Domestic Violence, Crime and Victims Bill [Lords]

Public Bill Committee, 22 June 2004.

Standing Committee E

Domestic Violence, Crime and Victims Bill [Lords]

Marion Roe (Conservative, Broxbourne)

Order. As it is very warm in this Room, hon. Members may remove their jackets. I remind Members that copies of the programme motion are available in the Room and that it supersedes the order of consideration motion on the amendment paper.

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move,

That—

(1) during proceedings on the Domestic Violence, Crime and Victims Bill [Lords] the Standing Committee shall meet on Tuesdays and Thursdays at 9.10 a.m. and 2.30 p.m.;

(2) 10 sittings shall be allotted to the consideration of the Bill in Committee;

(3) the proceedings shall be taken in the following order: Clauses 1 to 16, Schedule 1, Clause 17, Schedule 2, Clauses 18 to 20, Schedule 3, Clauses 21 to 24, Schedule 4, Clause 25, Schedule 5, Clauses 26 to 30, Schedule 6, Clauses 31 to 34, Schedules 7 and 8, Clause 35, Schedule 9, Clauses 36 to 39, New Clauses, New Schedules, remaining proceedings on the Bill;

(4) proceedings on the Bill shall (so far as not previously concluded) be brought to a conclusion at 6.55 p.m. on Tuesday 6th July 2004.

It is a pleasure, Dame Marion, to see you in the Chair. I know that I speak on behalf of the Committee in warmly congratulating you on your new title, and we shall learn to address you by it. On a different note personal to you, one of my responsibilities last year was to respond for the Government to the private Member's Bill on female genital mutilation, during which time I learned a lot about your significant contribution on that subject. It will be a pleasure to have you preside over our proceedings. I pay tribute to your work in this field.

We had a good Second Reading debate, and I do not intend to rehearse all the arguments now. The Bill deals with a number of important measures, strengthens the law on domestic violence, deals with a variety of new arrangements for victims and introduces a new offence of causing or allowing the death of a child or vulnerable adult. We made it clear on Second Reading that the Government intend to overturn four changes made to the Bill in the other place: two relate to the new offence, one relates to unfitness to plead and one relates to multiple offending. Various Members at various times promised us significant debate on those issues. I look forward to that.

We have already tabled amendments to bring the rights of victims of mentally disordered offenders in line with the rights of victims of serious offenders. I

shall shortly table amendments to bring parallel arrangements for Northern Ireland. Towards the end of last week we tabled an amendment to give the Criminal Injuries Compensation Authority authority to recover money from offenders that has been paid in compensation. I have already made an informal commitment, and I make it again formally on the record, that we will soon table other amendments in relation to the victims' element of the Bill. Hon. Members from all parties will look forward to studying them closely. We will also introduce amendments on fine enforcement, which will command the support of the whole Committee.

Our discussions so far on the substance of the Bill and the timetabling of our deliberations have been consensual. That should be the spirit of the Committee. We will be flexible. We have already agreed that there may be fewer sittings than planned, or there may be more, but however many sittings there are, we will give the Bill thorough consideration so it goes back to the House in even better shape than it is in this morning. I reiterate that any Committee member can approach members of the Bill team for advice and to consult on and discuss any ideas or questions. We should be entirely open in our consideration of these matters.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I echo the words of the Minister, Dame Marion. It is delightful to see you in the Chair, particularly as you have such a long track record. It is so nice to be able to call you Dame Marion, not Mrs. Roe, because it has a much better ring to it. The honour is greatly deserved.

We have pursued the Bill in both Houses in a constructive spirit. There are differences between the shape of the Bill as the Conservatives would like it to be and that which the Minister is proposing. I hope, Dame Marion, that we will not give you and Mr. Benton too much trouble. We are practising grown-up politics: perhaps that is why nobody takes any notice outside this Room and the Chamber. It is rather sad that that should happen when Parliament is doing its best.

As you will have noticed, Dame Marion, we are slightly top heavy on the Conservative side of the Opposition Bench. I am delighted that my hon. Friends the Members for Beaconsfield (Mr. Grieve) and for Epping Forest (Mrs. Laing) will join me: we shall be boxing and coxing.

As the Minister said, a couple of issues need to be addressed. It has not escaped all our notices that part of the Bill is arriving at a very late stage. The train left the station six months ago in the Lords, and the other place has not had an opportunity to consider many of the Government amendments being put forward. Will the Minister comment on the position of their lordships' House so far as that is concerned and on what will happen when the Bill returns to the upper House? I would also like him to give a definite date for the tabling of the remaining amendments and assurances that they will be the last amendments tabled, other than those that may be negotiated during this Committee stage. The Government may be

minded to accept some, because of the powerful arguments of his hon. Friends and of Opposition Members.

It is fair to say that we were disappointed that various amendments were produced at such a late stage. It is a pity. I want the Minister's undertaking that should the Committee agree, by consensus, that we need extra time to consider provisions when they come forward, the usual channels will have the negotiations that we have anticipated and will have the power to extend the Committee stage or to arrange for any sitting to sit much later than planned. That aside, I look forward to our deliberations and, as the Minister said, I hope that we can produce a piece of legislation that does justice to the serious subjects that it covers.

David Heath (Liberal Democrat, Somerton and Frome)

I, too, welcome you to the Chair, Dame Marion, and I echo the congratulations from both sides on your elevation. Having had the pleasure of serving on a previous Committee under your chairmanship, I know that we can look forward to expeditious consideration of the business and good order throughout. That is exactly what one would expect.

The Bill is important, but I hope that it does not require us to extend our proceedings unnaturally. We can fully debate the matters before us, and I hope that we will be able to do so within the time allocated.

The fact that the Government propose to overturn the improvements made to the Bill in another place gives me cause for concern and deep regret. The Government are wrong, and I look forward to arguing why that is so. Those in another place who amended the Bill did so for the right reason: to make it a better piece of legislation. I have every anticipation that if the Government reverse those changes in this House, the same amendments, or something similar, will return to us at a later stage, and the Bill will be thus delayed.

I also have concerns about the late introduction of the proposals now before us. From the sound of the Home Secretary's comments on them, we will welcome them, but, nevertheless, to bring them in at this stage gives cause for concern, not least because it has been suggested that that will require recommittal to another place. That seems unfortunate, because the Bill has brought about a great deal of consensus between the political parties about the right way forward. We welcome it, but we seek to improve it by addition and by resisting the Government's attempts to change what it contains as a result of efforts in another place. I hope that we will make speedy progress.

Geoffrey Clifton-Brown (Conservative, Cotswold)

On behalf of the usual channels, Dame Marion, I, too, welcome you to the Chair and add my congratulations on your elevation. It is good to hear that you have had that recognition, which is justly deserved.

The Bill is very important to many of our constituents, and many outside bodies will watch our progress with great interest. If the Bill in any way curbs some of the violence, distress and cruelty prevalent for too many people in this country, we will have done our constituents a great service.

I am certain that we will be able to make orderly progress through the Bill. I welcome the Under-Secretary of State for the Home Department, the hon. Member for Wythenshawe and Sale, East (Paul Goggins), and pay tribute to my hon. Friend the Member for Chesham and Amersham (Mrs. Gillan) for the gracious way in which she opened. I also look forward to working with my hon. Friends the Members for Beaconsfield and for Epping Forest.

We oppose programme motions whenever and wherever they occur. Recently, I served on the Planning and Compulsory Purchase Bill, in which we had, I think, the worst example of programming. Unprecedentedly, we had to come back for a second Standing Committee, during which another huge chunk was inserted into the Bill. Not content with that, the Government then had to insert yet another huge chunk on Report. To my mind, that was unacceptable.

Given the consensus in this Committee, I hope that the timetable will be acceptable; I believe that it is, and the usual channels have been accommodating in indicating flexibility, which I welcome. It is unfortunate, however, that, during the passage of a Bill that started in the House of Lords, the Government are going to overturn some key provisions discussed in six House of Lords sittings. Not only that, but they intend to add what may turn out to be completely consensual provisions on victims of crime at this stage of the Bill. For the sake of good order and conduct, it would have been a good idea to have thought about that and put it into the Lords Bill in the first place.

Having said that, I do not want to carp or to get the Committee off to a bad start. I look forward to working with you, Dame Marion, and no doubt with the Government, with all good humour and good speed to get this Bill on to the statute book.

Vera Baird (Labour, Redcar)

I, too, congratulate you, Dame Marion. You have had a long engagement with this issue, and it is good that you are in the Chair.

I have tabled new clause 22, which is, at the moment, the tail-ender, and I raise the matter now while we are discussing programming and possible adjustments to it. The new clause was tabled by me alone, and it may therefore easily be regarded as of less than primary importance—[Hon. Members: ''No!'']. I am glad that I said that.

The new clause represents the Law Commission's provisional recommendations on the law of manslaughter, and that it why it is important to reach it. It would alter the law of provocation. As currently configured, that law allows men to be acquitted when they kill women in a sudden rush of anger, from relatively small provocation, but it does not allow women to be acquitted of murder when they kill from fear after long abuse. The Law Commission was specifically asked to inquire into that in the hope that it would be ready with proposals, so that we could get them into the Bill. It has reported only provisionally, but I understand that the final recommendations will be very similar, if not identical, to the current ones. Consequently, I tabled the new clause, in the hope that the Government would accept it. If not, I hope that it

will be debated as fully as possible, so that it, or a very similar provision, may be accepted in some future Bill at an early stage. I ask those in charge of programming to ensure that that clause will be reached in due course.

Ann Cryer (Labour, Keighley)

I add my congratulations, Dame Marion, and those of the all-party group on breast cancer. I am sure that all its members will be delighted by the news.

Has the Minister taken cognisance of my comments on Second Reading regarding a criminal offence of forcing to marry, or aiding or abetting that? He promised that he would. Will he table a new clause or an amendment along those lines?

Paul Goggins (Labour, Wythenshawe and Sale East)

I can tell the hon. Members for Cotswold (Mr. Clifton-Brown) and for Chesham and Amersham that the reason why the amendments on some of our proposed victim measures have come so late in the day is that we have had consultation on them; they are of interest to the public, and it was important that we got feedback, which is why we were not able to table them before. Now that the consultation is complete and we are clear on policy, we will bring forward the amendments we want to make. I cannot be precise as to the minute when they will be tabled, but I hope that it will happen in the next couple of days, which should give all Committee members time to consider them. I have learned in life, if not as a Minister, never to say never, but I hope they will be all the substantial further amendments that we intend to make. I do not envisage any major or controversial further amendments, although—who knows?—hon. Members may persuade me on one or two issues, and I may need to reconsider and bring further proposals to the Committee or to the House on Report.

