether to charge or not, will have to consider the evidence before them. The most important point about the power of arrest is that the police are, at that moment, able to go to the house and remove the person from the site. Sometimes that is the most important part of the security for the woman.

They will then be obliged in the normal way properly to consider the nature of the charge—the noble Baroness will remember that we are changing the way in which the police operates to make the CPS responsible for the charge. There should be proper inquiries into whether this part of the offence is established, and whether that person can say "I had a reasonable excuse, because I knew nothing about this. I was away and did not get it", or whatever. The CPS can make that decision on whether it, the prosecutor, thinks that there was not a "reasonable excuse"—and that is when there will be a debate in court over who is right and who is wrong.

Baroness Anelay of St Johns

My Lords, I am not at variance with the noble Baroness on that particular issue. Where I am at variance is that I think this is such a significant change that there needs to be clarity in respect of this particular protection, and in respect of the fact that in other parts of the law one would expect to have to know the contents of an order before there could be action taken. It is a matter between us, I think, not of disagreement over the ultimate objective but how we get there. My noble friend Lord Renton really put the matter far better than I did, when he asked for a Government amendment at Third Reading which would do the job better than this amendment. The noble Baroness is quite fairly saying that, as far as they are concerned, they have got there already. It is only in respect of that—because this is a matter of principle for me on Clause 1—that it is an issue I want to resolve one way or the other. One does not have to take up Third Reading with this. Only on that basis, I seek to test the opinion of the House.

6.15 p.m.

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 42; Not-Contents, 79.

Division No. 2
Alton of Liverpool, L. Lyell, L.
Anelay of St Johns, B. MacGregor of Pulham Market, L.
Attlee, E.
Biffen, L. Marlesford, L.
Bridgeman, V. [Teller] Mayhew of Twysden, L.
Brooke of Sutton Mandeville, L. Monson, L.
Brougham and Vaux, L. Northbrook, L.
Campbell of Alloway, L. Northesk, E.
Carlisle of Bucklow, L. Norton of Louth, L.
Park of Monmouth, B.
Cope of Berkeley, L. Parkinson, L.
Denham, L. Reay, L.
Elton, L. Renton, L.
Fookes, B. Seccombe, B. [Teller]
Fowler, L. Selborne, E.
Glentoran, L. Skelmersdale, L.
Hanningfield, L. Stewartby, L.
Jenkin of Roding, L. Strathclyde, L.
Kingsland, L. Swinfen, L.
Laird, L. Thomas of Swynnerton, L.
Lamont of Lerwick, L. Ullswater, V.
Luke, L. Watson of Richmond, L.
Acton, L. Bassam of Brighton, L.
Ahmed, L. Beaumont of Whitley, L.
Amos, B. (Lord Privy Seat) Blackstone, B.
Andrews, B. Borrie, L.
Archer of Sandwell, L. Brooke of Alverthorpe, L.
Ashton of Upholland, B. Brookman, L.
Bach, L. Brooks of Tremorfa, L.
Burlison, L. Hoyle, L.
Campbell-Savours, L. Hughes of Woodside, L.
Carter, L. Hunt of Kings Heath, L.
Christopher, L. Irvine of Lairg, L.
Clarke of Hampstead, L. Janner of Braunstone, L.
Clinton-Davis, L. Jay of Paddington, B.
Cohen of Pimlico, B. Judd, L.
Corbett of Castle Vale, L. King of West Bromwich, L.
Crawley, B. Kirkhill, L.
Davies of Coity, L. Lea of Crondall, L.
Davies of Oldham, L. [Teller] McIntosh of Hudnall, B.
Dean of Thornton-le-Fylde, B. MacKenzie of Culkein, L.
Desai, L. Masham of Ilton, B.
Dubs, L. Massey of Darwen, B.
Evans of Parkside, L. Pendry, L.
Evans of Temple Guiting, L. Pitkeathley, B.
Falconer of Thoroton, L. (Lord Chancellor) Plant of Highfield, L.
Puttnam, L.
Falkland, V. Ramsay of Cartvale, B.
Farrington of Ribbleton, B. Rooker, L.
Faulkner of Worcester, L. Scotland of Asthal, B.
Filkin, L. Sewel, L.
Gale, B. Simon, V.
Gavron, L. Symons of Vernham Dean, B.
Gibson of Market Rasen, B. Temple-Morris, L.
Goldsmith, L. Thornton, B.
Grocott, L. [Teller] Triesman, L.
Harrison, L. Turner of Camden, B.
Haskel, L. Warner, L.
Hayman, B. Whitaker, B.
Hollis of Heigham, B. Wilkins, B.
Howarth of Breckland, B. Williams of Elvel, L.
Howells of St. Davids, B. Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.25 p.m.

