Written evidence submitted by the Equality and Human Rights Commission on the draft Domestic Abuse Bill (DAB0477)

Background

1. The Equality and Human Rights Commission (the Commission) is a statutory body established under the Equality Act 2006. It operates independently to encourage equality and diversity, eliminate unlawful discrimination, and protect and promote human rights. 

Executive summary

2. To ensure better support and protection for survivors of abuse and to meet international human rights requirements, the draft Domestic Abuse Bill (‘the Bill’) should be amended to:

• Strengthen the Government’s response to domestic abuse by
• placing general duties on the Home Secretary to plan for and adequately fund services for all victims and to provide them appropriately, in line with the gendered nature of domestic abuse.
• requiring Ministers across Government to have due regard to the need to prevent domestic abuse and protect victims.
• Improve the response to all forms of domestic abuse by including reference to forced marriage, female genital mutilation, slavery and sexual exploitation, coercion or control based on immigration status and online abuse in the statutory definition.
• Strengthen the role of the Commissioner by requiring appropriate funding for the role; empowering the Commissioner to collect data; and requiring them to take account of the disproportionate impact of abuse on women.
• Remove barriers to justice for victims of abuse including by extending new provision for special measures to the family courts and strengthening the prohibition against cross-examination by an alleged abuser.
• Increase protections for victims with insecure immigration status by prohibiting some information sharing, ensuring they can access support services such as refuges, and extending the timeframe for the Destitute Domestic Violence Concession.

Our response

Scope of the Bill

3. Domestic abuse has a devastating impact on the lives of victims, family members and broader society.  We have a particular interest in this issue in light of the disproportionate impact on women, people with disabilities and black and minority ethnic people.  In order for the Government to be able to meet its obligations under the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), it is crucial that progress is made on this issue.

4. We welcome the publication of this draft Bill.  We are disappointed, however, that the Government has not taken the opportunity to publish a broader Bill which covers all forms of violence against women and girls, in line with the Istanbul Convention, the recommendations of the Home Affairs Committee[1] and the existing legal framework.  In our analysis, the Bill needs to be strengthened to better reflect the requirements of international human rights law, the Human Rights Act 1998 and the Equality Act 2010, including the requirements of the Public Sector Equality Duty.

Legal framework

5. The Commission considers that the Bill should go further to comply with the requirements of CEDAW, in particular general recommendation 35 (which provides guidance on eliminating gender-based violence against women), [2] and the Convention on Preventing and Combatting Violence against Women and Domestic Violence (the Istanbul Convention).

6. We welcome proposals to provide extra-territorial jurisdiction over certain sexual or violent offences, to support UK ratification of the Istanbul Convention. Devolved governments also need to take any relevant steps, to ensure their legal frameworks are in line with the Convention.  However, in addition to the extra-territorial extension of these offences, the Istanbul Convention requires changes to policy and practice that must be considered.  The Bill presents an important opportunity for the Government to comply with these requirements.

7. The Istanbul Convention sets out four core principles for action:

• Prevention: addressing the root causes of domestic abuse and VAWG.
• Protection: ensuring all survivors are provided with the services they need to stay safe.
• Prosecution: providing survivors with access to justice, effective investigations and criminal proceedings.
• Integrated policies: implementing state-wide policies that address all forms of domestic abuse and VAWG.

8. We urge the Government to amend the Bill to make the necessary policy and practice changes, and allocate sufficient and sustainable resources, to ensure UK compliance with the Istanbul Convention. This includes ensuring specialist support services are provided, and addressing the chronic shortage of refuge spaces. 

9. We also urge the UK Government to complete the process of ratification without delay, to provide greater clarity on and accountability for the standards the UK has committed to under international law. 

Strengthening the Government response[3]

10. The Bill does not currently place obligations on the Government to make progress in the planning and provision of services aimed at preventing domestic abuse and supporting survivors.

11. We recommend that the Bill is strengthened by placing a statutory duty on the Secretary of State requiring them to:

• adopt measures to prevent domestic abuse and protect/support victim-survivors;
• provide adequate resources to meet those aims;
• publish a strategy every three years and report on progress regularly;
• recognise, in the introduction of measures, the disproportionate impact of domestic abuse on women; and
• ensure services are provided free of charge to all survivors, regardless of immigration status.

12. We further recommend that a general duty is placed on all Ministers to require consideration of how government policy in other areas may increase vulnerability or create obstacles for those attempting to escape domestic abuse. See Annex A for suggested amendment text.