My hon. Friend the Member for Keighley (Mrs. Cryer) mentioned forced marriages. I indicated on Second Reading that the Government were sympathetic to her argument. We are still considering how best that might be done in the Bill, and I will keep her and the Committee up to date with any conclusions that we reach.

I want to emphasise that, both here and in the other place, everything will be agreed in the usual way through the usual channels, but we have made it clear that we will be flexible. We will have more or fewer sittings as we need them, and we will ensure that there is ample time for all matters to be discussed, including the issues of provocation raised by my hon. and learned Friend the Member for Redcar (Vera Baird). It is appropriate for the Committee to discuss that; I shall argue strongly that it is not appropriate for us to decide finally on the matter but helpful if we discuss it in detail, and there will be time for that.

I will be joined on the Front Bench by the Under-Secretary of State for Constitutional Affairs, my hon. Friend the Member for Shipley (Mr. Leslie), who will help us with certain matters, and by my right hon. and learned Friend the Solicitor-General, who also has an honourable track record on these issues.

Question put and agreed to.

Marion Roe (Conservative, Broxbourne)

I remind the Committee that there is a money resolution in connection with this Bill, copies of which are available in the Room. I also remind members that adequate notice should be given of amendments. As a general rule, I do not intend to call starred amendments, including any that may be reached during an afternoon sitting of the Committee. I also remind members to switch off their mobile telephones.Clause 1 Breach of non-molestation order to be a criminal offence

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

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move amendment No. 14, in clause 1, page 1, line 6, after 'violence)', insert—

'(1) In section 42 after paragraph (2)(b) insert—

''(c) if in any family proceedings the court considers that the respondent has been, or is likely to be responsible for an act of domestic violence as defined by section 30A.''.

(2) '.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss the following:

Amendment No. 1, in clause 1, page 1, line 8, leave out 'does anything' and insert

'commits an act of domestic violence.'.

New clause 3—Definition of Domestic Violence—

Before section 30 in Part 4 of the Family Law Act 1996 (c.27) (Family Homes and Domestic Violence) insert—

''30A Definition of domestic violence

(1) In this Act, and in any other family proceedings, 'domestic violence', in relation to any person, means violence against that person by any other person with whom that person is, or has been, in a domestic relationship.

(2) In this section, 'violence' means

(a) physical abuse;

(b) sexual abuse;

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

(i) intimidation;

(ii) harassment;

(iii) damage to property;

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

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

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

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

(b) puts that child, or allows the child to be put, at real risk of seeing or hearing that abuse occurring; but the person who suffers that abuse is not regarded, for the purposes of this subsection, as having caused or allowed the child to see or hear the abuse, or, as the case may be, as having put the child, or allowed the child to be put, at risk of seeing or hearing the abuse.

(4) Without limiting subsection (2) of this section;.

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

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

(5) Behaviour may be psychological abuse for the purposes of subsection (2)(c) of this section which does not involve actual or threatened physical or sexual abuse.''.'.

New clause 9—Definition of Domestic Relationship—

'(1) For the purposes of this Act, a person is in a domestic relationship with another person, if the person—

(a) is a partner of the other person; or

(b) is a family member of the other person; or

(c) ordinarily shares a household with the other person; or

(d) has a close personal relationship with the other person.

(2) For the purposes of subsection (1)(c) of this section, a person is not regarded as sharing a household with another person by reason only of the fact that—

(a) the person has—

(i) a landlord-tenant relationship; or

(ii) an employer-employee relationship; or

(iii) an employee-employee relationship—

with that other person; and

(b) they occupy a common dwellinghouse (whether or not other people also occupy that dwellinghouse).

(3) For the purposes of subsection (1)(d) of this section, a person is not regarded as having a close personal relationship with another person by reason only of the fact that the person has—

(a) an employer-employee relationship; or

(b) an employee-employee relationship—

with that other person.

(4) With limiting the matters to which a Court may have regard in determining, for the purposes of subsection (1)(d) of this section, whether a person has a close personal relationship with another person, the Court must have regard to—

(a) the nature and intensity of the relationship, and in particular—

(i) the amount of time the persons spend together;

(ii) the place or places where that time is ordinarily spent;

(iii) the manner in which that time is ordinarily spent;—

but it is not necessary for there to be a sexual relationship between the persons:

(b) the duration of the relationship.'.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Amendment No. 14 has been helpfully drafted to enable us to discuss at the start of this first sitting the definition of domestic violence. That topic was raised in the early stages of deliberations in the other place, and I hope that the Committee will bear with me if I reiterate some of the arguments that members have no doubt already had the opportunity to read.

The Minister is familiar with the large number of outside organisations that back a formal definition. They think it is extraordinary that, despite the fact that domestic violence is the leading subject of the Bill, there is no definition of domestic violence that the Department has agreed or consulted on outside its confines. I understand that the Home Office uses a three-line definition involving any violence between current and former partners in an intimate relationship, wherever and whenever the violence occurs, with the violence including physical, sexual, emotional and financial abuse.

I further understand from some organisations that have briefed me on the Bill that a ministerial committee may have adopted a definition of domestic violence for use across all Departments. There was some concern that another definition might have been adopted that has yet to be published, and which has not been subject to any consultation. Therefore, I ask Minister what the latest position is and whether the

organisations that have been briefing us are mistaken in their view that there is a new definition that will be commonly used across all Departments.

I am particularly grateful to Women's Aid, which has provided briefings on the amendments, and particularly on new clauses 3 and 9. New clause 9 defines domestic relationships. Many people felt that, because such a definition was missing in the other place, Baroness Scotland was not willing to consider it. Whether that is the case remains to be seen; we will learn more when the Minister responds.

Women's Aid has the backing of about 200 organisations for the inclusion of a definition of domestic violence. The definition suggested is taken from New Zealand's Domestic Violence Act 1995. It has been endorsed by many organisations dealing with domestic violence, and by the Advisory Board on Family Law's Children Act sub-committee, which said that it was a useful, comprehensive and gender-neutral definition.

Why is a definition needed? Some organisations think that the existing definition that the Home Office uses is too narrow. Southall Black Sisters, with which I am sure every Committee member is familiar, says that the Home Office definition is limited to violence between partners and former partners in intimate relationships. Many agencies would like an extended definition to include other members of the family. Although Southall Black Sisters recognises the need to focus on intimate relationships, since partners and ex-partners are the most common group of perpetrators or victims, the definition that the Home Office uses fails to recognise domestic violence perpetrated by other family members. Many black and minority women find that one or more members of the family and the wider community can perpetrate or collude in domestic violence. That is particularly the case where Asian women live in extended families and can be subject to abuse from partners, ex-partners, parents, siblings, uncles, aunts, in-laws and former in-laws, as well as people in the community such as family friends, community leaders and even bounty hunters, private detectives or organised networks of men.

The Minister may be familiar with the news this morning that, on the back of a conference being held in The Hague, the Metropolitan police is looking at honour killings and bounty hunters and is examining more than 100 cases of murder in the United Kingdom to see whether there is any linkage. The Minister may want to inform the Committee on the latest position on that, because I know that hon. Members on both sides of the Committee—particularly on the Government Benches—have taken a great deal of interest in the issue and have been very brave in making a stand on it.

It is also thought that, by limiting the definition, the Home Office has excluded culturally specific forms of harm such as forced marriage and female genital mutilation. I need go no further because our Chairman is probably the greatest expert in this House on that subject. However, I hope that widening the definition will address some of the issues that Southall Black Sisters in particular has identified as part of the problem.

Women's Aid has produced an excellent briefing. I make no apologies to the Committee for taking members through some of the arguments it deploys, particularly because it represents the views of more than 200 organisations that have endorsed the line on which it has taken a lead. Although domestic violence accounts for a quarter of all violent crime, there are many myths and misconceptions about it that result in ineffective outcomes when cases enter the justice system. By the time such cases reach the family courts, when abusive parents apply for contact or residence orders, the risks associated with domestic violence are usually perceived as not very serious. A widespread misconception among legal professionals is that domestic violence stops on separation. However, research shows that women are at higher risk of violence and of being killed after leaving a violent partner.

Another common misconception is that domestic violence affects only adults, but nearly three-quarters of children on the child protection register are in cases featuring domestic violence. That reflects the fact that men who abuse their female partners are also likely to abuse their children, and children are often traumatised by witnessing domestic violence.

Many legal professionals believe that contact is good for the child, even with a violent parent. For that reason courts have made orders granting unsupervised contact to schedule 1 offenders convicted of offences against children. Last year a survey found that 16 per cent. of refuges in England and Wales knew of local cases in which a contact visit with a violent parent had resulted in a child being significantly harmed since the good practice guidelines were introduced in April 2001.

The most commonly asked question with regard to domestic violence is, ''Why doesn't she leave?'' For someone who has not been subjected to psychological abuse, it can be difficult to understand why an abused woman stays in a relationship for years without notifying the police or social services and why some women return to their abusers not once but several times. The court may decide that there are good reasons not to believe allegations of abuse, but in the experience of Women's Aid, women who return to their abusers are often those who have been most psychologically damaged by their experiences. It believes that the amendment will help to dispel those misconceptions because it acknowledges that domestic violence affects children and recognises the significance of psychological and emotional abuse.

Domestic violence presents the courts with a serious problem because of the legal principle that he who asserts must prove. Abused women often find it difficult to prove that abuse has taken place because it typically occurs behind closed doors in the family home when no independent witness is present. Even when it is possible to prove that a violent incident took place, the court may decide not take it seriously because it was only one incident or the woman was not seriously injured. In one case, in which the court

accepted that the father had attacked the mother when she was holding the child, that was not considered a serious assault, so a contact order was granted. Eventually contact became unsupervised and was enforced with a threat of a penal notice. The father subsequently sexually abused the child.

It is vital that the courts should understand the dynamics of abusive relationships so that they can provide appropriate protection for the child. The amendment suggested by Women's Aid, which I have tabled on its behalf, encourages the courts to do that by considering all aspects of the abuse and its effects on the child.

