Joint Committee on the Draft Domestic Abuse Bill
Oral evidence: Draft Domestic Abuse Bill, HC 2075
Tuesday 2 April 2019
Ordered by the House of Commons to be published on 2 April 2019.
Members present: Mrs Maria Miller (Chair); Lord Blair of Boughton QPM; Baroness Burt of Solihull; Lord Farmer; Diana Johnson; Gillian Keegan; Alex Norris; Lord Ponsonby of Shulbrede; Liz Saville Roberts; Helen Whately.
Questions 1-64
Witnesses
I: Lucy Hadley, Campaigns and Public Affairs Officer, Women’s Aid, Andrea Simon, Public Affairs Manager, End Violence Against Women, and Ellie Butt, Senior Policy and Public Affairs Manager, Refuge.
II: Olive Craig, Rights of Women, Rachel Robinson, Principal, Justice Domain, Equality and Human Rights Commission, and Karla McLaren, Government and Political Relations Manager, Amnesty International UK.
Witnesses: Lucy Hadley, Campaigns and Public Affairs Officer, Women’s Aid, Andrea Simon, Public Affairs Manager, End Violence Against Women, and Ellie Butt, Senior Policy and Public Affairs Manager, Refuge, gave evidence.
Q1 Chair: Welcome to our witnesses and members of the gallery who have joined us for our first evidence session for the Joint Committee on the Draft Domestic Abuse Bill. We are very grateful to our witnesses for the time they have taken to come here today, and I know it takes a great deal of time to prepare. We are immensely grateful, so thank you for that. You will be aware that this is an important way in which Parliament—both the House of Commons and the House of Lords—scrutinises Government legislation. We are incredibly grateful for your input into this process.
Before we start the questioning, which is going to be conducted in the usual way with Members from both Houses asking about specific areas, would you please give your name and organisation?
Lucy Hadley: I am Lucy Hadley, campaigns and public affairs officer at Women’s Aid. We are the national domestic abuse charity and we are a federation of 180 local member organisations across England. We have sister federations in Wales, Scotland and Northern Ireland as well.
Andrea Simon: I am Andrea Simon, public affairs manager at the End Violence Against Women coalition.
Ellie Butt: I am Ellie Butt and I am the senior public affairs manager at Refuge, which is the largest single provider of specialist domestic abuse services and services for survivors of other forms of gender-based violence.
Chair: Our friends the Victorians who built this place were not very good at acoustics, so we would be grateful if everyone could lean in and project into the microphone. We have standing room only in the gallery. Thank you; it is great to have so many people in.
Q2 Lord Ponsonby of Shulbrede: I have questions about the scope of the draft Bill. First, in your view, how effective is the Bill likely to be in tackling domestic abuse? What are your main concerns about its scope?
Lucy Hadley: We really welcome the Government’s ambition and vision for the proposed Domestic Abuse Bill, and the promise that it will transform the response to this issue. We support most of the measures in the Bill and welcome them as positive steps forward. We are concerned that it is fairly narrowly criminal justice-focused. It is important to remember that official statistics show that just one in five victims will ever talk to the police about domestic abuse. With a law that focuses largely on crime, policing and the courts, we will miss most survivors, who will turn to other public services for help. At Women’s Aid we want to see practical changes that will make a difference to survivors’ lives, be that in areas such as welfare reform, housing, employment and healthcare. We would like the Bill’s scope to be widened to cover those kinds of issues.
We support calls from the all-party parliamentary groups on domestic violence and abuse and on ending homelessness for priority need legislation to be extended to tackle some of the housing barriers faced by survivors when they leave an abusive relationship. Measures like that would make a practical difference to survivors’ lives, and we will be pushing for those changes in the Bill.
Andrea Simon: We too welcome some of the measures in the Bill. We welcome the intention to ratify the Istanbul convention and to broaden the definition to include economic abuse and to recognise the impact on children as victims, but we have concerns that, despite the international framework and our UK domestic policy framework comprehensively being based on well evidenced understanding that this is a crime that disproportionately affects women, the Bill itself is not on the face of it gendered. That is a key concern, as well as the scope being domestic abuse in isolation, which we do not feel is a true reflection of women’s lives and how women experience different forms of abuse.
Crime survey data shows that nearly half of sexual assaults against women are committed in a domestic abuse context—so by a partner or ex-partner. That figure is likely to be higher, because rapes within relationships are known to be less likely to be reported to the police. The interlinked nature of different forms of abuse should be reflected in this Bill. There should be a more nuanced understanding of that.
The Bill should be underpinned by the statutory guidance. Crown Prosecution Service statistics show that a large proportion of attrition in rape cases are in domestic abuse-related rapes, and we do not think there is any significant resource or policy development going towards those.
Our other main concern is that there is still a postcode lottery in terms of access to support and services. The Bill is so criminal justice-focused that it relies to a great extent on victims self-identifying, coming forward and reporting, without doing a huge amount to tackle the barriers that some women face in doing that. The scope is potentially discriminatory because it neglects the contexts and needs of some victims, in particular migrant women and their children.
Ellie Butt: We welcome the Domestic Abuse Bill. It contains important and welcome measures, particularly the domestic abuse protection order and the creation of a domestic abuse commissioner. Those are important steps forward, but the narrow focus on criminal justice really concerns us, too. Just 15% of the women in our refuges last year reported the abuses experienced to the police. It really is a small proportion of survivors who go down the criminal justice route at the moment, so we want the Bill to be broadened to tackle other areas of the public sector that are really important to creating an environment where survivors can seek support, and to remove some of the barriers to women living free from abuse. For example, in the welfare system we would like the Bill to reform some of the recent measures that have increased barriers for survivors, such as the single household payment and the long delay between application and receiving benefit income. Those are really pressing issues for the women we support.
Like Women’s Aid and the APPG on domestic violence and abuse, we want priority need to be extended to survivors of abuse. It is crucial that, alongside this Bill, we find a sustainable way for specialist services to be funded, because they are at crisis point at the moment. If this Bill achieves its aims, it should drive a culture change in domestic abuse and we should see more women coming forward for support, so it is essential that both the public services and the voluntary sector services that they rely on are there. We are concerned that at the moment there is no commitment to funding and finding a sustainable model for specialist services alongside this piece of legislation.
Q3 Lord Ponsonby of Shulbrede: Thank you. My next question, which you have covered to a certain extent already, is: have the Government got the balance right with the proposed statutory definition of domestic abuse? As a supplementary, should the impact of domestic abuse on children be explicitly recognised in this legislation?
Lucy Hadley: Getting the definition right is crucial for guiding not only policies and strategies, but priorities and funding at local level and in public sector agencies, and getting that understanding of domestic abuse across all areas of the public sector that survivors might turn to for help. We share EVAW’s concerns that the gender inequality underpinning domestic abuse is not recognised and we support the Home Affairs Select Committee’s recommendation that the definition should apply to all sexes, but that gender inequality should be explicitly recognised in the legislation. The Istanbul convention provides a clear blueprint for how the Government can do that and we would like to see that reflected in our domestic law here.
In terms of the specific impacts on children, seeing or hearing the ill-treatment of another is recognised as a form of child abuse, but that is quite focused on physical violence alone. We see a bit of a gap in how coercive control and children’s experience of coercive control and domestic abuse is recognised in law. We know that living with coercive control has long-term and devastating impacts on children’s lives. They do not just hear or see it; they experience coercive control as part of that family unit. We would like the impact of that to be better recognised in law, and that could be done through this Bill or through amending existing legislation for children.
More broadly, the protection and support available for children must be central to this Bill and to the non-legislative package that the Government have committed to. We see more children than women in refuge, but there is no dedicated funding system for supporting children affected by domestic abuse, and that is a massive gap. We really need children to be at the heart of our response to this crime, and not just as an optional extra.
Andrea Simon: EVAW would agree. I have spoken about the need for the definition to be gendered and to acknowledge the relationships to inequalities. It is also important that the definition centres coercion and control and those dynamics within an intimate partner relationship, because they very much speak to some powerful cultural ideas about male and female roles and how men are entitled to treat women, and the justifications and stereotypes for abuse and controlling behaviour. That is all central to how frontline services can identify abuse, and it is also important for commissioners of services to understand, so feel the gendered nature of that is really important to emphasise.