[Amendment No. 6 not moved.]

Baroness Scotland of Asthal moved Amendment No. 7: After Clause 1, insert the following new clause—


(1) Section 41 of the Family Law Act 1996 (c. 27) (which requires a court, when considering the nature of the relationship of cohabitants or former cohabitants, to have regard to their non-married status) is repealed.

(2) In section 36(6)(e) of that Act (court to have regard to nature of parties' relationship when considering whether to give right to occupy to cohabitant or former cohabitant with no existing right), after "relationship" insert "and in particular the level of commitment involved in it"."

On Question, amendment agreed to.

Baroness Walmsley moved Amendment No. 8: After Clause 3, insert the following new clause—

"Amendment to Part 1 of the Family Law Act 1986

USE OF RECOVERY ORDERS In Part 1 of the Family Law Act 1986 (c. 55) (child custody), after section 34 insert—


(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—

  1. (a) check their records to see if either party has committed acts of violence;
  2. (b) check to see if either party is included on the register of domestic violence perpetrators;
  3. (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—

  1. (a) not remove the child from the respondent;
  2. (b) advise the respondent to seek legal representation;
  3. (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: My Lords, Amendment No. 8 is identical to Amendment No. 12 which we debated in Grand Committee. In moving it, I am somewhat hesitant because on that occasion the Minister kindly gave us what was referred to as the tour d'horizon of the regulations that are already in place. Her main objection to my amendment was that she considered it to be unnecessary because Section 34(1) of the Family Law Act 1986 requires that a Part I order, which is more usually known as a Section 8 order under the Children Act 1989, is made before a recovery order and therefore the court will already have considered what is in the best interests of the child.

Having looked carefully at the noble Baroness's remarks, Women's Aid, which has been briefing me on this issue, has taken legal advice. That advice confirms that, because this is an urgent procedure for dealing with abductions, there is no requirement for detailed welfare investigations to be carried out, and a Section 8 order—for example, for interim residence—can be made without notice at the same time as a recovery order is granted. Therefore, this situation needs to be rectified in order to ensure that recovery orders are not misused by perpetrators.

Even if there has been an earlier order, that does not necessarily mean that the court has full and up-to-date information about the present circumstances of the case. That is crucial in order for the court to make a just decision.

I recall that when we debated this issue in Grand Committee, the noble and learned Lord, Lord Donaldson, emphasised the speed of these procedures. He proposed that it might be sensible to consider having a standstill before the order was carried out so that the custodial parent could attend and make the case as to why it should not be carried out. I submit that proposed new subsection (5) of my amendment may provide just such leeway.

Therefore, the amendment seeks to clarify the legal procedures for dealing with child abductions and it seeks to ensure that the measures are not used inappropriately in cases of domestic violence. We still believe that such a provision is necessary because domestic violence perpetrators have been able to seek, and obtain, recovery orders to track down their victims and recover children even, on some occasions, as I believe I mentioned in Grand Committee, from refuges, despite all the safeguards referred to by the Minister.

The person who must give up the child may very well have recourse to other measures after doing so. But that situation is very unsettling for the child. The genie is already out of the bottle and it is very had for the child. In those circumstances, it is far better to prevent that happening in the first place.