Vera Baird (Labour, Redcar)

I do not want to create an unpleasant, contentious atmosphere, but Women's Aid informs me that it asked the Opposition not to table the amendments on its behalf. It briefed Opposition Members about them but wanted them to be tabled by Labour Members because it felt that that would be more advantageous to its arguments. It is very displeasing to Women's Aid, whose members have been on the telephone and have e-mailed me a number of times, that the Tories have, as it were, filched them.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am surprised by that, and I am not sure how to respond. I have talked to many people, including Women's Aid, which provided me with a briefing, and I undertook to raise the issues on its behalf. It has not phoned me and asked me not to table the amendments. In fact, the only phone call I received was from the Mayor's office, complaining that I had tabled some amendments belonging to it that were going to be tabled by Labour Members. I undertook to consider that, but said that it would be helpful if we supported those amendments.The hon. and learned Lady is hitting a sour note. I am tabling the amendments honestly and genuinely. If she consults the House of Lords Hansard, she will see that these matters were also raised by my noble Friend Baroness Anelay of St. Johns in another place.

David Heath (Liberal Democrat, Somerton and Frome)

Just to correct the record and establish who had ownership, the same amendment was tabled by my noble Friends Baroness Thomas of Walliswood and Lord McNally in another place.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I was about to say that the original amendments were tabled by the Liberal Democrats in the other place.

Dominic Grieve (Conservative, Beaconsfield)

I do not think that an amendment is property, although it would be discourteous to table an amendment if someone else had come up with the idea and wished to table it themselves. The hon. and learned Member for Redcar may agree that the purpose of discussion in Committee is to table amendments, even if one does not agree with them entirely, so that they can be considered. That is what my hon. Friend has done.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I will give way again.

Vera Baird (Labour, Redcar)

I would not have raised the issue if the hon. Member for Chesham and Amersham had not asserted specifically, in her last sentence before I rose,

that she had tabled the amendments on behalf of Women's Aid. That is incorrect. The amendments are anybody's, if there is interest in talking about them. None the less, Women's Aid is affronted that the hon. Lady has filched them.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I had chosen to rise above party political matters on this Bill, and I am disappointed that the hon. and learned Lady, who has worked with me in other instances, has chosen to speak about this. Perhaps I should say on the record that Women's Aid might like to contact me.

Vera Baird (Labour, Redcar)

Women's Aid did contact the hon. Lady and indicated its displeasure. It has telephoned and e-mailed me many times yesterday and today; it is upset that this course of action has been proposed and does not want the Government to take against its proposals. The amendment was filched by the Tories. That is unacceptable behaviour. It is absurd to accuse me of bringing party politics into the matter, when the amendments were filched for a party political reason by a party with less of a track record on domestic violence than Labour's. I have made the point. Shall we proceed? The hon. Lady ought to speak to Women's Aid if she does not understand the degree of displeasure that it feels. She is right to say that the office of the Mayor of London is also aggrieved that she has tabled its amendment.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

That gives some insight, into the behaviour not of the Conservatives, but of Labour. I am surprised that the hon. and learned Lady has attacked me. I had no contact with Women's Aid yesterday, although I may have some unread e-mails. I am unaware that it has asked me to withdraw the amendments, and I will continue to pursue them, because it is suitable to discuss the definition of domestic violence at this initial stage. I had hoped that the hon. and learned Lady and several other hon. Members would join in. I made it clear in my opening remarks that the fact that there is no definition in statute was supported by some 200 organisations. Perhaps I tabled the amendment not on behalf of Women's Aid, but on behalf of a number of other organisations, many of which had the opportunity to brief us.

Vera Baird (Labour, Redcar)

I am grateful yet again to the hon. Lady for giving way. I hope that this is the last intervention, after which she can get on with her argument. I made a clear point. She has suggested that she is the only person capable of tabling the amendment on behalf of 200 organisations. I tabled all the amendments, but the hon. Lady had tabled them first. That is the problem for Women's Aid, which was most specific as to how it wanted the amendments tabled, and who should do so.

I have made my point clearly. The hon. Lady should read her e-mails, and she should contact Women's Aid, the Mayor of London and Southall Black Sisters, who are in the same frame of mind about her later amendment, but I will remind her of that when we reach it.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am sorry to hear such a sour note from the other side. I assure the Committee that there was no intention to score any political points. It seems to me that the hon. and learned Lady is a little upset because she did not get her amendments in first. She is quite capable of adding her name to any amendments, and if she would like to discuss this matter with me outside, she may be able to tell me which ones she would like to move so that we may be able to row in behind her. For the hon. and learned Lady to make accusations at this stage is wasting time, and what she has said is not the case as I see it.

The amendment encourages the courts to consider all aspects of abuse and its effects on the child. The next issue is how abusers and domestic violence perpetrators exercise power and control within the family. If legal professionals focus entirely on separate incidents of physical or sexual violence, they will fail to understand the corrosive effects of psychological abuse.

Meg Munn (Labour/Co-operative, Sheffield, Heeley)

I chair the all-party Voice group, which represents learning-disabled adults. The organisations that support that group are anxious that learning-disabled adults should be treated within mainstream legislation wherever possible, and I am concerned that the definition does not give credence to the issue that an abuser may not be somebody directly within the family. Has the hon. Lady considered that possibility, or that the abuser may even be a paid carer?

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The hon. Lady makes an excellent point, which she has raised at earlier stages. I hope the Minister will be able to address it, and if she would like to speak to this group of amendments as well, she will be able to make her points directly to him. He is aware of the issues she has raised and probably has some answers to make on the subject.

In the experience of Women's Aid, domestic violence typically involves a pattern whereby the man waits until the woman is committed to the relationship and then begins to exercise power and control through a wide range of abusive behaviour. He may be incredibly charming and persuasive, as many abusers are. Initially, the abuse may not seem very serious. For example, he may find reasons to prevent her from seeing or contacting any of her friends or relatives; he may be obsessively jealous; he may insist that she accounts for every single penny she has spent; he may check every phone call she has made; he may prevent her from leaving the house; or he may lock her in a room for several hours or days. The violence frequently starts when the woman is pregnant, or soon after the birth of a child. After assaulting the woman, the man may be apologetic, but there is a pattern of violence, increasing in frequency and severity if the relationship continues. That often involves sexual violence. The woman may be repeatedly raped, or forced to take part in pornographic acts. If there are children in the family, they are likely to witness the violence and to be abused themselves.

Abuse thrives on secrecy and intimidation. Isolation and humiliation are the strategies perpetrators typically use to ensure that their partners and children do not mention the abuse or try to escape. Abused women often feel ashamed of their situation because they have nobody to turn to for support, or to tell them it is not their fault. They are also likely to be frightened because abusers make terrible threats; for example, the abuser may threaten to kill or injure someone, to commit suicide or to have the children taken into care, if the woman flees from the family home. The threat to phone social services is particularly powerful, because most abused women are terrified that their children will be taken into care.

The amendment addresses the dynamics of domestic violence relationships, by defining psychological and emotional abuse and by recognising that a single act, or a number of acts that form part of a pattern of behaviour, may amount to abuse. A legal definition will encourage legal professionals to identify psychological and emotional abuse and to take it seriously.

Among issues raised in the other place was the claim that having a definition of domestic violence would fetter judges' discretion and cause problems because of inflexibility. The Children Act sub-committee clearly did not share those concerns. The Crown Prosecution Service has raised concerns that a definition of domestic violence might complicate criminal justice proceedings. However, as the Domestic Violence, Crime and Victims Bill specifically amends the Family Law Act 1996, that definition would apply only in family law proceedings and would not affect criminal law prosecutions.

It has also been claimed that the definition does not cover financial abuse, but including the words ''but not limited to'' in clause 2 would cover that and any other developing features of domestic violence. If we are to deal effectively with domestic violence, we need to recognise the nature and seriousness of the problem. The amendment provides a clear, comprehensive and gender-neutral definition, which is urgently needed to dispel the many misconceptions about domestic violence. The definition will provide a standard basis for decision making with regard to domestic violence cases and civil law cases. It could also provide a standard basis for a national strategic approach to tackling domestic violence, including monitoring and data collection and the development of appropriate policies, guidance and training in all relevant agencies.

If anything in the drafting of the amendments could be improved, were the Minister minded to accept them, we would of course accept any alterations that he would make. I have a feeling that he will resist them, but I felt duty bound as I was briefed on them to bring them to the Committee.

Hilton Dawson (Labour, Lancaster and Wyre)

I offer my congratulations, Dame Marion, on your deserved honour.

I support new clauses 3 and 9. In my view, it is essential that we have a statutory definition of domestic violence as well as a definition of a domestic relationship. The definition proposed in new clause 3 is taken almost entirely from the New Zealand legislation, which seems to work extremely well. As has been said, the Children Act sub-committee has commended it as a useful, comprehensive, gender-neutral definition of domestic violence. It is important that we have such a definition to enable the whole of society to take domestic violence much more seriously. Despite the work that Government have done and the cross-party consensus that clearly exists, one has to say that some in our country would yet deny that domestic violence exists and certainly deny that it operates on the scale and intensity and affects the range of people that the definition would seek to include.

It is therefore vital that we make it extremely clear that domestic violence exists and make plain the full extent of that appalling phenomenon. We are in a process of cultural change. Not many years ago, certainly within the clear recollection of everyone in the Room, there was no legislation whatsoever on domestic violence. Domestic violence issues were routinely dismissed, by the police and all concerned, as ''just a domestic''. It is a tribute to the people who have generated a policy shift in recent decades that we have made such progress. However, the fact remains that in family proceedings courts—the area to which this definition would address itself—we still come across gross instances in which the legal profession seems to have overlooked entirely the impact of domestic violence on the lives of the most vulnerable in our society—women, yes, but also children.

It is appalling that there is clear evidence from Women's Aid of very recent instances of the making of contact orders, and even of residence orders, in favour of men who have perpetrated the most appalling acts of domestic violence, who have been convicted of offences against children and who are schedule 1 offenders, from whom children should be protected. It is vital that we adopt the new clause; it seems incongruous that the Government, apparently, are not yet prepared to take this issue on.

To their credit, with the Adoption and Children Act 2002, the Government extended the definition of significant harm to be taken into account when assessing the situations in which children live to include the experience of witnessing domestic violence. They are prepared to extend definitions in that area of the law, so I do not see why they should not be prepared to take on this issue. We have a good Bill, but introducing the definitions would make a good Bill significantly better.