I will also say that within the supplementary guidance it is important to make clear that there should be facts that talk about the prevalence and disproportionate impact of this as a crime on women and girls, and to include the different types and forms of abuse, including discussion of forced marriage and honour-based violence, because of how that is extremely linked to domestic abuse. It should also include examples and cases that illustrate how threats concerning a woman’s immigration status and control of documents in the application processes are common features of domestic abuse for some victims, for example migrant women. That must be supported by clear and robust statutory guidance, which will be a useful tool to enable frontline professionals to understand this issue.
Q4 Chair: May I ask the first two speakers to clarify one point on which I am not clear? Are you saying that you agree or disagree with the non-gendered nature of the legislation? Do you disagree with that, or do you think it is fine but that you need a caveat?
Andrea Simon: No, we disagree.
Lucy Hadley: We disagree.
Q5 Chair: So you think it should be gendered.
Andrea Simon: It should be gendered. In any case, statutory guidance should emphasise that with facts that show the prevalence and disproportional impact of domestic abuse on women and girls.
Q6 Helen Whately: I just want to pick up on that point. Andrea, you said that you would like that to be included in the statutory guidance. How do you think that will work and what difference it will make in practice if the Bill emphasises the additional impact on women?
Andrea Simon: It is important that anyone who comes into contact with victims of domestic abuse does not think that this crime happens to everyone in the same way, because it does not. If you are explicit about how prevalent it is and its disproportionate impact on women and girls, that will help professionals to understand that this is something they need to be mindful and aware of. If you have a statutory definition, that plays into the services that local commissioners will commission. If they are looking at domestic abuse, they must understand that they need to provide specialist women’s services, because that is the cohort of victims who need those services in many local communities. If you are not clear from the outset and within the guidance about how different forms of violence against women and girls interlink, that will play into the types of services commissioned, and continue the lack of specialism for different groups of women, including BME women, migrant women and disabled women. It is important to make clear all those intersections at the outset.
Q7 Helen Whately: You do not think that there is already an awareness that women are disproportionately affected?
Lucy Hadley: Unfortunately, we see some very damaging local decision making in this area—really quite dangerous gender-neutral responses and contracts being issued for domestic abuse services. That continues to be a real issue. We know the Government have a fantastic cross-Government violence against women and girls strategy, but that is not always reflected at local level. In reality, all victims—male or female—need a good response, and gender matters in that. Gender-separate services do make a difference, and we must be clear about that.
Ellie Butt: I largely agree with my colleagues from Women’s aid and EVAW that the definition should be gendered. Domestic abuse is a form of violence against women and girls, and that understanding is not there in every service and throughout society in the way we would like. One of the Government’s aims with the definition is to drive culture change and challenge myths and stereotypes around domestic abuse. We think it is crucial that that is set in the context of the fact that women are disproportionately likely to experience abuse and to experience repeated abuse and serious injury, and they are much more likely to be killed as a result of domestic abuse.
We would also like the definition clearly to separate different types of abuse. For example, we would like intimate partner violence to be defined distinctly from other forms of abuse that might take place in a household—for example, abuse between siblings. At the moment those things are all lumped together in the definition, which we do not think helps those tasked with identifying and responding to domestic abuse to understand it and to ensure that the right responses and services are in place. So as well as the gendered focus, we would like intimate partner violence to be clearly defined.
Q8 Lord Ponsonby of Shulbrede: One thing I reflect on is that, for all sorts of reasons, men who are victims of domestic violence are even more reluctant to come forward and admit they are victims. Do you think by having the initial definition gendered rather than neutral as it is currently worded will make it even less likely that men would admit to being victims of domestic violence, because you are framing it right at the top as a gendered issue?
Lucy Hadley: It absolutely has to apply to both sexes. The definition cannot just apply to women. As I said, the Istanbul convention and other international conventions that the UK Government are a signatory to make it very clear that anyone can be affected, but there is a disproportionate prevalence impact and very specific dynamics that underpin male violence against women, of which domestic abuse is one form.
In terms of the support and help for men, the Government are doing increasing work to tackle male victims of these kinds of crimes with new strategies and position statements, which is something we absolutely support. All victims need to have a good service, but gender really matters in those services and separate services for women and men are a real priority. It must apply to all, but it is important that we recognise from the outset that they are two very different phenomena.
Andrea Simon: I echo that. It is not about minimising men’s experience or saying that they are not also victimised. They also deserve good strong policy making in this area. We do not think that talking about the prevalence and the fact that women are disproportionately victims and men are disproportionately perpetrators of domestic abuse will in any way minimise the responses to men. They should be part of the Bill, but we need to reflect gender and dynamics.
Ellie Butt: We agree with that as well. We are not saying that the Bill or the definition should not apply to men. If the Bill is going to work to improve understanding and increase awareness, we have to be clear what we are talking about, which is largely domestic abuse as a cause and a consequence of gender inequality in society. At Refuge we run services for men and women and we provide services for male victims, but we provide gender-specific services for women and we think that is the only way to understand domestic abuse, respond to the abuse women have suffered and help them to recover and lead lives free from abuse. Being gender specific is hugely important. It does not preclude offering that support to male victims as well.
Q9 Liz Saville Roberts: The Bill proposes establishing the office of domestic abuse commissioner, effectively along the lines of the anti-slavery commissioner. The Home Affairs Select Committee has already recommended that the Government review the proposals with a view to strengthening and increasing the resources and independence of the commissioner. I seek your advice on any proposed changes to the role and its power.
Ellie Butt: We largely agree with the Home Affairs Select Committee that the role of the commissioner needs to be independent and have sufficient powers and resources to carry out the role. We are concerned that the commissioner has been advertised as a part-time role, with a budget of around £1 million a year, which we do not think will be sufficient in the light of the scale of domestic abuse in this country and the real challenges that currently surround the provision and consistency of specialist services. That is one issue.
We also really want a violence against women and girls commissioner, as opposed to a domestic abuse commissioner. Lots of specialist services are not domestic abuse only; they are services for victims of different forms of violence against women and girls. In some of the local areas that have best practice in commissioning, they commission to violence against women and girls local strategies. That is something we really support and encourage. If a violence against women and girls commissioner is tasked with improving provision and consistency of commissioned services, it really should have that violence against women and girls focus.
The commissioner also need real teeth to make recommendations and have those responded to. There are a lot of problems with the landscape of commissioning at the moment—not only funding cuts but dangerous commissioning models. For example, people sometimes want us to provide refuges for men and women together, which is dangerous and something we would not do. Some areas end funding altogether and do not have any provision of specialist services. We see local connection rules placed on services in some areas despite the well-known fact that many victims of abuse have to flee to different areas to be safe. There is a lot of work for the commissioner to do, and we really want the commissioner to have the tools to make a real difference. We think those would be stronger powers and a larger budget, and a VAWG focus would really help.
Andrea Simon: I agree with Ellie. I do not want to repeat the same points, so I will just say that I am really glad to hear that the Home Office is considering strengthening independence and providing more budget. We should be learning from the example of the anti-slavery commissioner; that role perhaps has suffered from a lack of independence. There are considerations around who the potential domestic abuse commissioner reports into. We have some concerns about categories of victim such as migrant women. Since their situation is so deeply impacted by immigration policies and the Home Office is the holder of immigration enforcement, there could be a conflict in its representing the interests of that group of victims to its very best ability. Perhaps the potential domestic abuse commissioner could answer to the Cabinet Office or some other Department.
In general, our view is that we should have had a VAWG commissioner and that, whatever shape the commissioner takes, it must be very deeply rooted in an understanding that it will need to work across different forms of abuse, rather than concentrating on domestic abuse in isolation, to be effective. That is not how services deliver. They do not often deliver in silos; they support women with a number of different issues, and therefore we need a commissioner who has a really strong grasp of that—a strong grasp of sexual violence, for instance—and can hold different agencies to account.
We would like the commissioner to have specific duties for more marginalised victims of domestic abuse, including black and minority ethnic women and girls and, as I have said, those with insecure immigration status and their children. There are some particularly difficult situations for specialist BME services in the way they operate currently. They have been hardest hit by competitive tendering and austerity cuts. Local commissioning has replaced many services with more generic providers, who can provide economies of scale and the like but do not have the level of expertise and never meet the same level of self-referral rates for BME women, who will go to their local specialist service. In the context of a more than 50% reduction in funding for BME refuge provision in the last seven years, it is really important for the commissioner to home in on that. They have the potential to have a real impact if there is true oversight and some level of accountability within their role.
