HL Deb 15 March 2004 vol 659 cc12-41

3.6 p.m.

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

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

Clause 23 [Disclosure of Information]:

Lord McNally moved Amendment No. 76: Page 13, line 30, leave out subsection (8) and insert— (8) Nothing in this section authorises the making of a disclosure which contravenes the Data Protection Act 1998 (c. 29). (8A) Notwithstanding subsection (8), any disclosure or processing of information under subsection (1) for the purposes set out in subsection (2) in performance of functions referred to in section 13 shall be deemed to be necessary to be processed for the exercise of any such functions for the purposes of the Data Protection Act 1998, in particular section 35 and Schedules 1, 2 and 3 thereof.

The noble Lord said: My Lords, Amendment No. 76 refers to Clause 23(8) on disclosure of information, which states: But nothing in this section authorises the making of a disclosure which contravenes the Data Protection Act 1998".

That matter was discussed in Grand Committee, but it is right to bring it back to the Floor of the House. During the passage of the Bill, there has been legitimate public concern about how different authorities have interpreted their responsibilities under the Data Protection Act. Concerns have been expressed by non-governmental organisations associated with domestic violence that an overenthusiastic interpretation of the Data Protection Act could undermine the code of conduct for implementing it.

The amendment seeks to clarify that nothing a service provider does which complies with the victims' code will put it in breach of the Data Protection Act. The voluntary bodies associated with implementing the Bill continue to be concerned. On one occasion, the Minister stated: There are circumstances where compliance with the code might be important. For example, compliance with the code might be relevant to the question of whether a person has committed an offence under the Data Protection Act 1998".

On another occasion, the Minister said: Any government revising the code in the future needs to ensure that it does not require the disclosure of information that would be contrary to the Act".

My amendment seeks to maintain the need to respect the Data Protection Act, but clarity is needed regarding the disclosure of information between the relevant agencies. That will be crucial to give effect to the code of practice for victims. A number of the agencies already have found a variance in police cooperation in sharing information. At this stage, we need assurances in the Bill that will make the sharing of relevant information the automatic rule.

Victim Support has experienced practical difficulties in operating the referral process and a lack of clarity in interpreting the requirement of the Data Protection Act 1998. Therefore, there needs to be such clarity in the Bill. However, the amendment leaves in place the existing reference to the overriding obligations imposed by the Data Protection Act.

The Minister knows from our discussions in Committee that I think that that is important. There is genuine public concern that the good intentions of the Data Protection Act may bring with them unforeseen circumstances and consequences in implementing other Acts that have equally important duties and responsibilities. I hope that by moving this amendment we give her the opportunity to put on record her and the Government's attitude to interpretation, and perhaps also to bring us up to date—as she did in Committee—on the various intergovernmental and other consultations that are going on to enable the Data Protection Act to be properly interpreted and public confidence to be fully restored with regard to the Act's operation. I beg to move.

The Chairman of Committees (Lord Brabazon of Tara)

My Lords, I should point out that if this amendment is agreed to, I cannot call Amendment No. 76A.

Baroness Scotland of Asthal

My Lords, as the noble Lord indicated, we talked about this issue in Committee; the debate can be found in Hansard at cols. GC 443–44 on 5 February.

I do not support this amendment—that will not surprise the noble Lord, Lord McNally. However, I am aware as—I think I made clear on the previous occasion—of the anxieties that Victim Support has about data protection legislation and its effect on the organisation's work with victims. In Grand Committee, I hope that I explained that the administrative protocols for passing a victim's personal details from the police to Victim Support had been approved by the Information Commissioner. This amendment now seeks to put beyond doubt that compliance with the victims' code of practice.

I am extremely grateful that Victim Support has signed up to deliver obligations under the code, which will not put individuals in breach of the Data Protection Act. I do not propose to repeat in detail the arguments I put forward in Grand Committee. The main reason for resisting the amendment then was that it is unnecessary and would cast doubt on the legality of existing arrangements and on data sharing in other contexts. That is still an important reason to resist the amendment. I know the noble Lord wants me to say a little more about the Act and I am very happy to do that because, as he pointed out, when I wrote to him and the noble Baroness, Baroness Anelay, about whether the code of practice should be admissible in criminal proceedings, I cited proceedings for an offence under the Data Protection Act as an example of when it might be relevant. The noble Lord said that because individuals could face criminal prosecution, they are entitled to more certainty about whether they are complying with the Data Protection Act.

The offence under the Data Protection Act which is most likely to be relevant is that under Section 55(1), which says that it is an offence for a person to disclose personal data, knowingly or recklessly, without the consent of the data controller". There are a number of exemptions from liability for this offence, set out in Section 55(2). These include, amongst other things, that the disclosure, was required or authorised by or under any enactment, by any rule of law or by the order of the court". It also requires that the person making the disclosure acted in the, reasonable belief that he had in law the right to obtain or disclose … the information … that he acted in the reasonable belief that he would have had the consent of the data controller if the data controller had known of the … disclosing", and that, in the particular circumstances … the disclosing … was justified as being in the public interest". Clearly, compliance with the code could be relevant to those defences. It does not, however, follow that there is ambiguity in the current drafting of the Bill or that service providers acting under the code should be given protection over and above that which is already available under Section 55(2) of the Data Protection Act. An individual who acts within the disclosure policy of his organisation, has the explicit consent of his organisation to disclose information, or reasonably believes that he has the right to disclose information will be protected. That will be the case whether or not the disclosure actually complies with the Data Protection Act. Therefore, it would make no difference if disclosure under the code were deemed to be compliant with the Data Protection Act.

The noble Lord also spoke about the Government revising the code in the future and the need to ensure that it does not require the disclosure of information which would be contrary to the Data Protection Act. However, this is not an argument for deeming information disclosed under the code to be compliant with the Data Protection Act. The point is that the Data Protection Act provides important safeguards to the citizen and that those safeguards need to be preserved. If disclosure under the code automatically complied with the Data Protection Act, it would effectively be open to a future government to override the Data Protection Act by means of secondary legislation. I know that is certainly not the noble Lord's intention. The fact that information is disclosed under the code will often be sufficient to ensure compliance with the Data Protection Act. However, in some cases—most notably those involving sensitive personal information—it will be necessary to ensure that other information and other requirements of the Data Protection Act are satisfied.

We are confident that the current draft of the code does satisfy those requirements but want to ensure that future versions also satisfy them. If there were a conflict between the requirements of the code and the requirements of the Data Protection Act, the Data Protection Act would prevail. The sanction for breach of the code is investigation by the Parliamentary Commissioner. We would expect the Parliamentary Commissioner to take into account the fact that the code had not been complied with because compliance with the code would involve breach of the Data Protection Act.

The noble Lord wanted further updates in relation to developments. I have nothing more to tell him over and above that which I outlined in Committee. As soon as I have fresh information I will make sure he, those in Committee and those here today who may be interested get notice of it.

3.15 p.m.

Lord McNally

My Lords, in Committee, the Minister told us that she chaired an inter-departmental domestic violence committee which she told us had expressed some of the same concerns that we had expressed in Committee. Has that committee made any progress in its considerations?

Baroness Scotland of Asthal

My Lords, I assure the noble Lord that this work by the committee which I chair is considered to be of the utmost importance. We are energetically trying to craft something which meets the needs of all practitioners. There is currently a draft that is being looked at by various departments, to see whether it should not be further and better perfected. We will certainly issue it as soon as that work is completed.

As I hope I indicated last time, it is very important for us to get this right. We absolutely agree with noble Lords who said that this whole issue is very important for practitioners. Regrettably, some are just misunderstanding how the Act operates and what they need to do to keep in tune with it. We can help them in this regard. I am hopeful that this will be a useful piece of work that can be shared across departments and those other agencies that would benefit from it.

Lord McNally

My Lords, in the light of that reply, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Scotland of Asthal moved Amendment No. 76A: Page 13, line 30, leave out "But

On Question, amendment agreed to.