David Heath (Liberal Democrat, Somerton and Frome)

I support the amendments and new clauses. I congratulate the hon. Member for Chesham and Amersham on amendment No. 14, which has enabled us to debate perhaps the most crucial issue in the Bill at the beginning, rather than at the end. When possible, that always seems a better procedure.

New clause 3 is identical to the amendment tabled in another place by my noble Friends Baroness Thomas of Walliswood and Lord McNally. That is not to claim

any special ownership, I hasten to say; they were simply persuaded by the strength of the arguments for such a definition. I am disappointed that the Government, having correctly taken the view that domestic violence is an extremely serious matter that needs to be given a priority that it does not always enjoy, are resisting defining what they seek to prevent.They do so on the spurious grounds that we know domestic violence when we see it. That is self-evidently not true; as has been said, there are competing definitions of domestic violence, and it is clear that we do not know it when we see it. I reject the argument that says that simply by defining, we restrict application. It is essential to have a correct definition, and we need to bear in mind the point made by the hon. Member for Sheffield, Heeley (Ms Munn): the definition needs to be comprehensive.

It also needs to be of value in three specific areas. It has to be of value to the courts in giving clarity to the interpretation of statute; that is crucial. It needs to give clarity to enable the incidence of the crime to be measured adequately, because otherwise we will have no benchmarks against which to measure progress in deterring acts of domestic violence and assessing whether education programmes, support for families, or any other measures that the Government may wish to introduce, are successful. Thirdly, we need clarity simply so that the man and woman in the street know what domestic violence is and when it is being perpetrated, and particularly so that the victims of it know that they are the victims of a crime and that they should report it, and that proper action can be taken to defend them through the judicial system. For all those reasons, we need a comprehensive definition.

My hon. Friend the Member for Romsey (Sandra Gidley) and I have introduced a further new clause—new clause 11. It will be considered later, and I do not intend to pre-empt that discussion now. It also introduces a definition, although it does so in a different context within the Bill. We can return to that debate after we have heard what the Minister has to say today. I must say now, however, that what is workable in the New Zealand context is likely to be workable here because we are dealing with a broadly comparable jurisdiction with a broadly comparable way of doing business. That which has satisfied the legislators in New Zealand is at least worthy of careful consideration in this Committee and in the House.

It is important not to limit artificially the scope of the offence because that would allow perpetrators who should be properly dealt with to go free. However, I do not believe that this definition does that. It sensibly encompasses not only obvious areas, but less obvious areas, and ones that have on occasion been open to dispute. For instance, psychological harassment is an area that some people are still concerned about, but I think that it is a very real part of domestic abuse. May I suggest a new manifestation of that, which I do not think has been considered? When the hon. Member for Sheffield, Heeley made her intervention about those with disabilities, I thought that one of the most cruel forms of abuse is not actually to do anything to

somebody with serious disabilities but to decline to do that which is necessary for their well-being, or to make the threat of declining to do that which is necessary by saying, ''No, unless you do what I say, I will not prepare your dinner this evening, or push you in your wheelchair in the way that is necessary,'' or do a number of other things. That is a clear example of domestic abuse in a familial relationship, and yet I am not entirely convinced that it is encompassed within present legislation.

For all those reasons—and without rehearsing all the arguments that have been put—I believe that we need a definition. This is a workable definition. It has been proved to be workable from elsewhere. I hope that the Government will give it genuine consideration because, as we have heard, it has support from Members on both sides of the Committee and from a great number of people outside the House who are practitioners in this area, who know what they are talking about and who recognise the current deficiencies.

In closing, I want to refer to amendment No. 1, which the hon. Member for Chesham and Amersham did not really address. I have concerns about it. Amendment No. 1 leaves out ''does anything'' in line 8 of page 1 and inserts

''commits an act of domestic violence.''

I think that that is a limitation on the application of non-molestation orders—or, at least, it potentially is. I would much prefer the courts to have the freedom to state in a non-molestation order the behaviour that they wish to prevent. I do not want that necessarily to be limited within the strict context of domestic violence. I do not agree with the hon. Lady on that specific point and I hope that she will not press that amendment. However, I must say that I give my wholehearted, general support to the contentions contained in amendment No. 14 and new clauses 3 and 9.

Vera Baird (Labour, Redcar)

For all the reasons set out by hon. Members, it is clear that a clear definition of domestic violence is urgent. I will say little more on that, except to add my support to that need. It is clearly important to be able to name and to recognise domestic violence, because we are taking deliberate steps to outlaw it. We must know what we are outlawing and, as has already been said, so must the public. It is also critical that the definition should be wide enough to put into the public domain a recognition of the breadth of abuse that amounts to domestic violence. As Women's Aid's briefings say, that is still frequently misunderstood and there are still arguments that, ''It cannot be so bad because the woman in question does not leave'' and that, ''If she has not got a black eye, it is not domestic violence.'' It is very important that violence is understood in the context of someone who is living at home with their abuser and who has immense emotional and, no doubt, practical and familial ties to that person. Everything needs to be clearly set out in the definition.

It is also important that there should be a common definition. A huge problem has arisen because there is a multiplicity of definitions. The Home Office has one,

as do the police and the Crown Prosecution Service. Those definitions are not the same. How can it be possible to collect data and to monitor the prevalence of such violence, or even how the Bill's impact is curbing it, if we do not have a definition so that we all know what we are talking about?

The joint inspectors of the CPS and the police made a recent report about domestic violence. They made the point that although they are working together to consider the way that domestic violence is investigated and prosecuted, the two agencies that they are investigating do not have the same definition of it. Therefore, while the two sets of inspectorates are working together, they are working on different definitions. Clearly, that is pretty silly.

David Heath (Liberal Democrat, Somerton and Frome)

I do not want to spring anything on the hon. and learned Lady. However, did she see the comments that were made in another place about the Court of Appeal's decision regarding Lomas v. Parle? That was considered to be relevant to the matter that we are discussing. I do not know whether she is familiar with that case but if she is, does it, as was suggested, reinforce the view that we need a common definition?

Vera Baird (Labour, Redcar)

I am grateful to the hon. Gentleman for that prompt. I have read the debate in the other place but I have not looked up the case report of Lomas v. Parle as I had intended to do. I will do that. However, judging by what Lord Campbell of Alloway and others who support him are saying, it appears that the Court of Appeal has suggested that a definition is urgent.

One must congratulate Women's Aid, not only on getting lots of support for this definition but on consulting over a substantial period to work out the right kind of definition. I think that it meets all the things that Committee members have said are important in a definition. My guess is that the Minister does not disagree that it is important to have one and that the only question that he would raise is whether there is a problem about putting it into statute. I do not know whether there is one, and he will no doubt set that out.

I will turn, as the hon. Member for Somerton and Frome (Mr. Heath) did, to amendment No. 1, which was tabled by Tory members of the Committee. Frankly, I do not know how much it can be relied upon, because it may just be a device to ensure that the debate comes at the front of our considerations. If that is the case, it is a sensible device. However, there are problems with it. Clause 1(1) simply states:

''A person who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence.''

The amendment would remove ''does anything'' and would include

''commits an act of domestic violence.''

There is the problem that the hon. Gentleman has just mentioned; the amendment narrows the impact of making a non-molestation order a criminal offence. Non-molestation orders come about because a judge

hears evidence of what the culprit has been doing which has led to the application and then determines what that person is likely to do again and what they should be banned from doing.

Those orders can have a lot of breadth, and it is important to allow them to have maximum breadth. We do not want that adjudication of what has been going on and what should be stopped to be able to be breached with impunity. If an extra layer of definition is added requiring that whatever the person has done comes into the ambit of domestic violence, that will have a narrowing effect. For instance, although the current definition of domestic violence is good—I am being critical not of the definition but of the amendment—it would be hard pressed to include some commonplace things. An individual might not phone his partner himself to harass her, but he might get someone else to do it, such as his brother or workmate or another member of his family. That is probably not an act of domestic violence in the terms of this definition, but if the injunction were against him doing anything to harass her either by himself or through his servants or agents, which is usual, getting the brother, workmate or family member to phone would be a breach, and that would be right. That is an example of how including the requirement that there is an act of domestic violence to justify the offence of breach would have a narrowing effect.

I have another objection to the amendment. If one changes the phrase to ''A person who without reasonable excuse commits an act of domestic violence'', one envisages what I do not want to be envisaged publicly at all, which is that there can be a reasonable excuse for domestic violence. There may be a reasonable excuse for a breach of a non-molestation order. If the order states that the subject of the order must not telephone or get anyone else to do so, and he arranges for another person to phone because, for instance, he has heard that a child has been injured at school, that would be a breach of the non-molestation order, but it would be a very technical one and it would be understandable, so he would have a reasonable excuse.

However, if one once makes a definition of what is a breach and an act of domestic violence and then allows someone to have a reasonable excuse for committing an act of domestic violence, that will fundamentally undermine what we are intending to take a stand on in this Bill, which is to make it absolutely clear that domestic violence is wholly unacceptable in any circumstances. The amendment would embroil courts; men would say, ''Well, I thumped her because she taunted me,'' or ''I thumped her because she nagged me'' or give some other reason that is a reasonable excuse.

I am not sure how keen the hon. Member for Chesham and Amersham is on the amendment, or whether it is just a device. However, if she is keen on it, I hope that she will be persuaded to withdraw it after hearing what has been said.

Dominic Grieve (Conservative, Beaconsfield)

I listened with care and interest to what the hon. and learned Lady had to say. Without wishing to reopen old wounds, it seems to me that she has been

able to make an important contribution to the debate, notwithstanding the fact that she did not move the amendment.

When I first read the amendments, I was attracted to them because I have had some anxieties about the manner in which the Government have proceeded. They have, in a sense, taken a short cut by simply criminalising breach of non-molestation orders. That is certainly one simple way to approach the problem, but it raises a number of difficult issues, in particular because the scope of a non-molestation order extends way beyond what a person in the street would regard as domestic violence. It covers behaviour that needs to be stopped, but which should be seen in the context of the break-up of relationships.