Q10 Liz Saville Roberts: Lucy, answer generally as you see fit, but because Welsh Women’s Aid is the national adviser with the national strategy arising from the Violence against Women, Domestic Abuse and Sexual Violence (Wales) Act 2015, I am also interested in the interface here between Wales and devolution, and this commissioner’s role being an England and Wales role, so I would be grateful if you engaged with that as well.
Lucy Hadley: I share the points my colleagues have made about the potential of this commissioner. We continue to face a complete postcode lottery in service provision across England and Wales. We have a situation where nearly one in 10 refuges that responded to our annual survey last year had no local authority funding at all. In 2017-18, 60% of referrals to refuges were declined, mainly because of lack of space or capacity. Many services are at absolute crisis point. If the commissioner is to make a difference, we need to see not only a commissioner who will make recommendations but one who will compel action and intervene where things are going really wrong. My colleagues have already pointed out some of the very damaging local commissioning practices that are widespread and that we really hope this commissioner will be able to take on in that role.
In terms of the Wales legislation, I would have to go back and ask my colleagues in Welsh Women’s Aid. I know that they have had a national adviser role to support and underpin the violence against women and girls action. There are some really important lessons and learning to be taken from that role and how effective it has been as we develop the commissioner post here.
Chair: Does anyone want to add anything on Wales?
Liz Saville Roberts: Just as an aside, it interests me that we are dealing with a matter that affects England and Wales, and yet we have separate legislation in Wales. It is very important for us to know to what degree those are interfacing effectively, or otherwise, and whether anything is being missed or is overlapping, as well as good practice or otherwise. That is one of my roles here.
Chair: Would our witnesses write to us with regard to that really important issue that Liz has brought up?
Q11 Diana Johnson: I have just one more question. As I understand it, in Scotland, I think last week, a Scottish commissioner took up their role. Is that a full-time post, do you know?
Ellie Butt: I am not sure. I can look into that.
Q12 Diana Johnson: But there is a Scottish commissioner.
Lucy Hadley: The Scottish Act came into effect just yesterday, which again has some really important lessons for the English legislation.
Chair: We can find out. To give clarity to our witnesses, the Committee has written to the Home Secretary to ask that a final decision is not made on the commissioner until we have deliberated on these issues. We have done that, and the letter will be published.
Q13 Lord Blair of Boughton: I agree with your view that if the Bill only concentrates on justice matters, it will fail. On the other hand, we have to get the justice measures right, so I will ask your views on about four of the suggested changes. I will just read them out.
The first one is the provision to stop survivors of domestic abuse being cross-examined by the perpetrator or alleged perpetrator in family courts. Secondly, is it a good idea to put the domestic violence disclosure scheme on a statutory footing? Thirdly, do you have any concerns about the domestic abuse protection order that is being brought forward as an idea? Lastly, thinking about that, can you give me your views on a breach of that order being in itself a criminal offence, which I gather there are very divided opinions about? Perhaps I will start with Andrea—pick any of those four, or anything else.
Andrea Simon: My colleagues will speak a bit more about the family courts. I will say briefly that there is indeed a real need for co-operation between the court jurisdictions. Many victims of domestic abuse see their perpetrator sanctioned in the criminal court; that does not seem relevant when they are in the family court setting. We welcome the attention paid to that and the intention to stop cross-examination in family courts.
With regard to putting the DVDS on a statutory footing, yes, a statutory footing should raise awareness of the scheme, which should help to ensure that it is embedded into best practice across police forces. Again, with any awareness raising, there is a need also to ensure the immediate availability of support and advice services for those who are vulnerable to experiencing abuse or who are already in abusive situations. We would caution about that. There is this core response to domestic abuse, but it cannot work on its own—in isolation—to keep women safe.
Regarding the protection orders, if they are giving victims a potentially false sense of security that criminal breaches of the orders will be acted on, we know that the reality is that they often get a poor response from the police and courts. The orders are only really meaningful if they are adequately monitored and if breaches actually result in action. We also anticipate that there might be some issues with different courts—family courts and criminal courts—applying the orders in different ways, and we would not like to see different levels of protection offered to women in different jurisdictions.
I also raise another criminal justice issue—it is not really what you were asking about—that is quite important to our member organisations, which is changes to the bail regime. It has been reported that police have drastically reduced the use of bail conditions for men accused of rape and domestic violence, and that suspects are regularly being interviewed under voluntary attendance, rather than arrest. That seems to be having an impact that is potentially putting women at risk. I know the idea is that it should actually speed up investigations, but it seems to be having the opposite effect. That is something I just flag. If you are interested in that, we could follow this up with some written evidence on that point.
Lord Blair of Boughton: That would be very useful, whether for this legislation or some other legislation.
Lucy Hadley: On the family courts, when we ask survivors their No. 1 priority for transforming the response to domestic abuse, the answer we routinely get is on the safety of the family court system and the experiences that they have there, which are often really traumatising and re-victimising. It is really welcome that the Government are prohibiting direct cross-examination in the family courts. We have called for that for quite a long time. We have a few suggested changes for how that might work more effectively, which I think you might hear further on from the next panel.
We also do not think that that goes far enough in terms of improving the family court response to domestic abuse. The Bill is introducing an automatic assumption that a victim will get special protection measures in the criminal courts but not the family courts, and we see the family courts as where the key problems are. We did some research with Queen Mary University of London last year, and 61% of survivors that we spoke to had no access to special protection measures at all in the family courts, and just 7% had different entrance and exit times from the perpetrator, which is a low-cost and easy measure to help keep victims safe. We really want to see the automatic assumption that special measures are available for victims of domestic abuse parallel in both court systems. Women and children have very different experiences of the response to domestic abuse in the criminal justice system, where a lot of priority has been put on this issue in the past decade, and then in the family courts, where they often receive a very different response, and we see that they fall down the gaps as a result.
In terms of Clare’s law—the disclosure scheme—we welcome that it is being put on a statutory footing. We really hope that that will improve consistency and use within police forces. However, it is important to note that most survivors will not bring criminal convictions or criminal proceedings, therefore their perpetrator will not be known to the police, so that perpetrator will never show up on the disclosure scheme. It is not a silver bullet solution; it will help some women, but not everyone.
Similarly to Andrea’s point, we need to get right some of the basic issues with the police use of powers to protect victims, and the changes to pre-charge bail have been a real problem there. There is great variation, in terms of forces’ arrest rates, use of bail conditions and use of current existing orders, such as domestic violence protection orders. The variation between how well forces use those powers and tools at the moment is really great.
Any new order, such as the domestic abuse protection order that the Bill proposes to deliver, is really welcome. There are some comprehensive and quite wide-ranging proposals from the Government on how that order can protect victims, including things like barring perpetrators from making online contact with victims of domestic abuse, which is a welcome step forward.
However, enforcement and implementation has to be the main concern. We see very patchy use of current domestic violence protection orders, and it is concerning that the Government’s impact assessment has not estimated any costs to the police of the new protection order regime, only to the courts and probation services. If we really think that these protection orders are going to deliver a step change in our response to domestic abuse, we need to know that the police will be properly trained and that there will be a proper implementation plan for how they will be used.
In terms of the criminalisation of breaches, that has been a major failing we have seen with the current domestic violence protection orders. Unfortunately, there has not been the power of arrest or criminal offence tied to breaches of those orders. Victims have not been convinced that the orders are going to protect them, because there is no sanction or police response if the orders are breached, so we welcome the criminalisation. As Andrea said, we need to know that the orders are going to be enforced robustly and consistently across different court systems.
Ellie Butt: On the issue of family courts, I am in complete agreement with my colleagues. We are pleased to see the prohibition of direct cross-examination, but we are concerned that the way the Bill is drafted is too narrow and will not protect all the women who need protection in the family courts. I echo what has been said about reforms of the family courts needing to go further around special measures.