Adequate resources

13. The evidence suggests that currently too few support services are available, and that provision is inconsistent. Women’s Aid’s recent report The Domestic Abuse Report 2019: The Annual Audit,[4] highlighted the following issues raised by their membership:

• Just under a third (30.6%) of services report that since 2014 they have had to reduce the amount of support (in terms of staff time) they are able to give to each service user due to funding.
• 54.5% of respondents to the annual survey gave comments on funding and funding uncertainty as their biggest challenge in 2017–18.

14. A 2015 report by the All-Party Parliamentary Group on domestic and sexual violence concluded that ‘the current model for funding specialist domestic and sexual violence services is not fit for purpose.’[5] 

15. The proposed statutory duty would respond to concerns about poor and inconsistent funding of services and help the UK to meet the requirements of the Istanbul Convention. Article 20 requires States to ‘[t]ake the necessary legislative or other measures to ensure that victims have access to services facilitating their recovery from violence’.[6]  This should include advice, legal support, psychological counselling and financial assistance. It should also include support to navigate the criminal justice process, such as funding for independent domestic violence and sexual violence advisers.  Our non-legislative recommendations for improving funding and support are included at Annex B.

A statutory domestic abuse strategy

16. A proposed general duty (to publish and review a strategy on domestic abuse) would further the obligations in the Istanbul Convention to put in place policies encompassing all relevant measures to prevent and combat violence.[7] This duty would put the Government’s VAWG strategy, insofar as it applies to domestic abuse, on a statutory footing.  The strategy needs to take into account both national and regional strategies in relation to violence against women, domestic abuse and sexual violence in Wales. 

Recognition of the disproportionate impact on women

17. The disproportionate impact of domestic abuse on women is well documented and violence against women and girls is both a cause and a consequence of women's inequality. Women[8] are around twice as likely as men to experience domestic violence, and men are far more likely to be perpetrators.[9] Women are further much more likely to be seriously hurt or killed than male victims of domestic abuse.[10] The large majority of intimate partner domestic homicide victims are women, killed by men. On average, two women are killed each week by their ex/partner in England and Wales.[11] 

18. The Istanbul Convention[12] covers both sexes, but highlights that violence against women is a form of gender-based violence that is committed against women, because they are women.[13] A general duty which recognises the gendered impact of abuse would reflect this approach. This is particularly important in a context where the UN Special Rapporteur on violence against women reports that there has been a growth in commissioning of gender-neutral services, which disregard the specific needs of women and girls.[14] 

19. The legislative framework for equality in Great Britain (the Equality Act 2010) does not preclude a reference to the gendered impact of abuse within the Bill. The Public Sector Equality Duty (PSED) requires public authorities to have due regard to the need to tackle unlawful discrimination and advance equality of opportunity.  Compliance involves consideration of positive action measures to overcome disadvantage experienced by and meet the different needs of particular protected groups.[15]  To avoid indirect discrimination, public authorities may be required to meet the needs of specific protected groups, such as women from particular ethnic or national groups, when making decisions about funding priorities and planning services for victim-survivors.

Migrant survivors of domestic abuse

20. Migrant women are disproportionately affected by domestic abuse.[16] This is particularly the case for women with insecure immigration status. Ethnic minority and migrant women in England experience higher rates of domestic homicide.[17] These groups require specialist support, but relevant services are often unavailable.  Women with no recourse to public funds (NRPF) face particular barriers when trying to access life-saving support. For example, Women’s Aid identified that an average of only one refuge space per region in England available is available for a woman with NRPF.[18]

21. In requiring the provision of support services free of charge, regardless of immigration status, the proposed general duty would reflect the requirements of CEDAW and the Istanbul Convention. The Istanbul Convention requires states to protect victims of gendered violence, no matter what their immigration status may be. It says that the ‘[i]mplementation of the provisions of this Convention by the Parties, in particular measures to protect the rights of victims, shall be secured without discrimination on any ground such as sex, gender, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, sexual orientation, gender identity, age, state of health, disability, marital status, migrant or refugee status, or other status.’[19]

A cross-Government requirement

22. If this Bill is to meet its objective of being a ‘once in a generation’ opportunity, it is crucial that a joined up approach is taken across Government.  Victim-survivors will face significant barriers when leaving – or recovering from - abusive relationships unless they have sufficient resources and access to relevant services. These may include: housing, money for living costs, flexible working, childcare, schools, healthcare, and transportation. The Istanbul Convention further provides that any measures put in place by a state must take into account and address the specific needs of persons made vulnerable by particular circumstances (Article 12(3)), including immigration status.