Clause 24 [Victims' Advisory Panel]:

Baroness Anelay of St Johns moved Amendment No. 77: Page 13, line 36, after "appoint" insert "a minimum of ten

The noble Baroness said: My Lords, in moving the amendment I shall speak also to Amendments Nos. 78 to 81. I gave notice in Grand Committee it can be found at col. GC 447 of Hansard for 5 January—that I would need to probe on Report the nature and membership of the Victims' Advisory Panel. That is what the amendments do.

I am surprised that the drafting of Clause 24 means that the Government translate the existing Victims' Advisory Panel from an ad hoc body appointed by the Secretary of State to a statutory body in the twinkling of an eye, without actually giving us any idea of what the body does now or what it will do in future. We are asked to take an awful lot on trust by Clause 24(7), which simply states: The non-statutory Victims' Advisory Panel is to be treated as having been established in accordance with this section".

I remarked in Grand Committee that the Library had done its utmost to find out how the panel operates now, but had drawn a virtual blank.

The noble Lord, Lord Borrie, whom I am pleased, as always, to see in his place today, thought that I might be satisfied with the information in paragraph 91 in the Explanatory Notes. That paragraph is far too limited a source of information for the House to agree simply to transcribe the unofficial body into a statutory one.

I therefore tabled some Written Questions on 23 February to ask Her Majesty's Government: on how many occasions the Victims' Advisory Panel has met since March 2003; to list the members of the Victims' Advisory Panel and, where appropriate, the organisations that they appear to represent; and on how many occasions since March 2003 the Victims' Advisory Panel has reported directly to the Home Secretary and whether its reports are printed or presented by a government Minister. So far, I have had only one response to those three Questions, which arrived while the House was debating the Bill on Thursday.

When I looked back over the snippets of information that had been published about the panel, I noticed that its composition appears to be different from how it was set out in the Government's press release, in Justice for All and in the Explanatory Notes. I am trying to reconcile all those descriptions and work out what the Government's panel really is.

The press release stated that: The members of the Victims Advisory Panel have been affected by crimes including murder, rape and stalking, and many have experienced giving evidence in court".

That makes it clear that the members have personal experience of being victims of crime themselves. However, that is not what Justice for All describes. It refers to a body representative of organisations. Page 48 states, in paragraph 2.45: The Commissioner will be supported by a National Victims' Advisory Panel. This will be representative of victims' groups and others affected by crime, and will include community representation".

The description given in the Explanatory Notes about the current membership seems to show a confusion of those two models. Paragraph 91 states that the current membership comprises, ten voluntary lay members, who have direct experience of issues relating to victims".

We need to know whether that is personal experience, or whether they represent groups with experience of assisting victims.

Paragraph 91 also states that three members are co-opted to represent "wider victims' interests". What does that mean? What are those interests? It goes on to say that those three co-opted members are also, representatives of voluntary organisations to which the Government provides core funding".

That is why I ask what those organisations are. Will they continue to be co-opted to the new body? Will different bodies be represented? How do the Government define the community representation to which Justice for All refers? Is that the representation of national voluntary organisations, or does it refer to local community organisations?

The response that I received on Thursday 11 March was to my Question in which I had hoped that the Government might list the members of the Victims' Advisory Panel. In fact, the Minute Room slightly changed my wording, which I know is not always felicitous. I had asked the Government to list the members, and that was changed to "Who are the members". The Answer that I received was as vague as anyone in the Government could want, and as vague as I would not want. It reads: The panel consists of 10 voluntary lay members"— as the Explanatory Notes say— recruited through open competition in accordance with guidelines laid down by the Commissioner for Public Appointments—who have either experienced victimisation themselves, or are family members or very close friends of murder victims. In addition there are representatives from the following victims groups: Victim Support, Support After Murder and Manslaughter, Victims Voice and Birmingham Racial Attacks Monitoring Unit. The panel is chaired by myself"— the noble Baroness, Lady Scotland— and is also attended by Chris Leslie MP, of the Department for Constitutional Affairs, and Harriet Harman MP, the Solicitor General".—[Official Report, 11/3/04; col. WA 186–87.]

Senior representatives and officials also attend.

There is no mention of the three co-opted members, so we still do not know what they are—we do not know which bodies that receive public money are in the loop at the moment and whether they will continue to be. We do not actually know who the current members are. One assumes, unless the noble Baroness tells me differently, that by signing the virtually blank cheque in the Bill we are saying, "All those of you who have done such sterling work so far and worked so hard can carry on in the job". Alternately, will they complete their membership before a new system of appointing takes place?

We do not know the answer to other questions. How will the chairman be appointed? Will there be a change from the current chair, the Minister, to non-ministerial chairmanship? How will that run? How long will the members serve? Will any good governance procedures be put in place? Will there be a limit on the number of co-opted members? Who appoints them—the panel or the Secretary of State? Do the co-opted members have voting rights? All members who have been elected as councillors to local authorities will know that those are always vexed issues in governance terms.

We anticipate, of course, that the panel will have the job of giving very valuable advice to the Government on which they should then act, yet there is still no duty on the Secretary of State to pay its expenses if he considers it appropriate. It is still left open to the Secretary of State whether to pay the expenses or not, which I find extraordinary. In her response on 5 February, the Minister argued that it was common and accepted legislative practice to provide a power rather than a duty to pay expenses in such circumstances. I do not think that that necessarily makes it right, even if it has been practice.

I hope that the Government have thought again, and are able to give us some further and better particulars on what the body will be. In particular, has it even been consulted? The questions about its work since last spring go unanswered. I beg to move.

Lord Renton

My Lords, the Government have undoubtedly done right in Clause 24 on the Victims' Advisory Panel. However, the attention that my noble friend Lady Anelay has given to the detail is worthy of the Government's respect. She is absolutely right to assume that the members of the panel will be ordinary but experienced people who must not be reimbursed merely at the discretion of the Government. They will deserve to be reimbursed. Amendment No. 80 surely must be agreed to. Amendment No. 78 goes much further in ensuring a composition of the panel representative of people who are experienced, but are lay people. I hope that the Government will give the amendments very careful attention, because they are excellent.

Lord Borrie

My Lords, it has been extremely worthwhile for the noble Baroness, Lady Anelay, to have pursued—behind the scenes, and indeed through the amendments today—her inquiries on what type of body the Victims' Advisory Panel is at the moment in its non-statutory form and should be in a statutory form.

To some degree there is, in both the Explanatory Notes and the amendments, a good deal of vagueness. For example, I am not sure what "lay persons" or "issues" mean in this context. Those words can be found in the Explanatory Notes; perhaps they are all right there, but to translate them into statutory form would probably not seem appropriate. Some of the words of the amendments are at least equally vague. The persons appointed should, appear to be representative of victims' groups and others affected by crime". There is no doubt that one big group affected by crime is the prisoners' wives, spouses, girlfriends, families and so on. They probably need support in a variety of ways, yet I do not think they are intended to be covered by the support to be given by the Victims' Advisory Panel.

As for community representation, I do not know what that means. Is it geographical, ethnic, religious or local? It could be any of those. I do not wish to be critical of the noble Baroness because she is entitled—and it is helpful to us all at this stage of the Bill—to probe what is intended. I am not sure that I want the Government to be too precise at this stage as to who should be on this panel. I certainly do not want the Government to use vague words in what will eventually be the Act, which would not be particularly helpful because they would have so many different meanings. I associate myself with the noble Baroness to this extent: I am at least equal with her in eagerly awaiting to hear the Minister's response.

3.30 p.m.

Baroness Anelay of St Johns

My Lords, I will try to keep just within the rules for Report and say to the noble Lord, before he sits down, that he may be interested to hear that two Written Answers, to complete the trio, have just arrived hotfoot from the Doorkeepers. If they had arrived half an hour ago, I might have saved the House about five minutes of its time. I have no doubt the noble Baroness, Lady Scotland, will give an even better explanation.