I can draw on my experience of practising in the courts. My pupil master said to me when I first went round the courts with him, ''You've got to understand, Dominic, that while a relationship is breaking up one of the parties is usually very close to a state of insanity.'' My subsequent experience of such cases has persuaded me that that assertion was largely correct. There are huge amounts of emotion involved on one or both sides, and irrationality is one of the hallmarks of such situations. Non-molestation orders exist to curb and restrain that type of behaviour, even when the judge can see that, given a proper cooling-off period, sanity will be restored. On the other hand, those who breach the orders have to be dealt with. However, there are often differences of nature and quality; the orders cover a wide range of potential behaviour, ranging from violence, which any person would regard as completely unacceptable, to behaviour that, although unacceptable, tends to have a pretty pathetic origin but still requires curbing.

The Government have taken a short cut, an easy approach. I do not criticise that. The alternative is proposed in the amendments, which attempt to achieve an all-encompassing definition of domestic violence that goes beyond violence, covering, for example, psychological violence. If violence is normally defined as the application of physical force against another person, the definition clearly goes way outside it. I think that ''violence'' may be the wrong word in that context; ''abuse'' might be better.

I do not know which of the two approaches is best. I am conscious of having so gone far down the road of the Government's approach—simply criminalising the breach of non-molestation orders—that at this stage it might be difficult to convert the Bill into something wholly different. As the hon. and learned Member for Redcar rightly highlighted, and as has also been highlighted in the perfectly justified critique of amendment No. 1, once we start saying that there is a separate thing called domestic violence or domestic abuse, we face the problem of, for instance, imposing blanket penalties—as clause 1 would—that do not distinguish between the different sorts of behaviour. I shall listen carefully to what the Minister says. I fear that it may be too late in the day to try to bring about the reversal sought by the hon. and learned Lady, which the amendments raise for discussion. I will be

interested to hear from the Minister about the New Zealand experience and whether it has proved workable in the common law context.

Those are the reasons for tabling the amendments. I am sorry that the hon. and learned Lady is so angered that they were tabled by the Opposition: they were tabled simply so that the Committee could have a general discussion on a subject that we were approaching in a completely non-confrontational manner.

Vera Baird (Labour, Redcar)

I do not know whether the hon. Gentleman deliberately misunderstands me. I have no quarrel with him. I want to make clear that the issue is less to do with ownership than with the preference of those who have worked enormously hard and who see the amendments as their best shot to get what they want into the Bill. Their tactical preference was that the amendments come from the Government side. That is the issue, not ownership. I hope that that is clear.

Dominic Grieve (Conservative, Beaconsfield)

I can speak only for myself. I have had no approach whatsoever from anybody indicating disapproval of the fact that the official Opposition tabled the amendments. If I had, or if the hon. and learned Lady had approached me to say that she was displeased, I would have discussed that with my hon. Friend the Member for Chesham and Amersham. My hon. Friend has told the Committee that she received no such approach, and I hope that the hon. and learned Lady accepts that. I did not go into my office this morning, so it is possible that an e-mail that I have not seen is waiting on my desk. However, I hope that she accepts the assurances given by Conservative Members that no communication has been brought to our notice saying that those who originally proposed the amendments for consideration did not desire us to table them. The amendments were tabled last week, and although other people could have added their names or we could have withdrawn them, they were there long before any such communication could have been received.

Vera Baird (Labour, Redcar)

The awareness that the amendments had been tabled came from my private meeting with the Minister last Wednesday or Thursday, when the blue version was published. That was when Southall Black Sisters realised that the Conservatives had tabled the amendments, and they responded as I have described. At that time, the representative of Women's Aid, who also attended the meeting, realised that that was so and responded as I have described. The hon. Member for Chesham and Amersham has conceded that she had a phone call from the Mayor of London. That is the third representative organisation that hoped that the amendments would be tabled by a Government Member. Those organisations are confident that they made their intentions clear. I understand that the hon. Member for Beaconsfield has had no connection with those groups, so I do not include him in my comments. The hon. Member for Chesham and Amersham has made it clear to me that they did not make their intentions clear—that is really what she is saying—and I can do no other than accept

that. I would not have intervened had she not turned the phrase and suggested that she was presenting the amendments on behalf of Women's Aid, even though that was not that organisation's position. I understood that she knew that Women's Aid that that was not their position. As I have said—I close on this point because I appreciate this is an intervention—the amendments are the organisations' best shot to achieve things for which they have campaigned for a long time, and it should have been left to them to decide the tactical way to put them forward.

Dominic Grieve (Conservative, Beaconsfield)

I hear what the hon. and learned Lady says, but she will be aware, because we have served on many Bill Committees together, that large numbers of amendments are sent to hon. Members for consideration—usually with an accompanying request that they be considered. I remember seeing the amendments, because they were communicated to me. I was therefore under the impression that hon. Members were being asked to consider them. The way to bring proposed amendments before a Committee is to table them, which we did.

Julie Morgan (Labour, Cardiff North)

I, too, congratulate you on your elevation, Dame Marion.

I rise to express my support for the inclusion of a definition of domestic violence and congratulate Women's Aid on all the work that it has done and pm its briefings. The proposal has the support of Welsh Women's Aid, which also feels strongly that there should be definition. Many hon. Members have said that there has been a big change of attitude among the professionals—in Cardiff, the attitudes of the police have been transformed—but there is still a long way to go among the public. That was brought home to me personally by a discussion with a group of young women in south Wales, during which I was shocked to hear what they felt it was acceptable to put up with. We need a clear definition of domestic violence so that the public is aware of what is and is not acceptable behaviour. I urge the Government during the passage of the Bill to find some way to include such a definition.

Paul Goggins (Labour, Wythenshawe and Sale East)

As hon. Members have already indicated, the amendments would insert into Family Law Act 1996 definitions of domestic violence and domestic relationship—

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Will the Minister give way?

Paul Goggins (Labour, Wythenshawe and Sale East)

Perhaps the hon. Lady will allow me to finish my first sentence, which ends: and apply those definitions to the making of non-molestation orders and the criminalisation of their breach.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I should like the Minister to confirm that it does not matter whose name appears first above any amendment, that he will be even-handed and will not give preference to amendments tabled by Government Members over those tabled by Opposition Members, that his responses are based on his view of the Bill, and that the fact that the

amendments stand in my name will make no difference to his response. I seek that assurance on behalf all the organisations that have put in so much work.

Paul Goggins (Labour, Wythenshawe and Sale East)

I was just about to comment on some unexpected tensions that arose in our discussions this morning. The hon. Member for Chesham and Amersham paid tribute to outside organisations: she mentioned Women's Aid and said that 200 other organisations are associated with the concerns that it had raised. It is not for me to comment on who tables amendments; my job is to concentrate on the arguments and on why the Government might not wish to accept the amendments. However, it is important that amendments are tabled and that we have the opportunity to debate the issues. I look forward to other amendments that will be tabled, some by my hon. Friend and others by Opposition Members. I give the Committee the assurance that I will always respond to the substance of amendments and that I will always acknowledge the important contribution that outside organisations make to our debates. They do so based on huge experience. Members of Parliament, not only members of this Committee, have long-standing relationships with many of them that bear fruit in many ways, not least in terms of legislation. I pay tribute to all hon. Friends and Opposition Members who have formed those relationships and who bring the fruits to bear in our discussions. I hope that that is a sufficient response.

There is no dispute about the need for an adequate working definition of domestic violence. There is more openness about the issue now. My hon. Friend the Member for Lancaster and Wyre (Mr. Dawson) acknowledged the greater openness and the increased recognition of domestic violence and its dreadful impact on individuals and on families. On Second Reading and elsewhere the Government have acknowledged concerns about the different definitions of domestic violence that are applied by different agencies. The Government have been working towards a single definition under the guidance of the ministerial group on domestic violence. The hon. Member for Chesham and Amersham read into the record a definition that the Home Office uses. Other agencies use other definitions, and it is important that we strive for one. We believe that we have almost reached the point of adopting a single, practical definition of domestic violence—one that is used by the Association of Chief Police Officers. It might be helpful if I read out that definition of domestic violence as

''Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality.''

We arrived at that working definition as a result of our consultations on ''Safety and Justice''. All the key agencies were involved in consultation about that definition. We are moving towards the kind of practical definition that we all want.

Sally Keeble (Labour, Northampton North)

I gather that the amendment will not be accepted. Will my hon. Friend say whether the guidance issued under

the Bill to local authorities and other agencies that are involved in dealing with domestic violence will tell them to look at the definition that he has given, which the police formulated, and advise on how to implement it? In that way, the definition that he has provided might have some practical effect, even if the Government will not accept its being in the Bill. If he cannot give a detailed explanation now, will he do so in writing?

Paul Goggins (Labour, Wythenshawe and Sale East)

My hon. Friend's suggestion that I write to Committee members with the definition of domestic violence that I have just put on the record and with a detailed outline of how we intend to roll out the definition in practice is a good one. There will be new guidance. There will be a whole series of documents that convey that practical definition to the organisations to which she referred so that it can be shared across the country.

Sally Keeble (Labour, Northampton North)

I am not sure whether it will be the Home Office or the Office of the Deputy Prime Minister that issues the guidance. However, if people are to be accepted as victims of domestic violence, it is crucial that what has happened to them is recognised as such by the local authorities involved in providing housing and advice services. The authorities therefore need a full definition. Victims of domestic violence, whether they come from gay or unmarried couples, must be provided with support, assistance and rehousing, and be regarded as homeless under homelessness legislation. I suspect that is my hon. Friend's intention, and what everybody on this Committee wants to happen.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am not in a position to comment specifically on any interplay with homelessness legislation, but I accept my hon. Friend's point about the need for all Government departments to share a common definition, and then to get that definition out to the organisations that relate to each department. The ODPM relates to local government, the Department of Health to primary care trusts and hospital trusts, the Home Office to the police, and so on. The work of my noble Friend Baroness Scotland, who chairs the ministerial group on domestic violence, is engaged in precisely that task. I will respond in more detail on the assurances my hon. Friend seeks on both the definition and the process of rolling out use of the definition across the country.

Geoffrey Clifton-Brown (Conservative, Cotswold)

My hon. Friend the Member for Chesham and Amersham and the hon. Member for Northampton, North (Ms Keeble) have talked about the importance of all the agencies in the domestic violence field understanding precisely what they are dealing with. Although we have not reached that part of the Bill, will the Minister consider adopting the definition that he has just given, which seems admirable, in respect of the code in part 3 for victims of violence?

Paul Goggins (Labour, Wythenshawe and Sale East)

I will consider adopting the definition, but I do not want to give the hon. Gentleman too much encouragement, for the reasons I shall give now connected with the difficulties of adopting such a definition in statute.