We welcome the proposal on the domestic violence disclosure scheme; we think that it is a positive step forward. Its use is very patchy at the moment. We know that between police force areas, particularly around the right to know applications, there is a huge difference in the extent to which they are used. Putting them on a statutory footing could help with that, but it is important to highlight that such a scheme can help only a very small number of women because so few report to the police. Indeed, it is interesting that even in the Government impact assessment they are only expecting a 5% to 10% increase in the use of the DVDS as a result of placing that on a statutory footing. It is not a comprehensive response to managing perpetrators, but it is useful where it works.
Echoing a lot of the comments that have already been made, the criticisms and concerns that we often hear from survivors about the domestic abuse protection order is that they go to great lengths to secure one of these protective orders, it is breached—perhaps lots of times—and very little happens. In that respect, we welcome the fact that a breach of the domestic abuse protection order would be a criminal offence, but what is important is the training and implementation. Is a breach going to be met with a robust measure? Can survivors have confidence that the breach, however it is committed, will be met with a serious response, and quickly?
That is the case particularly in online and tech abuse. We run a tech abuse project that is developing specialisms in gathering information about how domestic abuse is perpetrated online and via technology. A breach of online contact, logging into accounts or posting pictures is extremely serious and has an impact, much like any other breach. We really want to see the DAPO being able to both put in place requirements that stop perpetrators abusing online, and then respond seriously when breaches are made in that way.
Again, we are concerned about the lack of expectation that this will have cost impacts on the police. We think that it needs to if it is to be successful. There really needs to be a focus there. We welcome the idea that positive as well as negative requirements could be attached to these orders. There is still a gap relating to the quality of these requirements and who monitors and supervises compliance, and whether those requirements are effective. That is unclear at the moment.
The link between the criminal and family courts is a problem that is raised all the time by the women we support. We need to see some really concrete plans and investment to make that link work, so that whichever jurisdiction that the order is applied for and imposed in, there is consistent and robust protection that comes alongside it.
Q14 Alex Norris: Turning to migrant women, your organisation, Andrea, has helpfully briefed about your views of the challenges and vulnerabilities facing women with insecure immigration status. Could you talk us through that and say how you think the Bill is in terms of trying to address some of the shortcomings?
Andrea Simon: Women with insecure immigration status are some of the most vulnerable and least able to access support as it currently stands. We feel very strongly that the Bill should offer equal protection for all victims, including migrant women, enabling them to access shelters, accommodation and refuge. Those types of things are essential if they are to be able to have safe pathways to leave an abusive situation, and they are a prerequisite even to being able to regularise their immigration status. Currently for a lot of women there is this horrible choice between being homeless and destitute, and staying with a perpetrator. We think the Bill has to do something about that.
There is this wider acknowledgment that immigration policies can in themselves enhance an abusive partner’s ability to control women and their children. We do not feel that in the Government’s response in the Bill they have really grasped the nature of that and the impact that multiple perpetrators can have on these particular women. We often see an intersection of a lot of different forms of abuse. The Government’s response to the consultation that the best solution may be for women to return home, for instance, really does not understand that dynamic at all. These women can be at further risk when they return to extended networks.
We feel that the Bill is an opportunity to enhance access to justice as well as protection and support. Currently, as it is drafted, it is just not there, and that is despite a lot of lobbying from the VAWG sector and the human rights sector. Research suggests lack of routes to justice and that there are poor justice outcomes if you are a migrant woman. We think there is not much of a response to that. There is talk of police policies around data sharing, but again that does not really address barriers to women coming forward, because they have already been told, and threatened by perpetrators, that they would be supported if they tell anyone.
We are deeply concerned that the no recourse to public funds rule is preventing migrant women from accessing refuge space, and the answer in the domestic violence concession is far too narrow. It applies only to women on spouse visas, and it really does need to be widened so that other women, on other types of visas, can apply for it. It also does not apply for long enough: it is only valid for three months and we would like to see at least six months’ extension on that. In order to be compliant with article 4 of the Istanbul convention, which the Bill seeks to ratify, it really needs to extend the domestic violence concession in the ways that I have said.
There is not a lot of consistency in response from police and other public authorities. The Bill needs to put some sort of non-discriminatory and inclusive approach on a statutory footing so that there is a more consistent approach and response to making arrangements for victim protection when there is insecure immigration status. The Committee should take the opportunity to have organisations that work and support migrant victims of domestic abuse and other forms of VAWG here to talk about their own case studies, because it is only once you actually hear these women’s experiences and how they fall between the gaps in protection from every angle that you can appreciate what the Bill needs to do and where that is missing. We would strongly advocate having representations from migrant groups and migrant victims speaking of their own experience, if that is something you can do.
Q15 Chair: Ellie and Lucy, is there anything you want to add to that? That was quite a comprehensive answer and I am thinking of the timing.
Ellie Butt: Just to echo that really and to say that we really support those calls to broaden the domestic violence concession and the length of time. It is also a really pressing issue for us, and it is crucial that the Bill offers protection on an equal basis.
Q16 Alex Norris: Can I seek clarity on that? When we press Ministers, they say, “Don’t worry, the destitution domestic violence concession is there.” We are hearing that the Bill is too narrow in terms of length of time and who is able to use it. Are there any other shortfalls?
Lucy Hadley: Eligibility is definitely the massive issue. It is only available for women on spousal visas. There are many other types of women who have insecure immigration status and cannot access it. Our “No Woman Turned Away” project provides additional casework support for women who experience barriers in getting to Refuge. We supported over 100 women with no recourse to public funds in one year of the project and 67% of them were not eligible for the concession. That is a really big issue.
Chair: That is really helpful. Lord Farmer will go into our final set of questions around things that are not actually in the Bill.
Q17 Lord Farmer: There is currently little in the Bill to support the Government’s strategy of prevention of domestic abuse. Earlier you talked about intimate partner violence, but there is also situational violence, where early intervention can be quite productive and preventative. What measures should be included in the Bill for the Government’s strategy of prevention, and what non-statutory measures are necessary?
Ellie Butt: We think that, in order to prevent domestic abuse and intervene early, this needs to be broader than a criminal justice Bill. The criminal justice system is never going to be well equipped to achieve prevention and early intervention objectives. We think that reform of the welfare system and housing law has a really important role to play in prevention and early intervention, by creating the environment and options for survivors to seek support and escape domestic abuse at the earliest possible time.
The role of specialist services is key in prevention and early intervention. As well as providing direct accommodation, support services—such as services that Refuge and colleagues at Women’s Aid run—have a really important role in prevention, by working with schools, working with and facilitating multi-agency work at a local level, which has a really important role to play in prevention and early intervention, offering training and building capacity in other areas of the sector.
For us, it is important that we create this environment through broader reform to give survivors options, and to ensure that services are there for them as soon as they need them and that those services are resourced in a way that allows them to have a really important role in prevention and early intervention at a local level. That is what we want to see.
Lucy Hadley: I share Ellie’s points. We need to focus particularly on shifting the national response from managing victims at the highest risk—the dominant multi-agency response for domestic abuse focuses on quite a small category of high-risk victims—and work towards a system that focuses much more specifically on prevention and early intervention, and meeting the needs of women and children who might not necessarily fall into that high risk category. If we can intervene early and help them seek safety and support at an earlier stage, we will save money in the long run.
We are pleased to have Government support for “Our approach: Change That Lasts”. We have programmes such as the “Ask Me” scheme, which equips people in communities to understand domestic abuse, to be able to start safe conversations about domestic abuse, to signpost survivors to support and to offer a community response. Survivors often tell us that the community is really missing in the approach to domestic abuse—the community is absent and does not talk about it. But as Ellie said, prevention work at a local level is often sidelined when public agencies are really stretched and under pressure. Responding to our annual survey last year, over half of our services said that they were running an area of work without funding, which is typically prevention and community-based work.
Andrea Simon: I would echo the same points. I would just add that in terms of early intervention there are still a lot of key public services—including teachers, GPs, et cetera—that are not being trained on domestic violence and other forms of VAWG as part of their initial vocational training. We think that a statutory definition could be a new way of reaching and changing training requirements, not only for the initial training, but for career development in key professions.
In terms of prevention, it is great that the forthcoming relationship and sex education in schools will be mandatory. We think that is best delivered as part of a whole-school approach, so that it is embedding the rejection of abuse and harassment in a school ethos. We think that works best when there are connections with the community and local specialist women’s sector organisations that can advise on long-term prevention work.