23. There is significant evidence to suggest that those with insecure immigration status face particular barriers when seeking to escape domestic abuse and access services.  The End Violence Against Women Coalition (EVAW) reports that recent policy developments in immigration, which have extended immigration control into wider areas of public and private life, are being used against women, by their abusers.[20] They advise that public authorities are prioritising immigration enforcement over the protection of victims and the pursuit of justice.  We have previously called for an end to the sharing of data between healthcare providers and immigration officials in England.[21]

24. A general duty on Ministers across Government to consider how the policy choices they make will impact adversely on victims of domestic abuse responds to these concerns. The proposed duty would have some similarities with the Public Sector Equality Duty, but it would be tied to the aims pursued through the Domestic Abuse Bill.  

25. Article 50 of the Istanbul Convention requires states to ensure that law enforcement agencies respond to domestic abuse and VAWG, and protect victims.[22] We therefore welcome the provision to put the guidance for the domestic violence disclosure scheme on a statutory footing. This will underline the importance of an effective response by public authorities.

Broadening the definition of abuse[23]

26. We welcome the fact that the proposed statutory definition includes coercive and controlling behaviour, and ‘economic’ rather than ‘financial’ abuse. However, it is crucial that the definition is sufficiently inclusive, so that victim-survivors don’t face unnecessary barriers when seeking support or justice. Unless certain forms of violence are included in the definition, public bodies may not immediately recognise them as domestic abuse.[24]  To ensure it is in line with the Istanbul Convention, we recommend that the statutory definition also includes: forced marriage, female genital mutilation, slavery and sexual exploitation.[25]  We note that the definition of domestic abuse under the VAWG Wales Act includes FGM and forced marriage.[26] 

27. The Convention requires victims of violence against women and girls to be protected, regardless of their immigration status.[27] However, EVAW reports that domestic abuse includes threats about women’s immigration status and control of their documents and applications.  Fear of their own or their children’s deportation prevents migrant women from reporting abuse, and seeking protection and justice’[28].  We therefore recommend that coercive control over a person’s immigration status is expressly included in the statutory definition.

28. The All-Party Parliamentary Group on domestic violence examined online abuse in 2017, and advised that online abuse and harassment often reflect a pattern of coercive and controlling behaviour[29]. We therefore recommend that online abuse is included in the statutory definition.

The Domestic Abuse Commissioner[30]

29. We welcome the proposal to create an independent commissioner to tackle domestic abuse.  However, in light of the Istanbul Convention and the existing policy framework, we are disappointed that the Government has not created a ‘VAWG and Domestic Abuse’ Commissioner. 

30. We recommend that the Commissioner’s role should be full time, in light of their extensive remit, and the prevalence of domestic abuse in England and Wales.  It is our understanding that comparable roles, such as the Independent Anti-Slavery Commissioner and the Victims Commissioner are full time roles.

31. We recommend that the Bill ‘requires’ rather than ‘allows’ the Secretary of State to provide funding for the Commissioner. It should be explicit that the sums allocated need to be appropriate, with regard to the functions performed by the Commissioner. 

32. We welcome the proposed general functions of the Commissioner, as well as the recognition of the adverse impact of domestic abuse on children.  We recommend the following functions are added:

• Collect disaggregated statistical data on all forms of domestic abuse[31].
• Take account of the particular impact of domestic abuse on women, and on others groups sharing a protected characteristic/s.

33. In line with the Istanbul Convention, we recommend that the Commissioner should ‘promote’, rather than ‘encourage’ good practice.[32] 

34. We welcome the requirement for inclusion of representatives from adult and children’s social care, as well as someone to represent the interests of victims of domestic abuse on the Advisory Board.  We recommend that the advisory board should also include a representative from the Independent Anti-Slavery Commissioner, as well as a representative with expertise on harmful practices such as FGM and forced marriage.  This would help to ensure a holistic approach to domestic abuse as required by Article 7 of the Istanbul Convention.

35. We support the proposed establishment of a victims and survivors’ advisory group, to ensure that the Commissioner engages directly with this group. 

36. Finally, we recommend that further information is provided about how the Commissioner will work with the VAWG National Adviser in Wales, as well as with any relevant bodies in Scotland.

Removing barriers to justice

Special measures

37. Article 56 of the Istanbul Convention requires States to ‘[t]ake the necessary legislative or other measures to protect the rights and interests of victims, including their special needs as witnesses, at all stages of investigations and judicial proceedings.’