Lord Carlisle of Bucklow

My Lords, that may be the answer to the question I was going to ask. If we are setting up a statutory panel, surely we should at least know what its intended size is and, as the noble Lord, Lord Borrie, said, the type of person likely to be on it. If it is a fact that the first panel is to be formed by turning what is, at the moment, merely an advisory panel into a statutory panel, presumably—the information may be in the Written Answer to which my noble friend referred—the membership of that advisory panel should be public knowledge to this House, so that we may know who we are appointing to this statutory panel.

Baroness Scotland of Asthal

My Lords, I thank the noble Lord, Lord Carlisle, and my noble friend Lord Borrie, for the acuity of their questions about this panel.

The noble Baroness, Lady Anelay, has kindly indicated that her reason for this amendment is to seek greater clarification about the administration of the current non-statutory panel, which this clause will put on a statutory footing. I am sorry that she has had difficulty in establishing how the panel currently works. I assure the noble Baroness that we are not seeking to hide the panel's light beneath a bushel, but it is a relatively new body which met for the first time almost exactly 12 months ago, and the substance of its work is still taking shape. I am grateful for the opportunity to inform the House in more detail about the administration of the panel.

As the noble Baroness said, the members can be grouped into three categories. The lay membership comprises 10 volunteers who either have experienced victimisation themselves or are close relatives of those who have been killed. I am very happy to present the whole list of the membership but will give noble Lords one name that they will recognise: that of Jayne Zito. Noble Lords will know that she falls into both categories. First, her husband was a victim of crime and, secondly, she is also a representative of a group of people who have become victims of mental health patients. The same is true of virtually all the 10 lay members, whom I could outline.

There are three co-opted members: David Hines, a member of the North of England Victims' Association; Maxie Hayle, the Birmingham Racial Attacks Monitoring Unit representative; and Wendy Robertson of Victims' Voice. The victims' groups involve Theresa Reynolds of Victim Support and Rose Dixon of Support After Murder and Manslaughter, which your Lordships will know represents those who have suffered as a result of murder. The 10 lay members, whose names are now in the public domain—I am very happy to send them to the noble Baroness—are people or family members who have had direct experience of being victims, and who participate in various groups dealing with that type of victimisation.

These lay members, who will serve initially for three years, were recruited through open competition, overseen by an independent assessor in accordance with the Cabinet Office guidelines on public appointments. The second category is a small group of co-optees, which I have just outlined: Victim Support, Support After Murder and Manslaughter, Victims' Voice and the Birmingham Racial Attacks Monitoring Unit.

The third group comprises senior representatives from the criminal justice agencies, who will present papers or respond to points that are made by the lay members. The whole point of the group is to put a human face on some of the issues we are dealing with, so that there can be a real understanding, from the victim's point of view, about how some of the changes we are making and the procedures we are putting in place can be viewed. For example, when we created the "victim's walk-through" on the website, we asked the victim's panel to look at what we had done, to identify whether there are other things they, or their members, might have wished to see, to help us to adapt it.

It is my great pleasure to chair the panel, and a Minister from the Department for Constitutional Affairs and the Solicitor General will also attend. It is proposed that there should continue to be a ministerial chair, not least because there can be a very direct correlation between that and what the victim's panel has to say about the impact that our policies and procedures may have. Ministers have the advantage of hearing from them in a very direct way and there can be a very immediate conversation between the panel members and those who have ministerial responsibility for them. Noble Lords will know that I am the Minister responsible for victims and witnesses issues, and therefore it is only right and proper that I chair those meetings.

The aim of the panel is to advise the Home Secretary, the Lord Chancellor and the Attorney-General of the views of victims and witnesses of crime, and generally to contribute to developing and safeguarding the rights of victims. We have so far had five meetings. The first was in March 2003, and others were in May, July and October of that year. We had our first meeting this year, in February. As an advisory non-departmental public body, the panel is required to produce an annual report. The panel's first annual report will be published at the end of April 2004 and will give details of the issues it has discussed during its first full year of operation.

We would like the Victims' Advisory Panel to continue to be a flexible and dynamic group, and the noble Baroness will not be surprised to hear that we are not prepared to be as prescriptive about its administration as her amendment would suggest. I am sure she will forgive me if I do not deal with each and every item of her amendments in detail. I understood the purpose of it was to allow me to give more information.

I would, however, like to reaffirm what I said during Grand Committee about the payment of expenses to lay members of the panel. I explained that it is fully intended that lay members will be reimbursed for their expenses as outlined in their terms of appointment. We would be in breach of our contract with them if we failed to do so. But it will remain a discretion of the Secretary of State as to what expenses would be appropriate in each case. I would therefore wish to retain the "may" rather than the "must" in the drafting.

I hope these explanations have been helpful, but I reiterate that it is not my intention to accept any of the proposed amendments to Clause 24. I do, however, understand the thrust of them and hope I have been able to reassure the noble Baroness both of the purpose of the panel and of the fact that it will be properly reimbursed for moneys properly expended by it. I assure the noble Baroness that my purpose and hers are absolutely in accordance on these matters.

Baroness Anelay of St Johns

My Lords, I am grateful to the Minister. She has now resolved some of the inconsistencies that appeared between the various publications about the Government's proposals on the composition and the role of the Victims' Advisory Panel. In Grand Committee we paid tribute to its work. I am sure that in its new form it will continue to gather that approbation.

I accept what the Minister says about expenses. If a case were to come to light where appropriate expenses were not reimbursed, she might well find that there could be an outcry as a result.

I am grateful to all noble Lords who took part in the debate. The noble Lord, Lord Borrie, was right; my drafting was not full of acuity; on the other hand, I pinched the Government's drafting in some respects, as I said that it was not quite right, particularly with regard to the use of the words "lay members". If the noble Lord is to remain for the Second Reading of the Asylum and Immigration (Treatment of Claimants, etc.) Bill, I can promise him that I will offend yet again by using the term "lay members" in a different context. I value the role that lay members play.

I am grateful to the Minister, and beg leave to withdraw the amendment.

Amendment by leave withdrawn.

[Amendments Nos. 78 to 81 not moved.] Clause 25 [Grants for assisting victims, witnesses etc]:

Baroness Anelay of St Johns moved Amendment No. 82: Page 14, line 26, at beginning insert "Subject to subsection (1A),

The noble Baroness said: My Lords, Amendment No. 82 is a paving amendment for Amendment No. 83, to which I shall also speak.

In Grand Committee I raised the issue of the manner in which the Secretary of State would make grants to organisations that assist victims. I asked that question because I wanted to get some idea about the ground rules that would operate when the Secretary of State gave out any available funds. I did not seem to get very far, so I have tabled the amendment to prompt the Government to give us a flavour of the kind of organisations that they anticipate may be successful in an application for funds.

I do not expect the noble Baroness to say that specific organisations will be successful—I am not daft enough to think that she would be enticed to answer that anyway. I appreciate that some level of flexibility is needed. We need to know whether funds will be available—within a finite range of money, we know—for national-only organisations, or whether they will go to regional and local organisations. How will the decisions be made? For example, is it anticipated that a tendering system will be started whereby organisations submit bids for particular sums? Are we to go through the same kind of screening as happens for organisations when they look to the lottery funds for assistance? How will that work?

The amendment contains a very haphazard list of organisations—that makes it sound as though I am being rude towards the organisations listed. The organisations that I have mentioned are all those that have briefed me heretofore during our debates. In addition, the Minister will notice that, as a red rag to a bull, I have placed at the top of the list the Criminal Injuries Compensation Authority. I did so just to remind noble Lords that we are not yet finished with the Bill, even at the end of Report and Third Reading, because it is very likely that the Government will bring it winging back with substantial amendments that affect the authority, the manner of the disposition of its funds and, indeed, its very existence.

The organisations listed are not the only ones to which I anticipate the Government might consider giving money. Broken Rainbow, which I shall meet very soon, has pointed out to me that none of the organisations specifically would assist those who have suffered domestic violence and are from groups that would consider themselves to be gay, lesbian, bisexual or transgender. In addition, the list includes no organisation specifically targeted at disability groups. I have listed only those who have had contact with me so far, but I shall certainly continue to have meetings with others.