Geoffrey Clifton-Brown (Conservative, Cotswold)

The point of my mentioning the code is that it has to be consulted upon; it can therefore be altered, and then it has to be laid before Parliament in a statutory instrument. The code is not as set in concrete as primary legislation is, so it seems an ideal part of the Bill to use that definition.

Paul Goggins (Labour, Wythenshawe and Sale East)

That is why I said I would consider it. I will give the issue generous and serious consideration to see whether adopting that definition is possible, but I do not want to offer false hope—I must have an opportunity to look at the matter in slightly more detail.

As I made clear on Second Reading, our concern is that if we attempt to define what we believe constitutes domestic violence, however brilliantly we may feel we have done so, it will be difficult to arrive at a tight definition that none the less encompasses the breadth of what domestic violence might be. It is also difficult to keep definitions up to date; they need to be revised from time to time. We do not want to create a loophole on the face of the Bill through which people can escape. We want to ensure that all the groups involved receive the support and action on their behalf that they merit.

The amendments are also unnecessary in the context of the Family Law Act 1996, as that legislation does not use the term ''domestic violence''.

Dominic Grieve (Conservative, Beaconsfield)

The term ''domestic violence'' does not exist, except as bandied about by politicians. That is the nub of the issue, and why I accepted from the outset that the Government had taken a perfectly pragmatic short-cut approach to dealing with domestic violence by making breach of a non-molestation order a criminal offence. Will the Minister accept that there is an alternative approach, which is to define ''domestic violence'' and then to set about trying to stop it by imposing single or varying penalties for it?

Paul Goggins (Labour, Wythenshawe and Sale East)

Different approaches could be taken. I am trying to explain why we have taken the line that we have. At present two conditions apply: first, that parties must be associated, according to the definitions in section 62 of the 1996 Act, and secondly, that there must be evidence of molestation. Case law—other hon. Members will have studied that more than I have had the opportunity to do—indicates that a wide range of behaviours may be classified as molestation for that purpose. For example, in the 1973 case of Vaughan v. Vaughan, molestation is defined as ''pester''. In the 1979 case of Davis v. Johnson, it is defined as conduct that does not amount to violent behaviour. In the 1992 case of Burnett v. George, it is classified as repeated telephoning. A broad range of conduct is therefore captured by the term ''molestation''.

David Heath (Liberal Democrat, Somerton and Frome)

I understand what Minister is saying: the flexibility of relying on case law has its attractions. Nevertheless, the vagueness of the term ''molestation'' means that it is open to a court not to accept something within the term that perhaps should be. That is the beauty of having a definition incorporated within the legislation.

Paul Goggins (Labour, Wythenshawe and Sale East)

I have already explained the drawbacks of including a definition in the legislation: it might exclude certain people. The beauty of developing case law over time is that it adds some breadth to the definition of molestation, which in the end can add protection for vulnerable people, which is what we seek to provide.

Making eligibility for an order further dependent on establishing some history of domestic violence as defined in the amendments would risk reducing the availability of orders to those who need protection. For similar reasons, it is possible that amendment No. 1 would reduce the protection offered to victims of domestic violence by the proposal in clause 1 to criminalise the breach of non-molestation orders. The terms of non-molestation orders can be wide ranging, as I have just indicated. Under section 42 of the 1996 Act they may refer to molestation in general, to particular acts of molestation, or to both. Clause 1 makes the breach of anything prohibited by the order a criminal offence so as to offer the maximum protection to victims and underline the seriousness of the order. To change that to cover only breaches that are acts of domestic violence as defined in new clause 3 would limit that protection. It would also leave the police uncertain about whether a breach had been committed, because they would have to make a judgment on whether the breach was as a result of an act of domestic violence, whereas under clause 1 as currently drafted any breach would be an offence.

Although it has not been specifically mentioned this morning, some outside the House have voiced concern that criminalising breaches of non-molestation orders might affect the standard of proof to be applied in the making of the order. I want to make it clear that in criminalising the breach of non-molestation orders it is not the Government's intention to affect the law in respect of the making of such orders, in particular the standard of proof required for the courts to grant orders.

Amendment No. 14 would introduce a new power for the courts to make any order in family proceedings if the respondent has been or is likely to be responsible for an act of domestic violence as defined by new clause 3. Section 42(2)(a) and (b) of the Family Law Act already gives the court wide-ranging powers to make orders in family proceedings even though no application has been made. While I acknowledge the intention of the hon. Member for Chesham and Amersham, the addition of amendment No. 14 would add nothing to the courts' existing powers.

New clause 9 seeks to define a domestic relationship. Section 63(1) of the 1996 Act already lists the associated persons who are entitled to apply for orders under that Act. The new clause may conflict with it. Seeking to define relationships may serve only to

create a more complex legal framework that is unlikely to benefit the victim. The current law is clear and concise about the categories of person covered by the Act and we believe that it works.

Finally, the hon. Member for Chesham and Amersham referred to a conference taking place this morning. I had a private word with my hon. Friend the Member for Keighley. I only know what anyone would know from media reports about it, but I shall look into the details and if there are issues relevant to our deliberations, I shall make them known to other members of the Committee.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I thank the Minister for responding to the group of amendments as he did. There is no dispute that recognition of domestic violence is needed. The group of amendments was tabled as a device to bring the issue to the forefront and to enable us to have this debate, because many organisations feel that a definition is necessary. I know that the Minister is aware of that, as we have held meetings together with outside organisations.

I am pleased to hear that the ministerial group is nearing a conclusion, and I am grateful to the Minister for reading out the definition that ACPO uses, and to hear that he will consider putting that definition into the code in response to the comments made by my hon. Friend the Member for Cotswold. I hope that the hon. Gentleman will let us know his thinking on that subject and tell us what guidance may be necessary.

Domestic violence takes many forms. What might at first appear to be an act of great kindness or of reconciliation, such as leaving flowers on the doorstep, might in fact be a threat, whereby the perpetrator of the violence is saying to the victim, ''I am watching you.'' I appreciate that a broad swathe of behaviours has to be taken into consideration.

I hope that the organisations that have been pressing the need for a domestic violence definition in statute will have heard what the Minister said, because there is some concern that such a definition could reduce the protection that is currently afforded by restricting the concept of molestation.

Geoffrey Clifton-Brown (Conservative, Cotswold)

Does my hon. Friend not think that one of the defences that the Minister used against putting that definition in the code, namely, that a particular offence might be omitted, is in fact reduced if the definition is put in the code? The code is just that—a code; it can easily be altered by statutory instrument to accord with custom and practice. If a series of omissions leads to people who have committed offences getting off, the definition in the code could easily be altered. Therefore, the code—rather than the Bill—is an ideal place to put it.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

My hon. Friend's points stand on their own. The Minister has heard them, and I expect that he will return to them at a later stage and tell the Committee what he thinks.

I have had assurances, and I have now heard that there is a working definition that people will be able to look at. I look forward to reading that definition in full, as opposed to just hearing it across the Floor of

the Committee, and to learning the response of the organisations that have raised this matter—or allowed us to raise it in the Committee. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 2, in clause 1, page 2, line 1, leave out 'existence' and insert 'terms'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss the following amendments: No. 78, in clause 1, page 2, line 1, leave out 'existence' and insert 'content'.

No. 26, in schedule 7, page 41, leave out lines 14 to 16 and insert—

'''(4A) A court considering whether to make an occupation order shall also consider whether to exercise the power conferred by subsection (2)(b) and, whenever violence has been used or threatened, or where there is a risk of significant harm to the applicant or any relevant child, must use the power conferred by subsection (2)(b) to make a non-molestation order.''.'.

No. 17, in schedule 7, page 41, line 14, leave out from 'shall' to end of line 16 and insert

'use the power conferred by subsection (2)(b) to make a non-molestation order, whenever violence has been used or threatened, or where there is a risk of significant harm to the applicant or any relevant child'.

Dominic Grieve (Conservative, Beaconsfield)

The amendments are about, first, the question of what level of proof will be required to criminalise the breach of a non-molestation order. I will take as my starting point the comment that the Minister rightly made in reply to the earlier debate, that non-molestation orders may be general or they may be very particular. They may impose a blanket prohibition on the molestation of another party, or they may lay down specific rules about what a person may or may not do. The other feature is that they may be granted as an emergency ex parte or they may be granted inter partes with the person present in court when the order is made. The Minister will correct me if I am wrong, but as I understand it, there has been no attempt to distinguish between those two sorts of orders in proposed new section 42A.

I do not disagree with the Government's intention, which is to provide a mechanism to prevent domestic violence and the sometimes appalling behaviour that may be attendant upon it, even if it does not amount to physical violence, by criminalising it—by saying that if a person breaches the terms of an order he can not only be brought back before the judge for sanction or, under certain conditions in the past, there can be power of arrest and he can be brought back before the judge, but he can be immediately arrested by the police, taken to the police station, and charged then and there with the offence of breach of an earlier order, such that he might never appear again in front of the judge who granted the original order. I am not completely clear about how the mechanisms would work in practice. The person might be kept in custody and subsequently dealt with before the magistrates and sentenced to a period of imprisonment, or he might be tried on indictment at the Crown court. I would be interested to hear from the Minister about the relationship between those proceedings.

In the circumstances, we as a Committee must remember that even those who transgress have rights. That very important principle is well enshrined in our law. Even villains have rights, although sometimes those rights may be removed. Therefore, I have an anxiety about how the measure will work in practice. Let me state a case simply for the purpose of argument. If a person against whom a non-molestation injunction has been granted in quite defined terms—perhaps ex parte; that would be surprising, but it is possible—breaches the injunction knowing that there is an order but believing that what he is doing remains acceptable, is it possible that that person would not be brought back before the judge to explain himself, as would have happened in the past, but would end up on a criminal charge? On that basis, as I read the Bill, he would have no defence. Persuasive mitigation might be offered after conviction as to the circumstances in which he came to breach the order; nevertheless, he would be saddled with a criminal conviction.