If an abused woman flees from the family home, taking the children with her, we still believe that her violent partner may seek legal advice, claiming that it is a case of child abduction. As your Lordships know, the person on whom the order is served must immediately disclose to the court all the information that he or she has about the whereabouts of the child. Any person with a legitimate interest can apply for orders under Sections 33 and 34 of the Family Law Act 1986 and an application for a contact or residence order will usually be made simultaneously. Therefore, as these measures are intended specifically to deal with child abductions, understandably this is a very quick procedure, as is also a without-notice application.

The order can be served on any person who may have knowledge of the whereabouts of the child. As we said in Committee, there have even been instances of staff in women's refuges being ordered to disclose in court, in front of the perpetrator, the full address of the refuge where the women and children are staying. Of course, that does not put just the woman who is the subject of the application in danger, but also all the women who are taking refuge at the address.

The reason that I return to this matter is because things do not always work as they should. Recovery orders make it possible for abusers to take action so fast that the mother has no time—it usually is the mother—to seek legal representation, or sometimes to attend court and give her side of the story before a child is removed from her care.

In the fourth annual report of the Advisory Board on Family Law 2000–01, at page 52, the Children Act Sub-Committee made recommendations. One recommendation was that when both parties are before the court, the court can make an informed decision about whether or not it is necessary and in the interests of the child to keep the whereabouts from the parent who has made the application. However, despite the measures that the Minister believes are watertight to protect children, I have pointed out that some judges appear to have difficulty in distinguishing between cases of domestic violence and cases of abduction. That is hardly surprising because sometimes people are very plausible when they make their cases. Unfortunately, judges are still granting orders for children to be found and returned to violent parents and they are also granting, without notice, interim residence orders to perpetrators.

In a national survey conducted by Women's Aid in May 2003, seven refuge organisations reported problems with recovery orders. In Committee I quoted one of the cases. On this occasion I would like to quote a couple of others. The comments indicate that such a situation can happen even when the father has a police record for violence and the mother is staying in a refuge. The survey stated: A very recent case where a violent father with a criminal history of violence was able to get an ex parte residence order and a High Court issued recovery order executed in a refuge". The second case is as follows: A court in another county issued an order for the woman's parents to disclose her address after she had fled to our area. There were police reports of domestic violence". In those circumstances, because the mother is viewed as having abducted the child, she is likely to be treated very harshly by the courts and the wishes and feelings of the child will not necessarily have been taken into consideration at all. That is made very clear in the case details provided by another survey respondent: The father started proceedings claiming [the mother] had abducted the child without warning. The mother was ordered at very short notice to attend court. She did not manage to get to court in time, and did not have a solicitor, so the decision was made before she arrived: a residence order in favour of father. The child is not at all happy with this decision, which is being appealed". As I said earlier, even if that appeal is successful, a great deal of damage will have been done to the wellbeing of the child in the mean time. Even when the perpetrator is in prison the family justice system can still be used to track down his victims. The following case does not involve a recovery order but it illustrates the dangers of making orders without notice when the circumstances of both parties are not known: The parents of an extremely violent man, who is in prison for assaulting his ex-partner, applied for contact with their grandchildren. At the same time the grandparents obtained an order for disclosure of the mother's address. All of this was done ex parte, and the mother knew nothing about this until she received an order from the court stating that a welfare report had been ordered on the issue of parental grandparent contact. This woman is still receiving hospital treatment for the injuries she received a year ago, and she is terrified that her ex-partner will find out where she is living". The family justice system should recognise the need to protect children and mothers who flee violence in all circumstances and be that little bit cleverer than the very clever and manipulative men who sometimes can find loopholes in the law to get at their victims.

In Committee, the Minister said that we should not allow the courts to be used as a weapon in a protracted war between partners—a kind of tug-of-love situation about which we have all heard. I absolutely agree with her. In fact, I have personal experience of one of these situations. I know that the need to avoid such situations is so great that people sometimes make great sacrifices in order to ensure that the child is not damaged in that way. But it is very damaging for children.

However, I think the courts recognise these cases and deal with them appropriately. So it is essential that family law should not enable perpetrators to track down their victims and obtain without notice orders for contact or residence before the court is fully aware of the circumstances of the case and is able to deal with a full and up-to-date report on the situation regarding the welfare of the child. I beg to move.