This is a probing-only amendment to ensure that, before we get to the end of this major stage, we will have a better idea of how grant funding will proceed. I beg to move.

3.45 p.m.

Baroness Scotland of Asthal

My Lords, I understand that the noble Baroness intends to use this as an opportunity to probe. I shall assist her as much as I can in that regard.

The purpose of the clause is simply to provide a statutory authority for regular government grants to voluntary sector bodies and is consistent with Treasury best practice. It is not intended to signal that more funding will be available, nor that we intend to redistribute the money currently directed to victims organisations. Noble Lords will see that Clause 25 is permissive in tone, because it simply provides that the Secretary of State may, pay such grants to such persons as he considers appropriate in connection with measures which appear to him to be intended to assist victims, witnesses and other persons affected by offences". Should any additional funds become available, I can assure the noble Baroness that my right honourable friend the Home Secretary will consider very carefully the needs of victims and witnesses when deciding which organisations to fund or to continue funding.

Much of what we have done to join up the system, to work with the local criminal justice boards and to identify local needs has helped us to craft better responses than those that we were able to provide in the past. That certainly proves very helpful. Our pilot projects have involved the prosecution and the police working together to support witnesses and victims. Noble Lords will see that, together with what Victim Support and other organisations can do, that is important cross-cutting work that has given us some very good indications about how we may target funding, or perhaps how we should consider targeting it in future. This clause is merely permissive.

I see no reason why the Secretary of State should be required to consult victims organisations before grants are paid, as he will be better placed than they are to assess the overall financial position and the overall needs that arise across the system. Organisations remain free to lobby government—they do so most energetically—about their funding needs. Any arrangements for grants paid to organisations are between the Government and that particular organisation, and would very rarely be subject to consultation with third parties. Wider strategic decisions—for example, about longer-term funding plans—would also be considered first within government before views are sought more widely. We see no reason why that process should be subject to the constraints of legislation.

I understand why the noble Baroness would like to entice me into giving a little more, but I regret that on this occasion I must disappoint her.

Lord Carlisle of Bucklow

My Lords, I declare an interest as a former chairman of the Criminal Injuries Compensation Board. Can I take it from the Minister's answer that there is no intention of changing the current means by which the board is funded?

Baroness Scotland of Asthal

No, my Lords. The process will remain the same. Noble Lords will know that we are carrying out consultation. As I have said in the past, we will await the outcome of the consultation about any changes that are made. However, that will not be the way in which it is funded entirely. Noble Lords know the areas on which we seek views about any proposed change.

Lord Carlisle of Bucklow

As we are setting up a statutory victims body, is there any intention to change the way in which the board is funded?

Baroness Scotland of Asthal

No. my Lords. I hope that I have been clear; the board will continue to be funded as at present. The consultation is dealing with changes that we propose to the ambit of things that may be included or excluded. At the end of that consultation, we will decide whether any further or other alteration will be needed.

Baroness Anelay of St Johns

My Lords, I thank the Minister for her response, although I am not sure whether it takes us much further down the line of knowing how the moneys will be distributed. Of course the Minister did not take the bait about deciding whether it would be tendering against "lobbying", to use her word. Organisations are to be able to lobby, and there is a world of difference between that and a more organised system of tendering. However, I accept the position as she has explained it.

The Minister realises that organisations will listen carefully to her words. She has not signalled that more funding is to be made available, more that it will be a redistribution. The second point might be a consolation, but the first might not in the light of press interest ahead of the Budget on Wednesday which anticipates that the Home Office budget is one that is to get the chop. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 83 not moved.]

Lord Dubs moved Amendment No. 84: Page 14, line 30, at end insert— (3) The Secretary of State may exempt victims of domestic violence and their dependants who arc subject to immigration control and who have sponsors from the restriction on public funds, and may recover such funds from the sponsor (as defined by section 113 of the Immigration and Asylum Act 1999 (c. 33) (recovery of expenditure on support from sponsor)) of the victim. (4) The Secretary of State may pay such grants or make available funds to such bodies or individuals as he considers appropriate in connection with measures intended to assist victims of domestic violence who are subject to immigration control and their dependants and who otherwise have no recourse to public funds and do not have sponsors within the meaning of subsection (3), for the purposes of funding emergency accommodation and living costs.

The noble Lord said: My Lords, the amendment is concerned with a small number of victims of domestic violence who are also subject to immigration control. In moving it, I am grateful for the support of the noble Baronesses, Lady Anelay and Lady Walmsley, who have added their names to the amendment.

When we debated a more wide-ranging amendment in Grand Committee, my noble friend on the Front Bench indicated that she understood the purpose of the amendment and that while she could not give it her support, she certainly showed a deep understanding of its underlying issues. I hope that she will show a similar understanding of this amendment.

I understand that under the terms of the Social Security (Consequential Provisions) Act 1992, the Government can recover funds from sponsors. My amendment is in two parts. The first concerns the recovery of money from sponsors to finance the costs consequent on people leaving their homes because of domestic violence. Therefore the Government have the power to recover such money. I am also aware that for sponsors to be liable, they give a written undertaking to maintain the person from abroad. However, it appears that, currently, such undertakings are required only from sponsors of dependent elderly relatives, not for spouses. However, immigration rules permit the Secretary of State to require written undertakings from all sponsors. Introducing such a requirement would require only a change in policy, not in the rules.

I thank the Southall Black Sisters group for its help in providing useful briefing and information for this amendment. It estimates that 90 per cent of all victims of domestic violence subject to immigration control will have sponsors. The first proposed new section covers those. It is clear to me that were the Government to make sponsors stick by their undertakings, most of the costs of dealing with the consequences of such domestic violence, affecting a very vulnerable group of people, would not be borne by the taxpayer—the Exchequer—but would be recovered from the sponsors themselves. That is the main aim of the amendment.

However, that would leave a small number of persons, perhaps 60 or so a year, who in equity would need similar support but, because they do not have sponsors, require some backing. The amendment suggests that that could be provided by means of a grant, so as not to undermine the basic principle of the benefits system. The estimate of the total grant required would be something in the region of £80,000.

The Government recently made a contribution of £40,000 to the Women's Aid Last Resort Fund, which was matched by another £40,000 from a charitable trust. That sum is roughly equivalent to what would be needed to provide grant support for those victims who are not sponsored.

We are not asking for an enormous sum, rather a tiny one. Moreover, the main thrust of the amendment is to ensure that the Government accept that sponsors should be made liable for victims of domestic violence when they are subject to immigration control. This is a simple proposition. I beg to move.

Lord Bassam of Brighton

My Lords, before debate continues, perhaps I was remiss in not reminding noble Lords that certain procedures apply at Report stage. After the Minister has spoken, unless there is a question for elucidation, no other Members of your Lordships' House should again rise to question the Minister further.

Baroness Anelay of St Johns

My Lords, I am sure that when my noble friends ask questions of the Minister, they are following immediately on what has just been said. They preface their remarks with phrases like, "Before the noble Baroness sits down", to keep well within the rules. My noble friends are old hands at this and they teach me a lot.

I rise briefly but strongly to support the amendment moved by the noble Lord, Lord Dubs, and I add my thanks to the Southall Black Sisters group for its careful briefing both before Grand Committee proceedings and subsequently. The group has taken up in a very practical way several issues that we debated in Grand Committee.

The organisation does not seek to undermine any of the existing rules—which I think is the most important point made by the noble Lord, Lord Dubs. The majority of people have sponsors, and the noble Lord, Lord Dubs, made it clear that the number of those who do not is relatively small. So we are not talking about large funds to be made available for grant purposes, and we are certainly not asking for benefit rules to be undermined. I hope that the Minister will be able to respond favourably to this matter, or perhaps to take us a little further forward so that we can think about it again between now and Third Reading.