Very briefly, beyond education, we also think that some of the public awareness raising the Home Office has done has been very good. The “This is abuse” campaign has been excellent, and we would encourage further investment in those.
Q18 Lord Farmer: Do you think we should hear from charities that are getting involved with the couple at the early-stage couple counselling? There is For Baby’s Sake or Atal y Fro in Wales that work in the house and stop the violence at that stage.
Andrea Simon: There are a number of perpetrator programmes that are community-based programmes. We need to be careful of our delivering safe programmes for perpetrators that are victim-centred and focused on the victim at their heart. I emphasise meeting Respect and learning more about the Respect accreditation for perpetrator programmes to ensure they are safe and work effectively.
Q19 Lord Farmer: To follow on, you mentioned accommodation in the last two questions. Should the Bill include a statutory requirement to provide accommodation and support for survivors of domestic abuse? What future model for funding provision for domestic abuse services do you wish to see? How should this be reflected in the Bill? The final question: do the Government’s policies support a more effective multi-agency—cross-departmental—response to domestic abuse? If not, what else is needed to support a more co-ordinated approach?
Andrea Simon: In terms of the statutory requirement, the sector is under-resourced to meet current demand, and the Bill seeks to drive demand, and therefore sympathetic to the idea that you would want to ensure that there are those services there. However, there are concerns around that because it is not a one-size-fits-all version of support for all victims, and specialisms are important around LGBT needs, BME women’s needs, disabled women’s needs and men’s needs. Services delivered in that way have the highest levels of self-referral and are really valued. So we would worry about, potentially, the impact of having a statutory requirement.
Ellie Butt: We certainly need to see change to create a sustainable, sufficiently resourced funding system for accommodation and non-accommodation-based specialist services. We know that demand far exceeds supply and that the sector is in a position of acute financial strain. For example, our funding for the refuges we provide at Refuge has been cut by 50% since 2011—so, significant cuts and more to come. We are quite worried that we are going to have to close some of our services when further cuts are imposed next year if we cannot find an alternative funding structure. It is a really difficult time for specialist provision. We need to do something different.
We have some concerns around a statutory duty, mainly around how you would manage demand if you created a statutory duty. We are worried that if we had a statutory duty, access might be rationed by a “high risk” assessment, as it is with multi-agency support at the moment. That is really dangerous and needs to be avoided, first, because from our role in domestic homicide reviews, we know that a lot of women who are killed by their partners and ex-partners were not classified as high risk—they were classified as low or medium risk—so we don’t want to move to a system where you shut out a proportion of women from support. Also, in the current system, where this is not adequately resourced to meet current demand, you could have a race to the bottom in terms of services and service quality. We strongly believe that holistic, gender-specific services that are also independent from the state is often really important to the women we support. There could therefore be an unintended consequence of a statutory duty, encouraging local authorities to bring services in house, deliver them cheaply and require survivors to disclose to local authorities in order to access support. So we think there are risks, but we also want to work with Government to create a sustainable solution. We know that the Ministry of Housing, Communities and Local Government is due to publish some proposals on how specialist services might be funded in the future, and we would really like to see those alongside the domestic abuse Bill so that we can look at them and see whether some statutory underpinning, some statutory measures—whether that be in the form of guidance or whatever—might be necessary.
Q20 Lord Farmer: Lucy, we are short of time, so could you say something briefly?
Lucy Hadley: I agree with the points my colleagues have made. We have seen very clearly that the fully devolved model of funding for domestic abuse services and refuges just isn’t working; 21,000 referrals to refuges were declined in 2017-18, so we urgently need a different solution for sustainable funding of the sector. As Ellie said, there has been no assessment of the impact of this Bill on demand for specialist services when we know that if the Bill is successful and improves women’s ability to come forward and seek help, demand will rise. So we absolutely do need to see the Ministry of Housing, Communities and Local Government’s proposals alongside this legislation if we are to be convinced that it is going to be underpinned by the service provision and support that women and children need, and that they can trust that this legislation and the package of measures around it are going to protect and support them.
Q21 Chair: Ellie, could I ask for clarification? You talked about a 50% cut in refuge services. Is that in the services that you provide or in the services that are being provided?
Ellie Butt: The services we provide. We currently provide 43 refuges across England, and the funding we receive for those particular services has been reduced by 50% over the last eight years.
Q22 Chair: But might some people other than refuges be providing the services?
Ellie Butt: They are services that we are still running; it is just that the money we receive to run them has been reduced. We have responded to that largely by increasing our fundraising, through trusts, voluntary donations and—
Q23 Chair: Sorry, my question was this: are there other providers not called refuges that are providing as well and providing more now than they have in the past?
Ellie Butt: There are certainly other providers of refuges. We are the single largest provider: we provide 43 of the 200 or so across the country. It is not the case that our funding has been cut and so we have stopped providing those services and someone else does. I was just giving you a flavour of the financial pressure we are under, in that we are having to look for other sources, but there is a limit to how much we can do that.
Q24 Lord Ponsonby of Shulbrede: Ellie, I want to pick up on a comment you made. You said it was important that the services provided were independent of the state. Why is that?
Ellie Butt: It can be. In the situation we are talking about, lots of survivors do not want to report to the police or disclose to public sector bodies. They have increased trust, sometimes, in voluntary sector organisations. They know that they can come to us confidentially and we will not share any information unless it’s with their permission. It is not a one-size-fits-all model; that is not important to everybody, but it is certainly very important to have that independent, voluntary sector support for women. They can confidently confide the full extent of their abuse to us, knowing that we will not pass that information on unless someone is at immediate risk of harm or they have given permission for us to do that.
Chair: I fear we have to end the session with our first panel there; we could have gone on an awful lot longer. Thank you so much for your time and for coming along and sharing your thoughts. I notice that there are a couple of follow-up points, and the Clerks will be in contact to get that information. Thank you very much.
Witnesses: Olive Craig, Rights of Women, Rachel Robinson, Principal, Justice Domain, Equality and Human Rights Commission, and Karla McLaren, Government and Political Relations Manager, Amnesty International UK, gave evidence.
Chair: I welcome the second panel of witnesses giving evidence this morning to the Joint Committee on the Draft Domestic Abuse Bill. We are immensely grateful for the time that you have taken not just to be here but to prepare for the session. Thank you very much for that. It is incredibly important that we have thorough scrutiny of this important piece of legislation, so thank you for taking the time to be here. We are going to follow the usual pattern. Colleagues have got questions to ask. I ask you to find your best projecting voices: the microphones do not actually amplify, they just record, so you really have to throw your voices in the direction of colleagues. Helen is going to start the questions.
Q25 Helen Whately: I am going to start off with a question about the definition of domestic abuse. We heard from our previous panel quite strong arguments for having a gendered definition, so I would like to ask whether you agree or disagree with that. If you agree, to what extent do you think that would help women and girls who are victims of, or are at risk of, domestic abuse, and do you believe it would comply with the Equalities Act? All witnesses have to answer. If you do not have a strong view on it, it would be very good to hear the views that you do have.
Chair: Sorry, I forgot to ask you to say which organisations you come from. Perhaps when you speak you could just say your organisation as well.
Rachel Robinson: I am Rachel Robinson from the Equality and Human Rights Commission. I am sure I do not need to rehearse for the Committee the very strong evidence base that exists to demonstrate the disproportionate impact of domestic abuse on women. The previous witnesses did that very well. We welcome the Government’s commitment to highlight that disproportionality in guidance. However, we would like them to go further. We would like that disproportionality to be highlighted on the face of the Bill.
Just to be very clear about this point, we are not suggesting in any way that the definition should be exclusive to women. We certainly think it should cover everybody, but we feel that highlighting the reality of the disproportionality is critical in ensuring that the services that women need are received and resourced appropriately, acknowledging the position taken in, for example, the Istanbul convention.
I think that we are probably best placed to speak to the requirements of the Equality Act in this respect. Certainly in having a provision that includes both sexes, we don’t feel that that will lead to a situation where public authorities are discriminating. We actually think that referencing and highlighting of the disproportionate impact on women will help public authorities to comply with the requirements of the public sector equality duty. It is very clear and very well established that the public sector equality duty is not about treating all groups in exactly the same way. Actually, public authorities need to pay particular attention to the needs of groups sharing a particular protected characteristic, and to ensure that services are commissioned in a way that reflects those needs. We are very much of the view that far from undermining the ability of public authorities to comply with the requirements of the Equality Act, highlighting disproportionality would actually assist them in doing so.