Baroness Anelay of St Johns

My Lords, the text of the amendment is identical to the one tabled in Grand Committee. Therefore, the drafting questions I posed then must remain the same. On the last occasion the noble Baroness, Lady Walmsley, said that she would consider my questions. I wonder whether she has had the chance to do so and whether Women's Aid has been able to advise her upon it. She might be able to set my mind at rest when she responds to this short debate.

As I said in Grand Committee, I sympathise with the noble Baroness's objective. I notice that subsection (5)(a) in the amendment refers to not removing the child from the respondent and subsection (6) refers to defendant. Is that intentional? Who is the defendant and who is the respondent in this context? Subsection (4) refers to a police check of records to see whether either party has committed acts of violence. As I said before, I agree entirely that that should be done. But then subsection (5) goes on to state: If the records show that the applicant has a history of violence"— and the applicant is mentioned here— the police … will not remove the child from the respondent". My question is simple: what if a search of the records shows that the respondent has committed acts of violence in the past? What are the police expected to do then?

The amendment puts a very heavy responsibility on the police. We need to take account of what happens to the child. According to Amendment No. 8 the police do not remove the child from the respondent even where he or she is shown to have a history of violence. That makes one wonder whether the amendment puts the welfare of the child first. I know from the noble Baroness's long history and experience in these matters that that is the last thing she wants because she always, quite rightly, considers the welfare of the child first.

So, although it is almost my pleasure to receive briefing from Women's Aid and to do as much as I can to support its amendments, I find myself in the position where I cannot support the text of this amendment because of the problems it raises. I still sympathise with the objective, but at this stage I am not in a position to support it.

Baroness Scotland of Asthal

My Lords, as the noble Baroness, Lady Walmsley, rightly says, these amendments are identical to the ones we discussed in Grand Committee on 21 January. On that occasion I set out at length—and I apologised then—how the current law on recovery orders operates. I do not intend to repeat that detailed explanation this evening. I will, however, briefly rehearse my objections to the amendments. I must say that my objections remain the same.

I hear what the noble Baroness says in relation to child abduction issues. I do not agree. Obviously, I do not know the details about which the noble Baroness speaks. I can tell your Lordships that the law and the rules are robust. Of course I cannot comment on whether they are applied accurately, properly and appropriately in each case without looking at the particular facts of the case. We do not know whether these cases are internal or international abductions and which rules applied and which did not. The welfare of the child remains the kernel to each application. So, all I said on the last occasion still applies.

Case law indicates that the police should not be ordered to disclose the address of the women's refuge. The Chief Constable of West Yorkshire Police v S in 1998 is reported in Family Law Reports at page 973. That is what is supposed to happen. The normal procedure is that if there is any issue or difficulty the court invites the parties to write the address down on a piece of paper. Your Lordships will know that it is usual for the officer of the court or the constable to be given the right to take charge of the child and deliver him to the person concerned. Where neither party has a residence order, and accusations of violence are made, Amendment No. 8 seeks to place additional duties on the court and the police to inquire into whether the allegations of violence are justified. If they were, the court would not return the child to the applicant, but the respondent would be advised to get legal advice.

I hope that I made the point when we discussed this in Committee that Amendment No. 8 seeks to place these additional duties in a way that I do not think is appropriate. My objections to the amendment are as follows. Respondents to the Children Act Section 8 applications have the right to appeal and can seek variations of the order. The Section 34 application is not the place for rehearsing the facts of the case that will already have been decided at an earlier hearing. The existing remedies for the enforcement of the residence order against those who do not comply with them and the powers to make orders authorising the return of the children are sufficient. What is more, they safeguard the welfare of any children involved. The provisions of the Children Act and the guidelines on how the court should deal with the allegations of domestic violence ensure that the welfare of the child is paramount and that allegations of domestic violence are properly taken into account by the court when deciding contact issues.

I have already given the House the good news about what will happen in relation to the forms, which will ensure that allegations of domestic violence are dealt with at the initial application stage. There should be no need for further discussion of the issues or applications made under Section 34 of the Family Law Act 1986.