Lord Renton

My Lords, this is surely an amendment which fills the gap in our law and the noble Lord, Lord Dubs, has put forward a strong case for it. I hope that, even if the Government do not accept the wording, they agree with the substance here and ensure that this matter is covered.

Baroness Walmsley

My Lords, I, too, rise to support the amendment. I am sure that all who favour this amendment were grateful to the Minister who, in Grand Committee, expressed her understanding of and concern for these few very vulnerable women. At the time she said that women who apply under the domestic violence rule would be fast-tracked. However, many of us are still concerned that fast tracking may still take four months and that some of the funding now being made available would be so for only two months. Additionally, the changes about to be made as a result of the Asylum and Immigration (Treatment of Claimants, etc.) Bill could well mean that women are left without recourse to public funds for longer than that. Even under the present rules, people who apply outwith the domestic violence rule and who need this kind of support are not covered, along with those subject to appeals at the time, many of which are brought by the Home Office rather than by the appellants themselves.

I echo the words of the noble Lord, Lord Dubs, in saying that this provision would not require an enormous amount of money. There are relatively few women for whom the money could not be recovered from the sponsor, but they are extremely vulnerable. Moreover, if the amendment is agreed, it would enable Britain to fulfil the rights of women enshrined in the convention covering the elimination of all forms of discrimination against women. These rights have already been acknowledged and upheld by what has been done in other countries when dealing with this kind of appellant. I refer to the USA, Canada. Australia and Denmark. On that basis, I hope that the Minister will look kindly on the amendment.

Baroness Howe of Idlicote

My Lords, I rise briefly to express my support for those proposing this amendment. An extremely persuasive case has been made by the Southall Black Sisters group. As we have heard, only small sums are required and it would be a sad injustice if these women were excluded from the important provisions of this Bill.

4 p.m.

Baroness Scotland of Asthal

My Lords, from the comments made by my noble friend Lord Dubs and other noble Lords, I know that your Lordships are aware that I am sympathetic to and concerned for this group of women. I hope, therefore, that what I say will assist, although I fear that it may in part also disappoint.

The amendment tabled by my noble friend and the noble Baronesses, Lady Anelay of St Johns and Lady Walmsley, would give the Secretary of State the power to exempt domestic violence victims still subject to immigration control from restrictions on access to public funds and to recover such funds from the sponsor. I understand the basis on which that suggestion is made. In addition, the amendment would give a power to the Secretary of State to fund organisations and individuals that seek to assist domestic violence victims who are still subject to immigration control and do not have sponsors from whom the recovery of public funds can be made.

As I said in Grand Committee, I am grateful for the opportunity to set out what the Government are doing to protect victims of domestic violence who come to the country as the spouse or partner of a British citizen or someone who has indefinite leave to remain. I will not rehearse everything that I said in Committee, but I stress that the Government's position is clear: we are concerned to give assistance to victims of domestic violence who are still subject to immigration control, if they have come to this country for settlement on the basis of marriage or relationship to a British citizen or a person with indefinite leave to remain. However, we do not intend to amend the immigration and benefits rules for that one category, as that could lead to avoidable difficulties with fraudulent and other applications. It could perhaps also be an invitation to people to introduce further delay. Clearly, it would not benefit the real victims of domestic violence or other people if such a delay were to take place. Those women and other applicants need speedy determination of their application.

We have given further thought to the proposal on sponsors' undertakings. We thought that it deserved further scrutiny, to see whether we could use it to meet the needs of the situation. We have some concerns about it. The idea of recovering funds from sponsors could lead to more problems, particularly for the victim of domestic violence who may be brought into contact inadvertently with their violent partner.

The practical difficulty of recovering money from sponsors is clear. For example, if the marriage or relationship has broken down, the sponsor may argue that he does not wish to support the individual but is prepared to return them to their country of origin. We know that sponsors have said, "No, I am not willing to maintain my undertaking now, and I wish to resile from it". Would we be justified in insisting that the sponsor should nevertheless pay in such circumstances? We are keen to keep an open mind on the question of holding sponsors to account and will continue to monitor the situation to see whether we can do anything with it. However, we see that there may be practical and other difficulties that may prove to be insurmountable. We will continue to consider the position.

The balance that we have struck through the changes to the immigration rules is the priority given to such applications in the Immigration and Nationality Directorate and the exemption from charges for indefinite leave to remain. Those measures 'are designed to give the necessary support and help to that small number of domestic violence victims, without relaxing the immigration and benefit rules.

I hear what the noble Baroness, Lady Walmsley, says about the time limit being perhaps four months, but she knows that we are using our best endeavours to fast-track such cases. They get the priority that they need because we understand how the situation can be for those who find themselves almost falling between two stools.

The second part of the amendment deals with the powers of the Secretary of State to provide grants for bodies or individuals, in connection with measures intended to assist victims of domestic violence who are subject to immigration control and their dependants and who otherwise have no recourse to public funds and do not have sponsors within the meaning of subsection (3)". Of course, the Secretary of State does not need a statutory power to make such grants. Therefore, I am pleased to confirm what was said by my noble friend Lord Dubs and to tell the House that we have agreed a one-off grant of £40,000, to be provided to Women's Aid to bolster its last resort fund. In Committee, I said that we would try to see what we could do to fill that gap, and I am pleased that the Government have been able to match the £40,000 found by Women's Aid to do it. As noble Lords may know, Women's Aid has run the fund for several years. Its members can apply for funding from it to cover the living expenses of women who are making an application for indefinite leave to remain because of domestic violence. It will help to meet the rent and living costs of a small number of cases in refuges that cannot be covered by the "Supporting People" arrangements. It is in addition to the overall spend throughout Whitehall on domestic violence issues. This year, we are investing £84 million.

I believe that that combination of measures will give such victims of domestic violence the support and help that they need at a difficult time. However, I must say that the majority of such women come as spouses to the sponsors. As such, they, like any other wife who does not live with her husband because she has had to leave, are entitled to apply for ancillary relief. Legal aid is available in ancillary relief proceedings, under Section 1 of the Domestic Proceedings and Magistrates' Courts Act 1978. It could be done in a few weeks, but the question of enforcement must be considered. However, there are several possible avenues, and we are trying hard to work together on the protocols that exist between different departments and different organisations and to make sure that the network of support that is available to victims of domestic violence is as tight as we can make it.

I cannot give noble Lords the total answer that they would have liked, but I hope that they will accept that the Government not only recognise the problem but continue to do all that we can to address it, with appropriate vigour.

Lord Dubs

My Lords, I am grateful to my noble friend. I listened carefully to what she said, and I noted the point about ancillary relief under the legal aid scheme. As regards the main thrust of the amendment, which is to do with recovering money from sponsors, the Minister, while indicating that there were difficulties with the procedure, said that she would keep an open mind on the matter. From that, I take it that she will keep the issue under review and that, if anything else can be done, she will bring the work forward.

Some of the domestic violence concerned may be criminal behaviour. If the pressures are such that the victim leaves the country, the chance of a successful prosecution of the person who has perpetrated the violence will be so much smaller. In considering all the issues, will my noble friend also take into account the need for us to have a robust criminal justice system, so that anybody committing a criminal offence such as certain types of domestic violence will not escape prosecution because the victim has been forced to leave the country, for understandable reasons?

I shall read my noble friend's speech in more detail. I thank her for being open-minded in her approach, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Bridgeman moved Amendment No. 84A: After Clause 25, insert the following new clause "AMENDMENTS TO THE YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999 TO EXTEND THE CATEGORY OF WITNESSES ELIGIBLE FOR ASSISTANCE ON GROUNDS OF FEAR OR DISTRESS ABOUT TESTIFYING Section 17 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (witnesses eligible for assistance on grounds of fear or distress about testifying) is amended as follows. After subsection (4) insert—

The noble Viscount said: My Lords, we are grateful for the support for the amendment from the noble Lord, Lord McNally, and the noble Baroness, Lady Walmsley.