As I said, I am slightly anxious about the interplay between the different forces of law and order that will be involved in the process, for example, between the judge in the case—at present, a civil judge who handles the entire matter and can take a view in the round as to whether the breach is technical—and the police, who may for perfectly legitimate reasons of their own decide that they want to come down heavily on an individual and pass the papers up to the Crown Prosecution Service, which might say that a clear breach has occurred and that prosecution should follow. The results of trivial matters could leave people—at the end of a period of marital breakdown, for instance—saddled with an undeserved criminal conviction. Equally, however, I am perfectly alive to the fact that many breaches of non-molestation orders are horrific and flagrant violations of court orders and involve appalling behaviour. I feel wholly comfortable with the idea that persons committing such offences should be prosecuted and, if convicted, sent to prison, arguably for a considerable period. We shall come later to the length of sentences.

The first two amendments relate to whether the words ''existence of the order'' on their own are enough, or whether we should use some other definition. Two obvious alternatives are ''terms of the order'' or ''content of the order.'' I shall be interested in the Minister's response to that. I am aware that it will be suggested that the amendments could dilute the impact of orders and create a further hurdle for the prosecution in proving a case; that would be a problem. I am not seeking to provide loopholes by which undeserving defendants should get off. However, as we know so well from other discussions in Committee, one of the problems with the law is that if one moves in one direction, there are often difficulties waiting at the other end. I foresee such difficulties, which is why I would be particularly interested if the Minister can provide some background explanation of how he envisages the provision working in practice.

For instance, what criteria apply in a case of a person who breaches an order to determine whether he goes back before the judge in the civil jurisdiction, which is clearly contemplated, or is prosecuted? Will there be guidelines on which sort of case should be handled in a particular way, or will there be a free-for all, in which the decision is left largely to the discretion of the police? The reality is that if a person breaches an order, or is believed to have breached an order, which is seen to be a criminal offence, those most likely to intervene immediately are the police. They will be telephoned and told, ''The order is being breached''. They will turn up in their car and, if the person is lurking around the property when he was not supposed to be within 250 yards of it, arrest him. Once that process starts, it seems unlikely that the civil courts will be seized of that matter again or the judge able to look at what has happened.

I see that as a potential problem and I tabled the amendments to enable the Committee to have a discussion. They are probing amendments, but I believe that there is a real issue here about practicality. As the Minister rightly said, non-molestation orders are not necessarily cast in general terms.

Vera Baird (Labour, Redcar)

Is the hon. Gentleman clear—I thought that I was and I still think I am, but I am asking him anyway—that there is no exclusion of the power to bring an offender back to the county court instead of taking him to the criminal court? I have received a briefing, which the hon. Gentleman may have received, from a district judge who fears that the proposals in the Bill exclude that power. He fears that when there is an arrest, the case can only go down a criminal route, whereas now it would go into the civil court. Is it the hon. Gentleman's understanding that both routes will be available once the Bill is passed, or that the one that works now will have gone completely?

Dominic Grieve (Conservative, Beaconsfield)

That raises a subject that has troubled me. It seemed to me when I read the text that there was no exclusion. On the other hand, in practical terms, if somebody breaches an order and the police turn up and arrest him, why should there be any reason for the matter to come back before the judge in the civil jurisdiction? After all, the person who is likely to take it back before the judge in the civil jurisdiction is the victim. If the person who is alleged to have breached the order is in police custody and the police are charging him that evening and bringing him before the magistrates the following morning, why should there be any necessity to return? Could the defenders want to go back before the judge for clarification of the order? At that point the situation is very muddled, but I do not see that happening. The practical impact of the provision is that, in nine cases out of 10, once a civil judge has made an order, no case of breach will come back before his court. There may be exceptions—the hon. and learned Lady may be able to think of some. One might be able to envisage some in theory, but in practice I doubt that they will occur. That is why I

assume that the district judge to whom she was speaking took the view that in reality the civil court's jurisdiction would go, but that is not how I read the text.

Vera Baird (Labour, Redcar)

I respectfully agree with the hon. Gentleman. I do not believe that there is an ouster either, and probably the district judge was talking about practicalities. I am much more worried about the proposition if the civil route is not left, because I am aware of women who do not want to criminalise their partner but want the trouble to stop none the less, so they prefer to go back to the county court. I hope that we are both right and that both routes remain open.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the hon. and learned Lady, because that is an important point. It brings me back to my earlier point, the unfortunate fact that in domestic violence situations there may be horrible people with a propensity for violence and a record of harassment and physical and emotional abuse against a partner. Equally, in many cases non-molestation orders are given because two perfectly decent people have fallen out in their personal relationships and one—sometimes both—is behaving in an irrational manner. The court has to intervene to protect them from themselves and to prevent them doing something that they will later regret. As the hon. and learned Lady said, in those circumstances a decision by one partner not to want the other to be criminalised is legitimate and reasonable, if it is not taken out of fear, for example. That is something we must have regard to. The partner could say, ''I'm quite happy to go back to court under the civil proceedings, but I refuse to co-operate with the police in respect of the breach of the order.'' On the other hand, that may not help. If the police have turned up and seen a technical breach with their own eyes, they will not need the evidence or co-operation of a partner. That is a legitimate intention behind the Bill—to ensure that orders are not breached. I see a difficult area that the Committee needs to consider.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. and learned Member for Redcar has put her finger on precisely the difficulty. The purpose of the legislation is surely to usurp the victim's discretion as to whether the civil or the criminal route is the appropriate one in the circumstances, and to put the decision in the state's hands. There are laudable reasons why that might sometimes be the right way of doing it, but one cannot disguise the fact that that is what is being done.

Dominic Grieve (Conservative, Beaconsfield)

I agree with the hon. Gentleman but will not labour the point now. Other Committee members might want to participate and I will be interested to hear the Minister's response.

I tabled the other two amendments in the group, but find myself almost compelled to argue against them, even though they are worthy of consideration. They would, in effect, make a non-molestation order automatically linked to an ouster injunction. If one ousted, one would have a non-molestation order. Some argue that that is important, because

molestation often accompanies the breach of an ouster injunction. I cannot escape the difficulty—other Committee members might be able to—that while the use of ouster injunctions is often justified, they are frequently used as a weapon, quite unjustifiably, in the context of the break-up of a relationship, as the first step in a scene of open warfare. If a non-molestation order is the automatic consequence of the ouster injunction, it will be a more powerful weapon, because no further independent consideration would be given to the issue. While I understand the motives of those who proposed the amendments, which I was happy to put to the Committee, I listened to the Minister's response and those of other hon. Members and I see serious flaws in the proposals as they stand at present.

David Heath (Liberal Democrat, Somerton and Frome)

I am pleased that the hon. Gentleman couched his remarks as he did, because I share his reservations, although I see the value in tabling the amendments. The latter two were proposed by my noble Friends in another place and were argued vigorously there. I also accept much of the reply of the Minister in another place; I understand the points made in rebuttal. However, it is worth our having this debate in this Committee, because there are genuine concerns about the parallel civil and criminal court jurisdiction in the area that we are discussing.

Some would argue much more strongly than I intend to today that the proposal to criminalise breach of an order will not serve a useful purpose, because there is already capacity in the civil court process to address the problem. Indeed, it might have perverse effect of making it more difficult to deal properly with such cases, in part because the criminal process is almost inevitably a slower and more ponderous one than civil court redress. Although I understand those concerns, I also understand why the Minister is tabling his proposals. I am not arguing against them; I am simply accepting that there is a genuine argument among those who want to see the most effective remedy for domestic violence and for breaches of non-molestation orders, and those who believe that there is a perfectly proper argument that criminalisation is not the right way to go about it.

11 am

A further issue, which I mentioned during an intervention on the hon. and learned Member for Redcar, is the Lomas v. Parle judgment, which draws attention to the inadequacies that already exist in the interplay between the court systems in this important area. This Bill has the potential, at least, to make those worse.

I do not want to repeat arguments already made by the hon. Member for Beaconsfield. I am slightly more dubious than he sounded about amendment No. 2. The idea that somebody was aware of the existence of an order, but did not know what it said is almost an invitation for an argument; the difficulties of proving that would be very substantial.

Will the Minister reinforce what his noble Friend Baroness Scotland of Asthal said on the twin approach in another place? She said:

''Nothing in the proposals seeks to expunge the role of the civil court through the county court. Nothing in them would limit or prohibit a person going through the civil route, if they were minded so to do.''—[Official Report, House of Lords, 19 January 2004; Vol. 656, c. GC236.]

Vera Baird (Labour, Redcar)

Was the noble Lady referring to ousting the civil route completely? Was she talking about the position of somebody being arrested and still having the civil route available, or about the position of a person attacked after an injunction has been obtained still having the ability to use the civil route by applying to the court the following morning for an arrest warrant? Is the hon. Gentleman clear about which she means?

David Heath (Liberal Democrat, Somerton and Frome)

I am not clear, but I hope that the Minister is. I address the hon. and learned Lady's intervention to the Minister; clarity in this area is important. Although I hear the words saying that both routes are still available, I see the reality as being that the civil process has effectively been trumped by the criminal process, which by its nature is slower and more difficult. That may put victims and perpetrators in difficulty, because there may be unwillingness on the part of both parties to see the action in question criminalised. As I say, that discretion has been taken away and put, in effect, into the hands of the prosecuting authorities. I see arguments as to why that would be absolutely right on occasions. I hope that the Minister will help on that issue.

It is not appropriate to speak to a new clause that has not been selected, and I do not intend to do so, but I hope that I can simply refer to new clause 17, on the register of orders. It is entirely relevant. Unless the police officer knows what orders are extant, he cannot take appropriate action. When that was explored in the context of these amendments in another place, it was suggested that each police force needed to maintain a register of orders made by the courts that was accessible to a constable, so that he or she could take appropriate action.

I was interested in the Minister's reply, because it suggested that it was intended that there should be a national register. Perhaps he can tell us what progress he has made on a national register, how it will be implemented, whose responsibility it will be and what is its scope, because all that is important to our understanding of how the orders are effectively to be brought before a criminal court.

These are important issues about the responsibilities, which do not compete, but overlap, in two areas of jurisdiction in the criminal and the civil courts. I am not wedded to the amendments, unlike the hon. Member for Beaconsfield who tabled them. It was for that reason that we did not proceed with the amendments that we tabled at an early stage of proceedings in another place. Clarity is essential to proper understanding.

Again, returning to my previous intervention, the conclusion from the judgment in Lomas v. Parle was that there was a need for an integrated court proceeding. This measure is not the legislative vehicle that could bring about that change, but is that in the Government's thoughts? Does the Minister believe

that we will, in future, have single port of call for the people involved, where proper redress can be obtained by either route before a single hearing? If that were possible, would it commend itself to Ministers? If it were not, how would he respond to the trenchant criticisms made of the current process by the judge in Lomas v. Parle?