While I fully understand the good intentions behind Amendment No. 8, the law as I set it out in Grand Committee already provides sufficient protection and, with the introduction of the new forms, will offer increased protection. For all those reasons, I regret that I cannot agree with the amendment. I know that the noble Baroness expresses the issue of child abduction on behalf of Women's Aid. Since it is an issue with which I am familiar, if the noble Baroness thinks that it would be helpful for me to produce a note on why the child abduction provisions do not also impinge on this, I would be happy to do that. I do not wish to tire the House by going through the structure, the case law, and the different forms of international child abduction and non-international child abduction. If the noble Baroness would find that helpful, I would be happy to do it.

Baroness Walmsley

My Lords, I thank the Minister for her explanation and for her offer of a note about the child abduction arrangements. That would be most helpful. I hope that the House will forgive me for returning to test this issue once more on behalf of Women's Aid, which still has concerns, mainly connected with the speed of the proceedings and the fact that sometimes the person who has custody of the child does not even get the chance to know that it is going on.

I apologise to the noble Baroness, Lady Anelay of St Johns, for not addressing the issue that she raised last time. I had intended to do so. We should have changed one of those words so that both were the same. Both "respondent" and "defendant" refer to the person who has custody of the child; in other words, the person who is not the applicant.

I accept that the noble Baroness raised the issue of what happens if the person who has custody of the child has a history of violence. In that situation, the person who is trying to get custody of the child would not be bringing it under a claim that the child had been abducted. He or she would be bringing that claim for custody of the child on the basis that the person who had custody was totally inappropriate because of that history of violence. So I do not think it would apply in this case.

It would be most helpful to have the note to which the Minister referred. I think Women's Aid will consider that with very great interest and I hope that their minds will be set at rest. It is nice to know that the Minister thinks that the law is robust in this case, and I hope that she is right. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.45 p.m.

The Deputy Speaker (Lord Brougham and Vaux)

My Lords, I must advise the House that if Amendment No. 9 is agreed to, I cannot call Amendments Nos. 10 to 17 inclusive, because of pre-emption.

Clause 4 [The offence]:

Lord Renton moved Amendment No. 9: Page 2, line 29, leave out subsections (1) to (5) and insert— (1) A person is guilty of an offence if—

  1. (a) a child or vulnerable adult dies as a result of the unlawful act of—
    1. (i) a member of the same household as that victim, and
    2. (ii) who had had frequent contact with him or her,
  2. (b) at that time there was a significant risk of serious physical harm being caused to the victim by the unlawful act of such a person, and
  3. (c) either it was that person whose act caused the victim's death or—
    1. (i) that person was, or ought to have been, aware of the risk mentioned in paragraph (b),
    2. (ii) that person failed to take such steps as he could reasonably have been expected to take to protect the victim from the risk, and
    3. (iii) the act occurred in circumstances of the kind that that person foresaw or ought to have foreseen.
(2) The prosecution does not have to prove whether it is the first alternative in subsection (1)(c) or the second in subsection (1)(c)(i) to (iii) that applies. (3) If that person was not the mother or father of the victim—
  1. (a) that person may not be charged with an offence under this section if he or she was under the age of 16 at the time of the act that caused the victims death, or
  2. (b) for the purpose of subsection (1)(c)(iii) that person could not have been expected to take any such step as is referred to there before attaining that age.
(4) For the purpose of this section—
  1. (a) a person is to be regarded as a "member" of a particular household even if he or she does not live in that household, if he or she visits it so often and for such periods of time that it is reasonable to regard him or her as a member of it, and
  2. (b) where the victim lived in different households at different times, "the same household" refers to the one in which the victim was living at the time of the act that caused the victim's death.
(5) For the purposes of this section an "unlawful" act is one that—
  1. (a) constitutes an offence, or
  2. (b) would constitute an offence but for being the act of—
    1. (i) a person under the age of ten, or
    2. (ii) a person entitled to rely on a defence of insanity.
(6) Subsection (5)(b) does not apply to an act of such a person as is mentioned in subsections (1), (3) or (5).