38. We welcome proposals for the automatic provision of special measures for victim-survivors of domestic abuse in the criminal courts.  They will automatically be treated as eligible, unless they advise otherwise. This assumption already applies to proceedings in relation to sexual offences and modern slavery.

39. However, in our view the Bill needs to go further.  There is widespread evidence that more needs to be done to protect survivors in the family courts.[33] We therefore recommend that the Bill be strengthened, by extending this provision to the family courts.

Cross examination

40. The number of unrepresented parties in domestic abuse cases in the family courts has been increasing year-on-year. In 2017, 28 per cent of applicants and 88 per cent of respondents were unrepresented, compared with 15 and 77 per cent respectively in 2011.[34] This means that victim-survivors may be faced with cross-examining their abuser, or being cross-examined by them.  We therefore welcome the introduction of provisions to prevent cross-examination by alleged perpetrators in the family courts.  This provision is long overdue, as the Government made a commitment to ban this in February 2017.

41. We note, however, that this protection only applies in cases where there has already been an injunction, conviction, caution or charge.  Where a victim informs the court that they have been subject to abuse, it is within the court’s discretion to prohibit cross-examination. The Commission has concerns about this, and we recommend that the Bill includes a prohibition on cross-examination in all cases where domestic violence or abuse is raised. Further information would also be helpful, explaining how this representation will be provided and resourced.

Broader measures to protect fair trial rights

42. There is further a need for the Government to consider more broadly how to promote and protect fair trial rights in this area.  For example, the Government has acknowledged that legal aid financial eligibility thresholds may present barriers for some victim-survivors.[35] Further, although the evidence requirements have been relaxed for accessing family legal aid through the domestic violence gateway, there is evidence to suggest that some people still do not know they can access legal aid in such cases.[36]  Legal aid may also be withdrawn where a public authority assesses that there has not been domestic violence, despite evidence from a domestic violence support service.[37] The Commission is also concerned by reports that people are being charged for evidence (including medical evidence) that they need to access legal aid in domestic abuse cases.[38]

Increasing protections for victims with insecure immigration status

A prohibition on information sharing             

43. Southall Black Sisters have identified a number of failures in relation to the police response to migrant and BME women who have suffered abuse. These include a failure to treat BME women with respect and sensitivity, treatment amounting to explicit racism, a failure to supervise interpreters and ensure that they don’t breach confidentiality and a preoccupation with immigration enforcement rather than protection.[39]  The Commission further notes the recent finding of the Home Affairs Select Committee that ‘[m]any police forces continue to share details of victims with the Home Office for the purposes of immigration control’.[40]

44. More broadly, the Commission is concerned that the threat of information sharing by a range of service providers may prevent those with insecure immigration status from seeking the support they urgently need to escape and recover from abuse. The Commission recommends that the Bill is amended to include a prohibition on police as well of providers of healthcare and other support services from sharing information about an individual’s immigration status for the purpose of immigration control.

The Destitute Domestic Violence Concession

45. The Destitute Domestic Violence Concession (DDVC) provides those who are eligible (specifically, those on a spousal visa) with temporary leave outside the Immigration Rules.  Where it’s granted, it applies for three months and permits employment and immediate access to benefits displacing the normally applicable requirement of no recourse to public funds. The DDVC is designed to provide victims of domestic violence with both the means to leave an abusive partner and the time to make an application for leave to remain. The Commission notes with concern the interim findings of an independent evaluation of the DDVC, facilitated by Southall Black Sisters, indicating that the three month time limit allowed by the DDVC represents a major barrier to women in obtaining accommodation, accessing support and obtaining legal advice and representation.[41]

46. We support the calls of expert service providers, including Southall Black Sisters, for an extension of the timeframe for the Destitute Domestic Violence Concession from three to six months.

47. We further have ongoing concerns for survivors who are not on a spousal visa who are not eligible for the concession. The Government has indicated it is ‘currently working to create an evidence base in order to review and improve how the immigration system caters to individuals who have been victims of domestic abuse’.[42] We recommend that the Government urgently publishes more information about the ways in which it intends to ensure that all survivors of domestic abuse are able to access support or services, regardless of their immigration status, in line with the Istanbul Convention.

Annex A: Proposed amendments

The draft clauses below are indicative of amendments of those that the Commission is likely to propose, or support, as the bill progresses.  They are provided to inform the Committee’s thinking on how the issues highlighted in this evidence paper might be addressed in the bill, but are not yet finalised and may be further modified.

Draft proposals:

Insert new Part at the beginning of the Bill

Part 1

GENERAL DUTIES

1               Secretary of State's duties

(1)     The Secretary of State must adopt appropriate and effective measures directed at ensuring the prevention of domestic abuse and the protection and support of victims of domestic abuse.