Q26 Chair: May I ask why? Surely if there is evidence of a disproportional impact, having a gender neutral Bill will not be opaque. Organisations responding to the legislation will know, either through guidance or through other factors, that this is affecting women disproportionately. Why is it so important that it is on the face of the Bill? I don’t really understand the case that you are making for that.
Rachel Robinson: We feel that it will send a really strong signal to those public bodies who are involved in commissioning services. As I say, we do support the Government’s intention to include it in guidance, but we feel that this is a real opportunity to set down a marker. We feel that that will be influential for organisations, public bodies, who have these responsibilities. It is really about sending a very clear message. It is also about ensuring, as much as it is possible to do so, that the requirements of the Istanbul convention are reflected in the Bill, as well as across broader public policy.
Q27 Lord Farmer: Three studies in the last couple of years have shown that between 30% and 33% of victims are men, and they are less likely to come forward. There is also quite a lot of domestic violence in the LGBT community. Do you think that genderising the title will have the effect of making men say, “This Bill isn’t for us”?
Rachel Robinson: As the last witnesses made clear, it is not our intention in any way to diminish or undermine support services that are provided to men. This is about recognising an important reality on the ground, which should be in the minds of those who provide services to people who have been victimised in that way. This is not about preventing provision being offered to a certain group; it is about highlighting a reality that is tied up with the nature of the abuse as part of a broader pattern of gender inequality and discrimination.
Q28 Baroness Burt of Solihull: Won’t it put men off though? As Lord Farmer says, men are very hesitant to come forward, as are women—perhaps even more so. We want to encourage all the groups you have mentioned to come forward. If we highlight the effect on women so strongly, will that put men off? It would certainly put me off, and they feel that it is an uncomfortable thing to do in the first place.
Rachel Robinson: The witnesses in the previous panel referred to other measures and programmes that are being put in place by the Government to increase secure protection for male victims of abuse. We support such initiatives, but given that the evidence is so stark, and the disproportionality so clear—women are much more likely to be seriously affected by domestic abuse, including repeated abuse—it is important for that reality to be reflected in the legislation. We absolutely support an inclusive approach and the other measures the Government have put in place to provide provision for men.
Q29 Liz Saville Roberts: Rachel, you raised the issue of commissioning, as did the previous panel. Could you say why it is so significant for commissioning to appreciate proportionality in this respect?
Rachel Robinson: The previous witnesses referred to clear instances in the past of services being commissioned on a basis of the equal provision of services that span women and men, but that fails to pay attention to the important equality principle that we must focus on the specific needs of individual groups. That is a central plank of our approach to equality law in this country. We know that commissioning bodies have run into problems before with that, and there have been instances of failure to understand the need for specific services for victims who share certain protected characteristics. We feel that this is a really important moment to clarify that.
Q30 Lord Blair of Boughton: Would a better proposal be to reverse this slightly and ban gender-neutral commissioning?
Rachel Robinson: I do not think we would go that far. The important point for us is to put the mechanisms and structure in place to ensure that commissioning is sensitive to the needs of individual victims, especially those who share particular protected characteristics.
Q31 Diana Johnson: Scotland and Wales have legislated in this area. What approach have they taken?
Karla McLaren: The Bill in Scotland does include a gendered definition. I am not familiar with the situation in Wales, but I can find that out and get back to you if that would be useful.
Q32 Helen Whately: Karla or Olive, do you have anything to add on that point?
Karla McLaren: Briefly—I know we have spent some time on this, and we are echoing things that have already been said—it is important to recognise that domestic abuse is internationally recognised under the Istanbul convention and the convention on the elimination of all forms of discrimination against women as a form of violence against women and girls that is rooted in inequality between men and women. That is important to remember because, as colleagues have said, the importance of a gendered definition is that the statutory guidance, training for professionals, and commissioning funding will flow from that.
Women need services that reflect the nature of the abuse they face. They are more likely to face repeat offences, coercive control and so on. They also need services that get to the heart of the structural discrimination and the barriers they face. A gendered understanding of domestic abuse is best led by women’s specialist services, which tend to put women’s empowerment and self-determination at their core, so they do not just provide the basics of refuge, but try to get to the core of the power imbalances faced by the majority of domestic abuse victims.
As a colleague on the first panel mentioned, the Istanbul convention has a straightforward model, in our opinion, of how a definition could work. It specifically recommends to state parties that they apply the convention’s provisions to everyone, including men and boys. It does say that special attention should be paid to women because they are disproportionately affected, and that when working with women victims, a gendered lens must be used because of the inequality at the heart of it. There is a clear model at the heart of the convention that the Government want to ratify.
Q33 Helen Whately: Would you say that a gendered lens needs to be applied to women but also to men, recognising the differences?
Karla McLaren: Yes.
Q34 Helen Whately: Thank you. Secondly on the definition, should it distinguish more between different types of domestic abuse?
Karla McLaren: Amnesty welcomes the mention in the Bill of relatives as well as intimate partners. There have been comments about intimate partner abuse, but it is important that relatives are mentioned for black and minority ethnic women, because evidence shows that roughly half of BAME women who experience domestic abuse experience it at the hands of multiple perpetrators. However, we are concerned that some of the types of abuse disproportionately faced by migrant and BAME women are completely absent from the Bill. That includes FGM, forced marriage and so-called honour-based crimes. Those types of abuse are not there at all, and that reflects a complete absence from the Bill of any recognition of the needs of migrant women and of the importance of remedying the discrimination they face.
Q35 Chair: There are already laws. This is about passing a law, and there are already laws covering those issues. It would cause confusion if we passed more laws.
Karla McLaren: I think it is important to acknowledge the different types of abuse in the definition. Some of the types of abuse are already listed: coercive control, economic control and so on. If we do not also acknowledge that there are specific types of abuse that certain groups face, then those types of abuse will not filter down in terms of the policy and programme-making. To echo many of the previous comments, in terms of commissioning services and policies, it is important that women and men and others are able to access services that reflect the nature of the type of abuse they face. BAME and migrant women-led organisations are best placed to support those women, so there does need to be recognition of that on the face of the Bill. That is our position.
Rachel Robinson: Could I briefly echo that point, particularly around the situation of vulnerable groups, such as women who have insecure immigration status? This Bill is an opportunity to highlight the particular concerns faced by these women. This is potentially not just about provision, which can be included on the face of the Bill, but about thinking more broadly about the policy landscape, and how provisions outside this context might affect migrant women and inhibit their ability to seek the help and assistance they need. An example might be concerns about information-sharing in relation to those who report violence or abuse. Recognising the particular implications of coercive control related to immigration status is another example.
We are currently considering in a little more detail how this might work through amendments to the Bill. Could the definition be extended to highlight more specific forms of abuse, where we feel that is needed, and increase the understanding and consciousness of these sorts of abuse? We are considering potential examples such as coercive control related to immigration status, FGM, modern slavery and exploitation. We hope that this will help to remove barriers to accessing services.
Q36 Chair: Do you think there is a reason why they are not in the definition at the moment?
Rachel Robinson: We can speculate. Obviously provision is made in other areas of legislation and other parts of the legal and policy framework. This is really about helping to articulate neglected aspects of this sort of harm, and identifying those who are in need of support and might face barriers to accessing services. That would be the purpose of highlighting these forms of abuse in this piece of legislation, although they are tackled elsewhere.
Q37 Gillian Keegan: We are going to move on to domestic abuse protection notices and orders. First, do you think the proposed scheme for domestic violence notices is fair to victims and perpetrators, and will it give victims more protection? We will start with Olive.
Olive Craig: We have some real concerns about the proposals for protection orders. It is slightly difficult to answer the question in relation to notices by itself.
Gillian Keegan: Okay, just explain that to me.
Olive Craig: The overall concerns that we have?
Gillian Keegan: Yes.
Olive Craig: In the consultation, the Government talked a lot about reforming the protective injunction picture, but they did not speak at all or explain properly what the legal landscape looks like in terms of where the current proposals would sit. They proposed leaving the many, many different protective orders that are currently available across the criminal and family court jurisdiction. There are many different orders that have different aims and legal tests in order to protect victims from various different types of abuse.