The noble Lord said: My Lords, Amendment No. 9 is an important drafting amendment. It is important because Clause 4 includes a new method of drafting which is unconventional, ungrammatical and, I suggest, unacceptable. May I have the attention of the Front Bench?

This new method of drafting introduces a system which contains references to capital letters of the alphabet, which are repeated, instead of using the traditional, grammatical method which has always been used and which everybody understands. In redrafting subsections (1) to (5) of Clause 4 in the traditional way, not only have I made them clearer but I have shortened them without altering their meaning or legal effect. Moreover, I have, I believe, made them easier to understand.

I ought to confess that I was chairman of the only official committee since 1870 to advise on the way in which Acts of Parliament should be drafted. In our day, this method of using capital letters as cross references had never even been contemplated. So far as I know, this is the only precedent so far in which they have been used in a massive way. I really do think that the purpose and method of drafting should continue in the way that they have for generations.

I draw attention to a strange reference in Clause 4; it is in line 21 of page 3, at the end of subsection (5), and states: Paragraph (b) does not apply to an act of D". Is that English? Is that a proper way to draft?

This is an important matter, and I hope that the noble Baroness, for whom we all have very great respect, will show that she understands the problem and will accept my solution to it. I beg to move.

Lord Borrie

My Lords, I should like to give an indication of a view from this side. I recall very well that the noble Lord, Lord Renton, raised this matter in Grand Committee. I congratulate him on following that through and putting his money where his mouth is, as it were, in setting out and drafting in full what he regards as a suitably drafted Clause 4—or, rather, most of Clause 4.

I recognise of course that the noble Lord has many years' experience of drafting, statutory interpretation and all such matters. However, I suggest that innovation in parliamentary drafting is fairly rare, because, without any disrespect to them, parliamentary draftsmen are very traditional people. I find Clause 4 quite easy to read with its use of two simple initials, "D" and "V"—one meaning defendant and the other meaning victim. It is easy to understand to whom reference is being made by those initials. Given that brave innovation by parliamentary draftsmen, which assists clarity not just for laymen and social workers, but even for the lawyers who have to interpret Clause 4 in the future, it would be a great pity to "knock it on the head". That would probably put an end to all innovation from parliamentary draftsmen for years to come. I do not know any of them and I may be wrong in thinking that they are men and women of sensibility, but they may be sensitive and they may be quite upset if we were to knock on the head that particular attempt, which is useful and should be encouraged.

Baroness Thomas of Walliswood

My Lords, I hesitate to intervene in this battle of the Titans, but I must simply confess that I am with the noble Lord, Lord Borrie, and not with the noble Lord, Lord Renton.

Lord Campbell of Alloway

My Lords, I am with my noble friend Lord Renton. He was after all my sponsor in my introduction to your Lordships' House some years ago and he tried to teach me about its ways, so, inevitably, I am with him. I prefer his traditional form of drafting. I prefer it because, in this clause, "D" wears two hats. Wearing one, he committed the act; wearing the other, he failed to take appropriate steps to stop it. Perhaps because I am a bit of a traditionalist myself, I find it much easier to understand this drafting than that of the Bill. My confusion is compounded in this clause by a totally new form of criminal offence, which one does not have to prove one way or the other. Clause 4(2) does not state which way an offence has to be committed, which is a novel offence of omission. We are therefore moving into a very strange territory and I find the drafting of my noble friend Lord Renton much more comforting than the "D" and the "V" and one thing and another. Of course, I respectfully ask my noble friend certainly not to take the opinion of the House on the matter, because it will suffer considerable erosion in the light of our debates. One would therefore get into a hopeless mess by giving the parliamentary draftsmen instructions to do what they could to put it right. I hope my noble friend will not think me disrespectful if I suggest he does not seek the opinion of the House tonight.