(2)     For the purpose of subsection (1), the Secretary of State must prepare and publish a strategy to prevent and respond to domestic abuse within the period of three years beginning with the date on which this section comes into force. The Secretary of State must review the strategy referred to within each period of three years beginning with the date on which a strategy is published under this subsection.

(3)     The Secretary of State must make arrangements and provide adequate resources for the provision of services for the protection and support of victims of domestic abuse.

(4)     The Secretary of State must introduce such other measures as are appropriate and effective to overcome domestic abuse against women in particular, recognising that domestic abuse affects women disproportionately and that they may have a particular need for protection and support including by appropriate single-sex services.

2

(1)     The Secretary of State must exercise the functions conferred by this Act with a view to securing continuous improvement in:

(a)           the protection of persons, against domestic abuse;

(b)          the protection of women in particular, against domestic abuse;

(c)           the quality of services that are provided to victims of domestic abuse.

(2)     In discharging the duty under subsection (1) the Secretary of State must, in particular, act with a view to securing continuous improvement in the outcomes that are achieved from the provision of the services.

(3)     The outcomes relevant for the purposes of subsection (2) include, in particular, outcomes which show—

(a)           the effectiveness of the protection referred to under section 1(a) and (b);

(b)          the effectiveness of the services referred to under section 1(c), and

(c)           the quality of the experience undergone by victims of domestic abuse.

(4)     In exercising functions under this Act, the Secretary of State must have regard to the need to reduce inequalities between people at risk of, or victims of, domestic abuse with respect to protection against domestic violence and support for victims of domestic violence.

(5)     Any services provided pursuant to this Act or in pursuance of its objects must be free of charge.

3

(1)     A person who is subject to immigration control within the meaning of the Immigration Act 1971 or who is an asylum - seeker is eligible for the protection and the services provided pursuant to this Act or in pursuance of its objects, and such protection and services must be provided free of charge.

4

(1)     In the exercise of their functions, except to the extent they relate to Welsh devolved matters, a Minister of the Crown must have due regard to the need to prevent domestic abuse and protect and support victims of domestic abuse.

5

(1)    In this Part–

“domestic abuse” has the meaning given by section xx of this Act;

the “objects” of this Act are the prevention of domestic abuse and the provision of support for victims of domestic abuse;

“inequalities” include any inequalities that may arise because of age, disability, gender reassignment, pregnancy or maternity, race, religion or belief, sex sexual orientation and such expressions having the meaning afforded under Chapter 1 of the Equality Act 2010 and immigration status.

“an asylum – seeker” means a person—

(a) who is in the United Kingdom,

(b) who has made a claim for asylum at a place designated by the Secretary of State,

(c) whose claim has been recorded by the Secretary of State, and

(d) whose claim has not been determined.

Annex B: Funding: non-legislative recommendations

Refuges

In addition to new legislative requirements, the Commission considers that the Government should address concerns that refuge spaces do not meet required levels. [43] Article 23 of the Istanbul Convention requires states to provide sufficient, safe and easily accessible shelters for victims, especially women and their children[44]. We recommend that the number of refuge places in England and Wales should meet minimum levels recommended by the Council of Europe[45]. 

In addition to the number of places available, refuges often face restrictions in who they can admit, such as being unable to accept women outside their locality. This is a significant problem, as around three quarters of women cross local authority boundaries to access a refuge.[46]  We recommend that a statutory ban be introduced, to prevent local authorities from requiring applicants to demonstrate a local connection.

Specialist services

Victim-survivors with different protected characteristics may be particularly affected by domestic abuse, or experience hurdles when trying to access support. For example, disabled women experience disproportionate levels of all forms of violence and abuse from carers, partners and those in the community, [47] and face additional barriers in accessing support.[48] It is estimated that less than 2% of refuge spaces in England have wheelchair access.[49] 

Ethnic minority and migrant women in England experience higher rates of domestic homicide, and half of BME women survivors, have multiple perpetrators.[50] Sisters for Change advise that BME women’s support needs are different, due to factors like language, family structure, income or immigration status.[51]  Funding cuts to VAWG services have had a disproportionate impact on BME organisations. In some areas, they have lost over 40% of their refuge funding. In other areas, the local authority has removed specialist BME-led provision from their contracts.[52]  We recommend that sufficient funding is available to provide appropriate support to all survivors. This includes LGBT people, black and ethnic minority women, young people, disabled people, and those with complex needs.

April 2019