The amendment is identical to one that I moved in Grand Committee. In her reply, the Minister suggested—I hope that I understood her correctly—that domestic violence was less easy to define than sexual offences and that such violence covered, a whole spectrum of behaviour".—[Official Report, 9/2/04; col. GC 468.]

I suggest that the need for special measures is related not to the seriousness of the crime but to the relationship of the victim to the perpetrator. The behaviour complained of may have been relatively mild, but that pales into insignificance when the victim is faced with the often terrifying possibility of confronting the perpetrator in court. In many cases, the victim will have had previous experience of the courts in any number of contexts. For many of the victims that we are considering, that experience may well have convinced them that courts are intimidating, unsympathetic and even hostile places.

I come back to what I said in Grand Committee. Against that background, I invite your Lordships to see the difference between the victim's solicitor being able to say, "Don't worry. You have the right to special measures. It's yours. You will not have to confront the perpetrator across the court". But as the Bill currently stands, the solicitor can only say, "I cannot be absolutely sure but there is a good chance that the court will permit you to have special measures".

In that second scenario, there is a further practical consideration which has been brought to our notice recently by Victim Support. That is, that magistrates are frequently reluctant to make an order for the use of screens when the application is made on the day of the trial. That is a potentially very serious point. The Minister's reply to the point regarding the application to the court for special measures, which I raised in Grand Committee, was that it was likely that these would be granted. I refer to cols. GC 466 to 469 of the Official Report of 9 February 2004. If what Victim Support now tells us is substantiated, I am sure your Lordships will agree that it will make the case for the rights to special measures for victims of violence to have statutory entitlement very much stronger. I hope that the Minister will give the matter very careful consideration when she replies.

That could make all the difference in many cases between the victims agreeing to give evidence and being too frightened to do so. That is well recognised by the Minister, who, if I may be permitted to quote her, said in Grand Committee: We … want to … ensure that women know what opportunities are available to them so that they receive the succour they so desperately need to enable them to have the courage to come forward, to come forward early, and to be supported through the process so that they are not discouraged from obtaining the justice they so rightly deserve".—[Official Report, 9/2/04; col. GC 469.]

The Minister also suggested in Grand Committee that my amendment was too widely drawn. That amendment, which is reintroduced, in bringing the rights of a victim of domestic violence into line with those relating to sexual offences, makes use of the definitions contained in the Family Law Act 1996.

The Minister suggested in Grand Committee that that amendment will catch offences where the special measures are not needed. That is quite possible. However, I suggest that these will be far outweighed by the many cases where victims will be able to come to court to give evidence in the absolute certainty—that is the whole point of the amendment—that they will be free from the terrifying prospect of having to confront the perpetrator across the court.

I should have liked to have brought to the Minister's notice, before this debate, the point about court practice. From these Benches we are grateful to the noble Baroness for agreeing that Victim Support can meet the Government before Third Reading. In view of these two considerations I should like to advise the Minister that we will not seek to divide the House on this amendment. I beg to move.

Baroness Walmsley

My Lords, from these Benches, we support the amendment. One of our objectives must be to encourage as many victims of domestic violence as possible to come forward to talk about their suffering and to be prepared to do something about it. But, as the Minister pointed out during the debate, evidence given in domestic violence cases may not be as sensitive as that given in sexual offences cases. Therefore, witnesses may not automatically need the additional protection of special measures. However, we argue that while the nature of the crime may not be as sensitive in that it may not be sexual, it is sensitive in that the crime takes place within the home and in the context of a power relationship.

It can be very hard for a victim to admit that a seemingly minor threat or slight physical contact can have such a devastating effect on him or her, but, in the context of domestic violence, that is the case. We are all different: something that might run off one person like water off a duck's back might completely devastate someone else. I am not, of course, talking about insignificant slights or insults, but alleged behaviour which is regarded as criminal. So it is important that a victim does not feel demeaned in court, particularly as their self-esteem will already have been knocked about a good deal, and their body as well, by domestic violence.

I also support the point made by the noble Viscount, Lord Bridgeman, that, according to Victim Support, courts are reluctant to make an order for screens on the day of the trial, even though that measure is already available to them. This amendment seeks to make absolutely sure that a woman is quite clear that she will not have to face her assailant across the court. It is to be hoped that she will then be much more likely to come forward and give evidence.

4.15 p.m.

Baroness Scotland of Asthal

My Lords, I am very glad that we are all in agreement that not only is the domestic violence issue a sensitive one, but it comes in various forms, as the noble Viscount, Lord Bridgeman, and the noble Baroness, Lady Walmsley, have made plain.

I entirely accept what the noble Baroness said, that instances that take place in the home can be very hurtful to talk about in a public place. However, I hope that the noble Baroness and the noble Viscount will know too that one size does not fit all, because there are some women who are abused in the home who wish to take advantage of an opportunity to say to their partner in an open forum: "I am going to tell everybody what you did to me. I am going to stand up for myself, and I am not going to allow you to see that you have obliged me to take special measures to hide from you". Some go one way; others go another. The real thing that we are saying is that you have to be sensitive to the individual case, and that we cannot put all these cases into one group and treat them in the same way.

Therefore I refer noble Lords to the point that I made in Grand Committee, as alluded to by the noble Viscount, Lord Bridgeman. I reiterate that Sections 16 and 17 of the Youth Justice and Criminal Evidence Act 1999 already enable victims of domestic violence to have access to special measures where a court decides that is appropriate. The amendment is therefore unnecessary.

I take the point made by the noble Baroness and the noble Viscount about decisions being made on the day. Noble Lords will know that in terms of practice we are working very hard, together with the Crown Prosecution Service, the police, the court and Victim Support, to make sure that an assessment of the victim's and witness's needs takes place before the hearing so that we can maximise the opportunities: first, for the victim to turn up to give evidence; secondly, to get the sort of support that they will need to enable them to give their evidence, and, thirdly, to do so. These practical issues are very much to the forefront of the planning that is going on in local areas to make sure that those needs are addressed.

Therefore, automatic access to special measures may not be appropriate in all cases of domestic violence because they may not actually respond to the needs of that particular victim or witness. We believe that, due to the nature of the evidence given, special measures are always appropriate in cases dealing with sexual offences, and this is the only case where there exists automatic eligibility unless the witness refuses such assistance.

We have been careful to limit automatic access only to children and to those adult cases where the evidence to be given is consistently and always of a highly sensitive nature. That is not in any way to suggest that in a case of domestic violence the evidence may not be sensitive. Clearly the quality of the evidence given by such a witness may be diminished by reason of fear or distress. In such cases the courts have the ability to grant a special measures direction. Therefore we believe that the balance that we have struck between this single exception and relying on the court's discretion to grant special measures in all other cases where the court considers it appropriate is the right one. I reiterate that victims of domestic violence have access in all cases where the court decides it is appropriate.

We are continuing to implement those provisions and it may help noble Lords if I outline where we are now, because those provisions are coming in. From June, the vulnerable or intimidated witnesses in magistrates' courts will have access to screens and evidence in private. We are aiming to extend the availability of live links and video recorded evidence in chief from spring 2005, subject to sufficient securities being in place, and successful piloting of alternatives to full transcription in less serious cases.

As I said in the debate last time, I would expect courts to be sensitive to the needs of victims of domestic violence and grant special measures where it would be appropriate. For these reasons, I cannot accept the amendment, but I hope that noble Lords know that I am with them in the spirit that those who need special measures should certainly have them.

Viscount Bridgeman

My Lords, I am most grateful to the noble Baroness, Lady Walmsley, for her support for this amendment. I think we are not entirely in agreement with the Minister on the question of "one size fits all". However, the outcome of the meeting between the Government and Victim Support will be interesting, and we shall also be interested to hear the further explanation of the point raised by Victim Support in relation to this amendment. In the mean time, I beg leave to withdraw the amendment.

Baroness Scotland of Asthal

My Lords, before the noble Viscount sits down, I hope I made clear that I said "one size does not fit all".