The Government will replace one specific type of order—the domestic violence protection notices and domestic violence protection orders. Those notices are issued by the police, and the police go on to apply for the order in the magistrates court. The Government propose to replace them with something much broader and larger that arguably may remove the possible protection available under domestic violence protection orders at the moment.
Our consultation response raised a lot of concerns about the way in which domestic violence protection notices and orders are currently being used. One of our main concerns is that these proposals do not address any of those concerns; they simply put something different in place that we think is going to add a whole lot of other problems. The starting point is to understand what we think domestic violence protection orders do not do properly.
Q38 Gillian Keegan: Can you give some examples?
Olive Craig: HMICFRS did some research for a report into the use of domestic violence protection orders shortly after they came out and discovered they were used in a very small number of cases. It updated its report very recently—this year—and discovered over the two-year period it looked at in relation to the figures up to 2017, there had been an overall increase in the number of domestic violence protection orders the police were applying for, but the picture across different police forces looked very different. There were 13 police forces where the number of applications for domestic violence protection orders had decreased, so some police forces were actually using them less.
We also know that the number of these orders being applied for across the number of reported crimes is tiny; although there may have been a slight increase in applications overall, the number of domestic abuse crimes where the police apply for these orders is about 1%. We are talking about a tiny number. As far as we are aware, there are a number of different reasons why the police are not using domestic violence protection orders.
First, there is a general lack of training and understanding of what the orders do and how they are available. The system also puts on the police the administrative burden of applying to the magistrates courts to obtain the orders in the first place, which they do not do because it is quite a lot of work and they think they should be investigating other offences. Another reason is that the police are expected to pay court fees to apply for the orders. They pay an initial court fee, and if the order is contested there are additional fees they have to pay for the order to be finally granted.
One of our biggest concerns, which is why I think it is important to see where these fit within the larger legal framework, is that we are told by women that when they report an offence to the police and the police are not arresting or pursuing an allegation, they go off to the family court and apply for a non-molestation order. That is the most common response in relation to protective orders. The introduction of these orders will not solve any of those problems at all.
The additional problems that we think they will create is that some of the provisions of the orders are more draconian in nature, so courts may be less likely to grant them in the first place. We think that they are certainly more likely to be defended, which will then increase those cost concerns in the police’s mind, because they will become more expensive to apply for.
The proposal is that these orders can be applied for in both the magistrates court, by the police, and also in the family courts, by the victims or by third parties We have some concerns about possible abuse, in terms of family members being able to apply for them, and about there being unknown third parties; the suggestion is that it will be probation or the local authority, although that is not in the actual Bill.
In the family courts, we are worried about victims who are considering applying for protection from their abuser. Most victims, because of cuts to legal aid, now approach family courts and make applications unrepresented. At the moment, if they want some form of domestic violence injunction from the family courts, they apply for a non-molestation order; they at least know that they need to ask for a non-molestation order from the family courts. If you introduce two different orders that the family courts can make, and you have victims who are unrepresented and do not know the difference between them or between the different legal tests, or the potential benefits of applying for one over the another in their particular circumstances, they may end up applying for the wrong type of order in terms of the protection that they are able to access.
We then have the additional protection that these orders actually provide, over and above the restrictive conditions that are already available in different orders. They introduce the possibility of the court putting positive requirements on the perpetrator, which are broken down largely into rehabilitative requirements, such as attendance at domestic violence perpetrator programmes or drug treatment programmes, and more punitive positive requirements that can be put in place through electronic monitoring. In every order there is a notification requirement, which is why these orders are more draconian in the first place.
With the drug treatment and domestic violence treatment programmes, we are very worried about victims applying for an order in the civil courts and the possibility—we are not sure if this is what is envisaged—of the family courts making orders for perpetrators to take part in positive requirements. What message does that send to victims about their responsibility in monitoring a perpetrator’s behaviour and changing that behaviour when it is the victim applying for these orders? We are worried about the message that that is sending, especially in the civil courts. We think the police are much more likely, because they can, to direct women to the civil courts or the family courts to apply for these orders.
Q39 Gillian Keegan: That was very comprehensive. Does anybody have anything to add to that? Clearly, there is a lot you are concerned about. How could the process be amended to ensure that the rights of all parties—both victims and perpetrators—are protected?
Olive Craig: We are so concerned about what is proposed that we think it is quite dangerous to go ahead with it in its current form. We have no problem with the Government doing two slightly different things. You have the potential to properly review the way protective orders work. That should take into account a review of all the different protective orders that are available. It may be that it would be very sensible to have an overarching order, but we do not think it is sensible to put one in place without properly looking at what is available at the moment anyway. The conclusion of that review might be that it is sensible to have different orders with different aims and different tests.
The other side of what we think they are trying to achieve with these orders is prevention—that is why they have included these positive requirements—but, as we have already said, we have concerns about the mechanism through which they have chosen to do this. It is probably worth you speaking to Respect, who had a very sensible proposal in their consultation about prevention orders—trying to move prevention to a much more multi-agency approach and removing the responsibility for prevention and rehabilitation from the victim. Obviously, her views, wishes and experiences have to be central to that process, but it is the state’s responsibility to prevent domestic abuse. We are not really confident that the process could be—
Q40 Gillian Keegan: So you are recommending a thorough review of everything?
Olive Craig: Yes, it is not really about tweaking these proposals.
Q41 Gillian Keegan: So I guess you do not think they are going to add any further protection.
Olive Craig: If you want positives, there are a couple of positive things. If they go ahead with these proposals, one of the positives is that the test for domestic violence protection notices and orders is very much about physical violence. If they are going to go ahead with these orders, it is a good thing that they would cover domestic abuse generally. But that is about it.
Q42 Gillian Keegan: Does anybody else have anything to add?
Rachel Robinson: Very briefly, we hear loud and clear the concerns raised by expert groups about the effectiveness of comparable orders on the ground. The only additional thing to raise is that there are some concerns about the use of electronic monitoring in this context. Many concerns have been raised about current programmes involving electronic monitoring. We are concerned—
Chair: We are just going to come on to that. You are reading our minds.
Q43 Lord Ponsonby of Shulbrede: May I just make a comment? I sit as a magistrate in adult DA courts, and I also sit in family court. I have done restraining orders and non-molestation orders many times. I have never done one of these orders, and most of my colleagues have not done them either, so they are a bit unknown to us, to be honest.
Olive Craig: I assume you sit in London.
Lord Ponsonby of Shulbrede: Yes.
Olive Craig: The Metropolitan police have a very bad record for applying for these orders.
Q44 Lord Ponsonby of Shulbrede: So it is largely uncharted territory for the magistracy and the court system, even though they are in place. I suppose the issue we come across most practically in dealing with restraining orders and non-molestation orders is breach, which is a criminal offence that carries a maximum of five years’ custody. The other issue, which is very live, is taking off restraining orders—when we get women coming to court to ask for the restraining order to be taken off. There we have an issue of special measures, because theoretically they cannot have special measures, and they may also be under undue influence to get the restraining order taken off. We have very practical issues with implementing the old system—the current system, I should say—whereas we do not yet have experience of the new orders.
Olive Craig: Neither of those problems that you have identified would be rectified by this.
Lord Ponsonby of Shulbrede: Right.
Q45 Gillian Keegan: Your basic issue is that they are not going to be used to very much—you said for less than, or about, 1% of cases.
Olive Craig: Less than 1% of domestic abuse crimes, yes.
Q46 Baroness Burt of Solihull: Time is very short, I am sorry, with the thoroughness of and how interesting we have found your answers. I have three separate things to ask you about, so please be as succinct as possible and if someone else has said it, do not repeat it. If you have anything that you want to get across, we are really interested to hear it. The issues are cross-examination, special measures and polygraph tests. I will give all three questions, and you cherry-pick which you want to answer.
Do you think that cross examination in person in family proceedings will meet all the parties’ rights to a fair deal? Should the proceedings on special measures for complainants of domestic abuse in criminal proceedings be extended to the family courts? If so, what would be the legal implications of extending the presumption in that way? Finally, what do you think about polygraph tests and their effect on offenders’ rights?