Baroness Howarth of Breckland

My Lords, I spoke about this matter in Committee. Despite the fact that I have not been able to be present at much of this debate for other reasons, I only wish that I could be with the noble Lord, Lord Renton, because I admire him so much. However, I take the other view, simply because, as a social worker and not a lawyer, I find the drafting of the Bill much easier as it is. My colleagues, who are at the front line trying to do the day-to-day job, find "D" and "V" much easier than what is sometimes seen as traditional lawyerspeak.

Lord Carlisle of Bucklow

My Lords, at an earlier stage of the Bill, the noble Lord, Lord McNally, referred to me as "that wise old owl". All I can say is that I hope that I am wise enough not to get involved in any argument with the noble Lord, Lord Renton, about drafting. I do not propose to do so, but I want to ask one question on a point that he made.

What does the last line of subsection (5) mean? As I understand it, the subsection says that an "unlawful" act is one that, constitutes an offence, or … would constitute an offence, but for being the act of … a person under the age of ten"; in other words, if it is committed by a person under the age of 10, it is not an offence. Then it says: Paragraph (b) [the paragraph which contains that wording] does not apply to an act of D". Does that not mean by "D" if he is six or seven? Does it mean therefore that, if he commits an act, it is an offence?

Lord Mayhew of Twysden

My Lords, my noble friend has done the House a great service in reminding us once again of the importance of drafting. We all remember the seminal effect that the report of his great committee had all those years ago. However, I am afraid that I am an insufficiently wise old owl to suppress an impertinent desire to take issue on a minor matter. If my noble friend agrees, he might be able to remedy it at the remaining stage of the Bill.

It is a drafting matter. I venture to suggest that in his amendment, at line 4, the word "and" is superfluous if the word "who" appears in the next line. It is a grammatical matter. In the Bill as drafted, the word "who" does not appear at that point. He may on reflection think that I am not being too terribly impertinent in pointing that out.

Lord Renton

My Lords, I included the word "and" because it was in the Bill as drafted and it does no harm there—in fact, it has some advantage. I was merely trying to improve the drafting by getting rid of this new convention of using capital letters. It seemed to me that the word "and" could well be left in.

Lord Mayhew of Twysden

My Lords, that would be true if the word "who" had not been inserted into the next line, because it is not in the original text. Without going too heavily into it, I believe that I am right. I used to appear before my noble friend when he was recorder of Rochester, and I never thought that would be tangling with him on a matter of this sort. Perhaps I may compound it by saying that I believe "D" and "V" to be rather helpful.

Baroness Anelay of St Johns

My Lords, it will come as no surprise to the House that I am very happy to take lessons in drafting from my noble friend, who always has a way of making the difficult seem more intelligible. I certainly do not believe that a draftsman or draftswoman will be offended by any debate on t his matter; they might consider it a bit of serious levity, if there is such a thing, at the end of a long and testing day.

My noble friend is right to test drafting. With the examples behind us of the Sexual Offences Act 2003 and the Criminal Justice Act 2003, we are beginning to get into the world of alphabet soup. I am not too sure that that is always the right thing to do.

I am grateful to my noble friend Lord Carlisle of Bucklow for returning to a question I brought up in Grand Committee, about line 21 on page 3 of the Bill, which says: Paragraph (b) does not apply to an act of D". The Minister was kind enough to answer my question on that occasion, but I must admit that I still do not understand it and that I am still trying.

7 p.m.

Baroness Scotland of Asthal

My Lords, I have the vote so far as "Renton 2, Those against 4". That need not trouble the noble Lord.

I am grateful to the noble Lord for tabling this amendment. I commend him, if I may respectfully do so, for his industry in redrafting the clause to remove the letters "D" and "V", which denote the person charged with the offence and the victim respectively. I know that he mentioned earlier in debate that he was uncomfortable with the drafting, which he did not think was clear.