Amendment, by leave, withdrawn.

Clause 26 [Amendments and repeals]:

Baroness Scotland of Asthal moved Amendment No. 85: Page 14, line 35, leave out "enactments mentioned in Schedule 5 are repealed" and insert "provisions mentioned in Schedule 5 are repealed or revoked

The noble Baroness said: My Lords, this set of amendments deals with a range of necessary consequential amendments.

The first, Amendment No. 85, replaces "repealed" with "repealed or revoked", in order to ensure that the Bill reflects the correct terminology for Northern Ireland. The next set of amendments will ensure that the new offence in Clause 4 is dealt with in a similar way to other homicide offences where that is appropriate, and other dangerous offences where that is appropriate. I will briefly run through what each amendment does.

Amendment No. 86 adds a new offence, when committed in respect of a child or young person, to those listed in Schedule 1 to the Children and Young Persons Act 1933. The schedule sets out offences to which certain special provisions apply. The provisions include presumption and determination of age. Amendment No. 92 will insert the new offence into the list of those excluded from the Home Secretary's power, under Section 32 of the Criminal Justice Act 1982, to make an order for early release of classes of prisoners. Amendment No. 94 will add the new offence to the list of serious arrestable offences contained in the Police and Criminal Evidence Act 1984.

Amendment No. 96 will create a presumption that, where there are criminal proceedings for the new offence, any coroner's inquest will be adjourned until after those proceedings. It will also ensure that the coroner is informed of the result of the criminal proceedings for the new offence. Amendment No. 99 will ensure that my noble and learned friend the Attorney-General's consent is needed to institute proceedings for the offence if the proceedings are brought more than three years after the death.

Amendment No. 102 will add the offence to those for which a person may be disqualified from working with children. Amendment No. 104 will add the offence to those offences regarding which a sexual offences prevention order can be made. Amendments Nos. 106, 113 and 115 are minor drafting amendments. Amendment Nos. 89 and 97 are consequential on extending the offence to Northern Ireland.

I should perhaps say that Amendment No. 106 is a drafting amendment adding the title of the offence to a consequential amendment already in the Bill, which adds the offence to Schedule 15 to the Criminal Justice Act 2003. I see that the noble Lord, Lord Carlisle of Bucklow, is not in his place, which is why I have the bravery to say that.

Amendments Nos. 113 and 115 would delete the word "or" in the Coroners Act 1988 and from Section 19 of the Law Reform (Year and a Day Rule) Act 1996, where the word "or" is no longer needed because of the previous amendment. Amendments Nos. 122 and 123 merely transfer the transitional and transitory provisions from Clause 27 to a separate schedule. This is due to the fact that the number of provisions has grown following the extension of some of the clauses to Northern Ireland.

Finally, Amendment No. 123A amends the extent of the Bill. It reflects the fact that provisions relating to causing or allowing the death of a child or vulnerable adult, homicide reviews, common assault as an arrestable offence, restraining orders on acquittal, multiple offending and grants for assisting victims and witnesses all extend to Northern Ireland.

Following discussions with colleagues in the Scottish Executive, we have amended the extent clause to make clear that Clauses 24 and 25 do not extend to Scotland. This amendment is also consequential on the extension of the Clause 5 evidence and procedure to courts martial.

After that exhaustive explanation, I beg to move the amendment.

On Question, amendment agreed to.

Schedule 4 [Minor and consequential amendments]:

Baroness Scotland of Asthal moved Amendments Nos. 86 to 99: Page 23, line 27, at end insert—

"Children and Young Persons Act 1933 (c. 12) In Schedule I to the Children and Young Persons Act 1933 (offences against children and young persons with respect to which special provisions of the Act apply), after "Infanticide" insert— An offence under section 4 of the Domestic Violence, Crime and Victims Act 2004, in respect of a child or young person." Page 23, line 27, at end insert—

"Criminal Procedure (Insanity) Act 1964 (c. 84) In section 8(2) of the Criminal Procedure (Insanity) Act 1964 (interpretation), after the definition of "duly approved" insert "local probation board" means a local probation board established under section 4 of the Criminal Justice and Court Services Act 2000;". Page 23, line 27, at end insert—

"Criminal Appeal Act /968 (c. 19) In section 15 of the Criminal Appeal Act 1968 (right of appeal against finding of disability), in subsection (1), for the words "the jury has returned" substitute "there have been". In section 37 of that Act (detention of defendant on appeal by the Crown to House of Lords), in subsection (4). for paragraph (b) substitute— (b) a hospital order made by virtue of section 5(2)(a) of the Criminal Procedure (Insanity) Act 1964 (powers to deal with persons not guilty by reason of insanity or unfit to plead etc),". B1 In section 51 of that Act (interpretation), in subsection (2A), for "6, 14 or 14A" substitute "6 or 14". Page 23, line 27, at end insert—

"Children and Young Persons Act (Northern Ireland) 1968 (c. 34)

In Schedule 1 to the Children and Young Persons Act (Northern Ireland) 1968 (offences against children and young persons with respect to which special provisions of the Act apply), after "Infanticide" insert— An offence under section 4 of the Domestic Violence, Crime and Victims Act 2004, in respect of a child or young person." Page 23, line 27, at end insert—

"Juries Act 1974 (c. 23) C1 (1) Section 11 of the Juries Act 1974 (ballot and swearing of jurors) is amended as follows. In subsection (5) omit paragraph (b). In subsection (6) omit ", (b)". Page 23, line 27, at end insert—

"Criminal Appeal (Northern Ireland) Act 1980 (c. 47)

In section 19(1A)(a) of the Criminal Appeal (Northern Ireland) Act 1980 (legal aid), after "appeal under" insert "section 10A of the Domestic Violence, Crime and Victims Act 2004,". Page 23, line 27, at end insert—

"Supreme Court Act 1981 (c. 54)

In section 55 of the Supreme Court Act 1981 (constitution of criminal division of Court of Appeal), in subsection (4)(a)(iii) omit the words "of a jury". Page 23, line 27, at end insert—

"Criminal Justice Act 1982 (c. 48) In Schedule 1 to the Criminal Justice Act 1982 (offences excluded from early release provisions), in Part 2, after the entry relating to the Sexual Offences Act 2003 (c. 42) insert— Domestic Violence, Crime and Victims Act 2004 Section 4 (causing or allowing the death of a child or vulnerable adult)." Page 23, line 27, at end insert—

"Mental Health Act 1983 (c. 20)

D1 In section 69 of the Mental Health Act 1983 (application to tribunals concerning patients subject to hospital orders etc), in subsection (2)(a)—

  1. (a) for "below," substitute "below or";
  2. (b) omit "or section 5(1) of the Criminal Procedure (Insanity) Act 1964".
E1 In section 71 of that Act (references by Home Secretary concerning restricted patients) omit subsections (5) and (6). F1 In section 79 of that Act (interpretation of Part 5) omit paragraph (b) of subsection (1). Page 23, line 27, at end insert—

"Police and Criminal Evidence Act 1984 (c. 60) In Schedule 5 to the Police and Criminal Evidence Act 1984 (serious arrestable offences), in Part 2, after paragraph 23 insert— Domestic Violence, Crime and Victims Act 2004 24 Section 4 (causing or allowing the death of a child or vulnerable adult)." Page 23, line 27, at end insert—

"Prosecution of Offences Act 1985 (c. 23)

In section 16 of the Prosecution of Offences Act 1985 (defence costs), in subsection (4) (power of Court of Appeal to make defendant's costs order), after paragraph (c) insert "or (d) allows, to any extent, an appeal under section 16A of that Act (appeal against order made in cases of insanity or unfitness to plead);". Page 23, line 27, at end insert—

"Coroners Act 1988 (c. 13)

In section 16 of the Coroners Act 1988 (adjournment of inquest in event of criminal proceedings), in subsection (1)(a), after sub-paragraph (iii) insert— (iv) an offence under section 4 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult); or". In section 17 of that Act (coroner to be informed of result of criminal proceedings), in subsections (1) and (2), at the end of paragraph(c) insert "; or (d) an offence under section 4 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult),". Page 23, line 27, at end insert—

"Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12))

In Schedule 5 to the Police and Criminal Evidence (Northern Ireland) Order 1989 (serious arrestable offences), in Part 2, after paragraph 14 insert— Domestic Violence, Crime and Victims Act 2004 15 Section 4 (causing or allowing the death of a child or vulnerable adult).'' Page 23, line 27, at end insert—

"Criminal Appeal Act 1995 (c. 35)

In section 9 of the Criminal Appeal Act 1995 (references by Criminal Cases Review Commission to Court of Appeal), in subsection (6), for the words "a jury in England and Wales has returned" substitute "in England and Wales there have been". Page 23, line 27, at end insert—

"Law Reform (Year and a Day Rule) Act 1996 (c. 19)

In section 2 of the Law Reform (Year and a Day Rule) Act 1996 (restriction on institution of proceedings for fatal offence), in subsection (3), at the end of paragraph (b) insert ", or (c) an offence under section 4 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult)."