Olive Craig: May I deal with the cross-examination point first? It is very positive that the Government are finally getting around to banning cross-examination in person in the family courts. It is long overdue—there has been legislation for the criminal courts since 1999—but the current proposals could do with an amendment that shifts the perspective.
At the moment, an automatic ban arises only where there has been a conviction, caution or charge, or an injunction is in force. We think that is the wrong approach. The approach should be that the automatic ban arises where there are allegations of domestic abuse, sexual abuse, stalking or harassment. It should be based on the fact that these are allegations of a particular type of behaviour, and we accept that as a result of that particular type of behaviour there should not be cross-examination in person.
With the discretionary test, we have no problem with it remaining in place to cover any other situations that we cannot quite envisage, but we think that it is much more sensible to have the automatic ban arise as a result—
Q47 Baroness Burt of Solihull: You do not think the proposed measures quite get there then.
Olive Craig: No. We think that the majority of women facing the family courts will fall under discretion rather than the automatic ban.
Q48 Chair: Because it is allegations, not—
Olive Craig: Because the automatic ban will only arise where there has been an actual conviction, caution, charge or in-force injunction, and you heard from the first panel about how a large proportion of victims do not even access the criminal justice system.
Q49 Liz Saville Roberts: Very specifically, if it is to be extended to family courts, should it be considered for extension to civil courts as well?
Olive Craig: Yes, absolutely.
Q50 Baroness Burt of Solihull: Anyone else on that one, or do you want to move on to the presumption of special measures?
Olive Craig: It does not really make any sense to us why the Government have proposed a presumption of special measures in the criminal courts where it is not particularly problematic. Our experience is that special measures are widely available and are used in the criminal courts where there is a case of domestic violence, but in the family courts, as you heard from the earlier panel, the majority of survivors do not have access to special measures, so absolutely the presumption should be in place in the family courts.
Q51 Baroness Burt of Solihull: Anyone disagree? I doubt that you do. Finally, do you think that polygraph testing has implications for offenders’ rights?
Olive Craig: Yes, of course it does. From our perspective, as a women’s rights organisation supporting largely victims of domestic violence, we would be very concerned about its leading to a false sense of security and being relied on too heavily by probation to do proper risk assessment and management.
There was a report last year about CRCs’ response to the management of domestic abuse cases. They deal with a lot of domestic abuse cases, because they deal with low and medium-risk offenders. The report was pretty damning of their ability to manage those cases, so we are very worried about putting in place what is essentially a machine, which we know is not particularly reliable, for them to rely on. There is a reason why they are not allowed in the courts.
Q52 Baroness Burt of Solihull: Okay. That was my thing; I read that they are not relied on in court. So what is the point? I am sorry to put it baldly.
Olive Craig: Not to argue the Government’s case, but the justification for them for the management of sexual offenders is that some research suggests that they increase disclosures of risky behaviour, but what I am certainly not aware of is how reliable those disclosures are or what happens to the people who do not disclose.
Q53 Baroness Burt of Solihull: I wonder whether anyone else has an opinion on that.
Karla McLaren: Amnesty does not have research or policy on these issues.
Baroness Burt of Solihull: Maybe I will ask that to another one then. Thank you.
Q54 Lord Blair of Boughton QPM: This is about the domestic violence disclosure scheme—Clare’s law. It is a question about whether you think there is an advantage in creating a statutory register of violent abusers.
Olive Craig: I think those are two slightly different questions.
Q55 Lord Blair of Boughton QPM: Yes they are: the statutory requirement and also the question of a statutory register.
Olive Craig: The domestic violence disclosure scheme is used in such a small number of cases. Our main concern about it is that women who access it understand that the information they receive—if they receive information from the police that their partner has no convictions and no involvement with them—does not necessarily mean there is no risk. We would have a similar response to the idea of having an offender register, although the joining together of them suggests an implication that the purpose of a register would be to provide information to victims to make informed decisions. The real questions about a register are: what is the purpose, how will it be used, how do you get on it, who is not going to be included on it—?
Lord Blair of Boughton QPM: How do you get off it?
Olive Craig: Those are all questions that would have to be answered before we could say.
Q56 Liz Saville Roberts: Why do you think there is such a small uptake of Clare’s law?
Olive Craig: I think it is because when you are at the start of a relationship it is not really in your mind to go and ask the police for disclosure accounts of your new partner’s criminal past.
Q57 Liz Saville Roberts: In which case, if they were to be a register, on whom would the onus be for the register to be effective to act?
Olive Craig: It would obviously have to be the state. If there were a register of the kind of questions about repeat domestic violence offenders—you are presumably hinting towards high-risk perpetrators—there should perhaps be a duty on the police or the state to inform people in those cases, but the mechanism through which that happens is quite important.
Q58 Diana Johnson: I would like to talk about the Istanbul convention, and I want to start with the Government’s intention in the Bill, which is to fulfil the extraterritoriality aspects of article 44 of the convention for England and Wales. Members of the panel, do you think that it meets that intention?
Karla McLaren: Yes. At Amnesty we accept the Government’s position, as outlined in the consultation response, that the Bill now fulfils article 44, but we reject the position that that is the only remaining gap in terms of compliance with the Istanbul convention. Amnesty, along with many other organisations, has been calling for the Government to ratify the Istanbul convention for many years. We continue to make that call, but at the same time we urge the Government to act to bridge other implementation gaps that we have identified, particularly around non-discrimination, extension of provision in Northern Ireland—I know we will come on to that—protection for migrant women, and provision of adequate funding.
Q59 Diana Johnson: Can you just say what the effect is for Northern Ireland of the way that the law is drafted in this Bill?
Karla McLaren: Amnesty’s position is that the Bill’s provisions in general should be extended to Northern Ireland. The Istanbul convention is very clear: under article 4.3, equal protection must be provided irrelevant of national or social origin. CEDAW has also very clearly stated, most recently in its concluding observations as part of the UK’s review, that the UK as a state party has a continued obligation to ensure equal protection for women in Northern Ireland, irrelevant of the fact that there is no functioning Government there.
The failure of the Government to take this opportunity to ensure equal protection for women experiencing domestic abuse in Northern Ireland is disappointing, and that is something that we would argue it should do. There are a number of obvious gaps.
Q60 Diana Johnson: Just so we are all clear, do you think that the UK Government will be able to ratify the convention on the basis of the legislation they have drafted?
Karla McLaren: We continue to call for the Government to ratify, but we do not think that the Bill as it stands would fully incorporate the provisions of the convention. That is not to say that they are legally unable to do so, but it is to say that as it stands, they will not be fully compliant. They will not be fully incorporating the provisions.
There is a number of articles that we can discuss—I know it is possibly going to come up in later questions—but it is predominantly around article 4.3 on non-discrimination. That article applies both in Northern Ireland under the national and social origin point and for migrant women, because article 4.3 specifies that equal protection must be provided, irrelevant of migrant or refugee status. Those would be the priority areas for us, along with funding provision, support for NGOs, and some of the specifics around the provisions that you need to provide for migrant women in terms of being able to access indefinite need to remain and not being deported.
Diana Johnson: That is very helpful. Thank you.
Q61 Chair: Brilliant, that’s lovely. Does anyone else have anything else they want to add?
Rachel Robinson: Can I come in briefly to say that we very much welcome the Government’s commitment to ratify the Istanbul convention? We share concerns that even with the provisions of this Bill in place, they still will not be fully compliant. Our concerns are similar to Amnesty’s focus on the treatment of migrant women, and also funding provision, whether in the provisions of this Bill or more broadly in policy.
Q62 Chair: Just as a very final question, the Government clearly think that by putting this in place, they will satisfy the requirements to ratify the Istanbul convention. Is it fair to say that the points you have put over are subject to debate, or are they things that have been set out as barriers to ratification?
Rachel Robinson: We would urge the Government to ratify. We have urged the Government to ratify as a matter of urgency.
Q63 Chair: Anyway?
Rachel Robinson: Anyway, and to keep working to improve provision, particularly against discrimination involving migrant women.
Q64 Chair: So they could ratify and keep on working on the other issues.
Rachel Robinson: That is our understanding, yes.
Chair: Okay, that is really helpful. Thank you so much for your time today, for your expertise, and for your forbearance with our questions. We are really grateful. Thank you very much.
Oral evidence: Draft Domestic Abuse Bill, HC 2075 1