I am reluctant to agree to the amendment. This style of legislative drafting does not suit everybody, but it became clear in earlier debate that many of us find the use of initials very helpful. It is now a common form of drafting. I know that the noble Lord, Lord Renton, thinks that this is perhaps the first time. I regret to tell him that it is not. This device was used for example in the Criminal Justice Act 2003, the Sexual Offences Act 2003, and the Proceeds of Crime Act 2002. It was also used by the Law Commission in its proposed draft Bill, which accompanied its recent report on this issue, Children: their non-accidental death and serious injury (criminal trials) no. 282. I will not tire the House with a complete list of examples in earlier legislation where letters are used in an effort to simplify drafting. The list is very long indeed and includes Acts such as the Consumer Credit Act 1974, which contains references to persons from A to Z, and the pièce de résistance was probably the Local Government Finance Act 1988 which created the community charge. In that Act I found a very interesting calculation that I would like to share with your Lordships. At one stage it says, A × B /C is the formula to be used. Then, later on the following appears: (P × A/C) + (Q ×A/C × 1/5) I do not think we quite go into that territory, but the "D" and the "V" do have a certain utility and simplicity.

The noble Lord has added "or her" wherever the word "he" appears. I can quite see why he considers that important. But it is an even more long-standing tradition that in any legislation "he" is read as referring also to "she" and the singular is taken to include the plural. This is enshrined in the Interpretation Act 1978, and was stated explicitly there in order to make the draftsman's job easier for the future. So I think that, if I may very respectfully and gently say so, those amendments do not appear to be necessary.

More importantly, the changes that the noble Lord has made will not in fact work. This is because it is not clear which of the various "that persons" in the revised clause refer to the person who committed the act which killed the child or vulnerable person and which refer to the defendant who is before the court. The drafting would also remove the requirement that the defendant who knew of the risk to the victim, but did not take reasonable steps to protect that victim, must also have been a member of the household who had frequent contact with the victim. This is very important. If we delete this requirement we will be placing on everyone who knew of the risk to the victim a duty to take steps to prevent the harm, or face a criminal penalty. So this might include a neighbour, a doctor, a teacher or a social worker who was aware of the risk. Of course, those people would be doing what they could in their professional capacities, but they do not and should not face the same duty to intervene that is incumbent on a member of the household. The noble Lord's amendment would make the responsibility too wide.

If I may respectfully say so, the amendment of the noble Lord, Lord Renton, does help us because it demonstrates how very difficult it is to get the clarity we need and seek without being quite rigid about saying "D" and "V". I am positive that the noble Lord would not wish the confusion that I have just described to come about.

I am sorry that the explanation I gave on the last occasion was not sufficiently clear; I did try to make it so. Line 21 of page 3 of the Bill states: Paragraph (b) does not apply to an act of D". An amendment in Grand Committee sought to remove the provision, as the noble Baroness, Lady Anelay, said. Hansard will record, I hope, that I gave a full explanation. However, the purpose of the provision is to make it clear that subsection (5)(b) does not make unlawful the act of someone who is not criminally responsible because they are under the age of 10 or insane. I hope that that is clear and that the noble Baroness now understands it.

I commend the noble Lord, Lord Renton, for giving us perhaps one of the most delightful 10 or 15 minutes that we have had for some time.

Lord Renton

My Lords, I am grateful to the Minister, to the noble Baroness, Lady Howarth of Breckland, and to my noble friends for their kind words. However, I must confess that I think it immensely important that we should legislate in a way that ordinary people will understand and in a way that will be accurately quoted when statutes are cited. I must confess—I am grateful to the noble Baroness for pointing it out—that I did not realise that there were three, four or five precedents for this. I ought to have known about it but my research did not get me that far.

In view of what the noble Baroness said, I propose to ask leave to withdraw my amendment. However, I shall study very carefully what she said. If necessary, I shall come back to the matter at Third Reading, although I know that that is sometimes unusual and difficult. However, I think that this is a new departure about which we should have real scepticism. I think that the great mass of people who are obliged to obey or be guided by our laws will find it puzzling to find this new departure from the ways in which we have expressed our laws for generations—indeed, for centuries. Those ways are immensely important and have been copied all over the Commonwealth.

This new departure has, so far, not been justified and could cause trouble. As I say, I shall return to the point. I hope that the noble Baroness will think about this again. With those thoughts in mind, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton

My Lords, I beg to move that consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.