On Question, amendments agreed to.

Baroness Thomas of Walliswood moved Amendment No. 99A: Page 24, line 11, leave out from "shall" to end of line 13 and insert "use the power conferred by subsection (2)(b) to make a non-molestation order, whenever violence has been used or threatened, or where there is a risk of significant harm to the applicant or any relevant child

The noble Baroness said: My Lords, please excuse the confusion on the Liberal Democrat Benches. The noble Lord leading this team is in no way implicated in the confusion.

First of all, this amendment was not put at Grand Committee, so it is a new amendment at this stage. It amends Clause 3(2) of Schedule 4 of the Bill, which is of course in itself an amendment of Clause 42 to the Family Law Act 1996. It reflects concerns on the part of Women's Aid. I should say, because I have been having a discussion with somebody who is very concerned about violence in the domestic setting, that the fact that these concerns come from Women's Aid does not mean I am a paid-up member of the clan that says only women suffer violence. That is not true, and I want to make that point clear.

Clause 1 of this Bill amends Part 4 of the Family Law Act to make a breach of a non-molestation order a criminal offence, but it does not extend to criminalising breaches of occupation orders issued in the case of domestic violence under the Family Law Act 1996. The reason given for not making a breach of occupation orders a criminal offence is that a history of violence is not a prerequisite for granting an occupation order, as such orders not only deal with occupation and exclusion from the family home but also other matters relating to property. We have heard the noble Baroness making this point on several occasions during the course of this Bill.

However, while the assumption may be that, where domestic violence is present, non-molestation orders are also likely to be granted alongside the occupation orders, there is no requirement for this to be done in all cases where violence has been used or threatened, if the occupation order itself contains measures that are considered effectively to provide the same remedy.

It is the experience of Women's Aid that occupation orders may be applied for and granted without non-molestation orders. The present wording of the Bill means that the court may consider making a non-molestation order, but it does not make this compulsory, even where violence has been used or threatened. This could mean that the perpetrators of domestic violence could breach an occupation order, for example by visiting the property, loitering outside or other similar behaviour prohibited under an occupation order, but that, in the absence of a non-molestation order, such breaches would not be arrestable offences.

A mechanism is needed to ensure that in all cases where violence is used or threatened the breach of any relevant order is a criminal offence. An obligation on the court in cases where violence has been used or threatened, or where there is a risk of significant harm to the applicant or any relevant child, to issue a non-molestation order whenever an occupation order is issued, would ensure that victims are better protected, and a more effective and co-ordinated approach by relevant enforcement agencies. I beg to move.

Baroness Scotland of Asthal

My Lords, in cases of domestic violence, applications for occupation orders are nearly always made alongside applications for non-molestation orders. As the noble Baroness knows, and I think she has already outlined it in her remarks, by virtue of Section 42(2)(b) of the Family Law Act 1996, the court already has the power to make a non-molestation order on its own initiative, although paragraph 3 of Schedule 4 of the Bill amends the 1996 Act so as to place the court under an obligation to consider, whenever it is deciding whether to make an occupation order, whether it should also make a non-molestation order. The noble Baroness will know that that is a new duty which will basically highlight for the court the need to consider whether what it is doing gives rise to the necessity to consider a non-molestation order, even where no party has applied for such an order. It is an important new impetus for the courts to highlight this change. We consider that it will provide vital protection by ensuring that, whenever the court believes it is needed, a non-molestation order will be put in place.

The effect of the noble Baroness's amendment would be to force the court, when making an occupation order, always to make a non-molestation order when there is actual or threatened violence or a "risk of significant harm". The Government believe that this is unnecessary as it should be for the court to decide whether a non-molestation order is appropriate in the circumstances of each individual case. I have little doubt that in the circumstances to which the noble Baroness alluded, a court would make a non-molestation order. But we believe that the preservation of the court's discretion as to what to do for the best is important.

The amendment would also have the effect of removing the obligation on the court to consider making an order in the less serious cases that would not fall within the amendment—namely, where violence has not been used or threatened or where there is no risk of significant harm to the applicant or to any relevant child.

Noble Lords will know that in certain cases the making of the non-molestation order becomes necessary because you have changed the rights of occupation. That sometimes is the impetus for difficulty and the court must be left in a position where it can make an assessment as to whether or not that level of protection is appropriate.

There may be occasions when the actions complained of are sufficient to warrant the issue of a non-molestation order—for example, low-level but continuing harassment. Our changes to the Family Law Act would place a duty on the court to consider issuing a non-molestation order for such actions at the same time as an occupation order, thereby giving the best and most appropriate protection to the victim. I know that it is not the noble Baroness's intention to prevent the court from so doing, but her amendment could leave some victims without the protection of a non-molestation order.

Finally, I should also point out that the amendment would result in cases where the applicant for an occupation order found that the court had no option but to make a non-molestation order, regardless of either the applicant's wishes or how much time had passed since the violence occurred. For those reasons, I hope that the noble Baroness will understand why I cannot accept her amendment.

Baroness Thomas of Walliswood

My Lords, I thank the Minister for that extremely clear explanation of her difficulties with the amendment and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Baroness Scotland of Asthal moved Amendment No. 100: Page 25, line 10, after ""relative"" insert— (a) for "or nephew" in paragraph (b) substitute ", nephew or first cousin"; (b)

The noble Baroness said: I am grateful to the noble Baroness, Lady Walmsley, for raising in Grand Committee on 9 February the issue of whether or not cousins should be added to the list of associated persons. I was concerned that any reference to cousins should be strictly defined to make it consistent with the definition of the relatives already in the Family Law Act 1996. I agreed to take the matter away for further deliberations. After careful consideration I believe it is right that first cousins should be given the same protection of the Family Law Act 1996 as other family members such as brother, sister, uncle, aunt, niece or nephew.

I hope that the amendment is perfectly straightforward. It incorporates a reference to first cousin in the list of relatives as set out in Section 63(1)(b) of the Family Law Act 1996, as amended by paragraph 8(2) of Schedule 4 to the Bill.

Perhaps I may take this opportunity to speak to Amendment No. 116, which is consequential on Amendment No. 7, which has been accepted and which repeals Section 41 of the Family Law Act. I beg to move.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendments Nos. 100A to 107: Page 25, line 26, at end insert—

"Crime (Sentences) Act 1997 (c. 43)

11A (1) Schedule 1 to the Crime (Sentences) Act 1997 (transfers of prisoners within the British Islands) (as amended by Schedule 32 to the Criminal Justice Act 2003) is amended as follows.

(2) In paragraph 8 (restricted transfers from England and Wales to Scotland), in sub-paragraphs (2)(a) and (4)(a), for "264" substitute "246A".

(3) In paragraph 9 (restricted transfers from England and Wales to Northern Ireland), in sub-paragraphs (2)(a) and (4)(a), for "264" substitute "246A"."

Page 25, line 26, at end insert—