Vera Baird (Labour, Redcar)

I shall not advocate amendments Nos. 26 and 27, to which the hon. Member for Beaconsfield has already referred, even though they might have seemed like a good idea at the time. I address my brief remarks to amendments Nos. 2 and 78, which would make the person's knowing about the existence of the order insufficient for the breach to be made a crime, and which would make it criminal for him to breach the order only if he knew of its terms. I argue against that and suggest that the fact that he knows of its existence must be sufficient.

There is the issue of ex parte around orders granted without someone being there to make his case. I will make the mistake of always saying ''her and him'', but much of it is about her and him, although there is domestic violence the other way. I hope that people will forgive me if I make that mistake. On an order obtained without notice, he will, none the less, be required under the terms of clause 1 to know that it existed, so it is not possible for him to commit the crime of breaking an order that he does not know exists. That is enough, for the following reasons.

People avoid service of domestic violence injunctions as often as they can, whenever they can and in whatever way they can. That is a hallmark. If someone knew that an order existed, but avoided service so that he did not know what had been outlawed, it would be inappropriate to allow that kind of conduct and give him a reasonable excuse for not breaking it. In a nutshell, if he knows of the order's existence, but does not know the terms, whose fault is that? If I knew that an order had been made against me in a county court, and I had any intention of complying with it, I would telephone and find out what it said, so that I would not breach it through error. The only way that people can decline to do that is if they do not have the slightest intention of observing its terms and are looking for a way out. Consequently, the amendments are a mistake.

There is also the tail-piece argument, which says that the order is capable of clouding the power of arrest if an officer says, ''You're under arrest because you're banging on the windows'', and the man is able to say, ''Well, I did not know that the order said that I could not do that, because I did not know its terms''. That would cloud the position for the constable. The point of the measure is surely to make it appropriate, right and almost automatic for the constable to arrest the person. There should not be scope for the opposite argument. I oppose amendments Nos. 2 and 78.

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall concentrate most of my remarks on amendments Nos. 2 and 78, as hon. Members have argued effectively against the other two amendments.

The Government's intention in framing clause 1 was to avoid one of the problems identified by many of those who responded to the ''Safety and Justice'' document on domestic violence: that respondents to without-notice orders often go to great lengths to avoid the service of that order so as to avoid compliance with it. Orders must be served in person, and by refusing to open the door to the person serving the notice, respondents can continue to harass the applicant, while all the time claiming truthfully that they have not been served with the order. That makes a mockery of such court orders, and we are taking action to deal with it.

The hon. Member for Beaconsfield and my hon. and learned Friend the Member for Redcar discussed ex parte orders. In those cases, as my hon. and learned Friend said, one has to know about the existence of the order. An important aspect of ex parte orders is that a person will not be prosecuted for breaching an order when they do not know the order has been made. There is also the reasonable excuse defence, if someone is unable to find out about the terms of the order for some very good reason, such as disability, blindness or illiteracy. It remains the case that, as with all ex parte orders, the hearings must be held as soon as possible.

The issue that concentrated most members' minds was the balance between the civil and the criminal routes. I am happy to respond positively to the hon. Member for Somerton and Frome. As the Committee would expect, I stand foursquare with my noble Friend Baroness Scotland in that regard. Clearly one cannot be tried for the same offence in both courts, but we are certainly not trying to trump the civil route with the criminal route; both will remain open, for good reasons. My hon. and learned Friend commented in an intervention that the person protected by the order can have some degree of choice, dependent upon the circumstances she faces. It is also correct that, if the CPS and the police decide not to pursue a particular action by the criminal route, it would still be open to the person protected by the order to pursue the matter by the civil route.

Dominic Grieve (Conservative, Beaconsfield)

Will the victim, be it he or she, have that choice in reality? I assume the police will consult the victim, but is not one of the intended purposes to enable the police to take action themselves? Does this not raise the question of the guidelines and how they operate, and whether there will be CPS guidelines on the inter-relationship between civil and criminal proceedings? If there are to be such guidelines, and there probably ought to be, that is something the Minister might like to look into.

Paul Goggins (Labour, Wythenshawe and Sale East)

Great care will be taken to ensure that the person protected by the order is properly consulted and supported by all the agencies involved. It may well be that in most cases a decision is made to pursue the criminal route, with the full support of the person protected and the agencies concerned. I only make the

point that if for any reason the police and CPS decide not to pursue that, it is still open for the person protected to go down the civil route.

Sally Keeble (Labour, Northampton North)

I assume that the guidelines will be clear about the lengths to which the authorities have to go to ensure that a perpetrator knows about an ex parte order. I can imagine that some of the people who engage in that kind of activity do not sit around at home waiting for people to knock on their door, and might try to evade justice by claiming that they were not there, or that they had moved. Will it be absolutely clear to the authorities what steps they will have to take?

Paul Goggins (Labour, Wythenshawe and Sale East)

I assure my hon. Friend that the guidance will make that clear. I gave the most obvious example one might think of, somebody not opening the door, but I accept that others will be more sophisticated, and we will need to deal with different types of behaviour, to ensure that kind of non-compliance cannot be used as an excuse by the perpetrator.

David Heath (Liberal Democrat, Somerton and Frome)

On the question of the twin court approach, I understand entirely that where the CPS or the police do not intend to take criminal proceedings, the victim has recourse to the civil courts. What I am not clear about is whether, in circumstances in which the CPS or the police intend to take criminal proceedings, the victim still has recourse to the civil courts. In normal circumstances, those proceedings would take place before criminal proceedings and would therefore pre-empt the action of the prosecution authorities, in which case we are back to square one: people can use the civil route to coerce others into avoiding criminal proceedings.

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall reflect in a little more detail on the hon. Gentleman's remarks. The purpose of the provision is to empower the person who has been the victim. Clearly, that needs to be done in a spirit of collaboration with the agencies concerned. In leaving both routes open, we hope to give greater choice to the person who is protected. It may be that the agencies wish to pursue the criminal route and there are good reasons why the person being protected does not wish that to happen. The person being protected ought to be listened to during the deliberations and considerations. What matters is that there is protection and choice for the person concerned, because part of helping them to recover from the victimisation and abuse to which they have been subjected involves giving them greater power and control.

The hon. Gentleman raised a point about whether we were moving towards an integrated court arrangement. We are looking to see how we can combine the two courts to hear both civil and criminal aspects of domestic violence. Indeed, a working group has already been established with the support of the president of the family division. We are taking care,

but we are certainly moving in that direction. Again, that is intended to help simplify matters and support the victim.

On the hon. Gentleman's question about the register of civil orders, we can do that in a non-statutory way; we do not need legislation. The most likely option is the police national computer. The Home Office is working on a practical solution to ensure that that can happen. We certainly intend to make progress in that area.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

On the serving of the order, obviously we have moved on from people shutting the door in the face of the server, and other methods of serving orders can be used. There has been some discussion recently about whether e-mails and text messages would satisfy the requirements of serving an order. Has the Minister any further and better particulars on that?

Paul Goggins (Labour, Wythenshawe and Sale East)

I have not, but I shall make some inquiries, because clearly those are modern systems of communication and could be used. The key thing is always acknowledging the receipt of the information. We have already had some discussion about e-mails this morning, which may or may not be pertinent to this discussion. I shall certainly take a closer look at the matter.

Vera Baird (Labour, Redcar)

I am probably being very stupid about the dual route issue, but I wonder whether it could be clarified. In fact, there is a triple route, and I want to ensure that all three routes survive. First, there is the current position: someone can go to the county court and get a non-molestation order backed by a power of arrest. That is route A. If the person concerned is arrested, he is taken to the county court the following morning. Route B is that, irrespective of whether there is a power of arrest on the original order, the person is arrested under clause 1 for the criminal offence of breaking the order and is then taken to the magistrates court at some point in the future. Route C is when the person being protected has a non-molestation order, but it does not have a power of arrest attached to it, so on the following day she has to go to the county court and issue a warrant for the other person's arrest. I am sure that that route will survive. What I am interested in knowing is whether we are absolutely clear that routes A and B will survive. Both those routes make an immediate arrest available, although the person would logically go to two different courts in the two scenarios.

Paul Goggins (Labour, Wythenshawe and Sale East)

I confirm to my hon. and learned Friend, whom I have never found to be stupid in her assessments and remarks, that she is right about options A and B, but not about option C. The twin-track approach that we are adopting will use options A and B.

I will not labour my points on amendments Nos. 17 and 26. As I said, others have commented. I simply say that our proposal is that, if the court is considering an occupation order, we will—through this legislation—ensure that it also considers the making of a non-molestation order. The amendments would mean that, if the court was considering an occupation order, it

must make a non-molestation order, but only in the most serious cases. Clearly that would constrain the powers of the court. We do not wish to do that, but wish to give the court flexibility to take the appropriate action in all circumstances. We believe that the amendments would fetter them unnecessarily.

Dominic Grieve (Conservative, Beaconsfield)

This has been an interesting debate. While I appreciate the theory of the maintenance of the twin-track approach, I cannot help but think that, in reality, civil jurisdiction and enforcement is largely going to disappear.

Consider the example of a non-molestation order with a power of arrest attached. It is breached and the police arrive. They take the individual concerned, be it he or she, to the police station. It is true that they could bring that person before the country court the following morning. On the other hand, they could charge that person then and there and bring them before the magistrates court the following morning.

Something in my mind suggests that, once a criminal sanction exists, it is more likely to be used than a civil sanction, especially when placed in the hands of a criminal law enforcement authority. I just want the Government to think about the issue, because I have the feeling that, in reality, the civil jurisdiction route is going to die. Indeed, one of the unintended consequences may be that far fewer non-molestation orders have powers of arrest attached to them, because it will not be necessary any more.

So, I would have thought that, over time, the power of arrest attached to a non-molestation order is going to vanish. It is simply going to be a non-molestation order, and breaching that is a police matter. The county court will disappear from the picture

completely. As I said earlier, I have anxieties about that because the county court tries to take, to use a word much abused in the House—I try to refrain from using it, but for once I cannot think of a better word—an holistic approach to family matters. It tries to square circles and smooth difficulties, rather than visiting penal sanctions on individuals.

That is desirable, because of the context in which family jurisdiction so often has to be invoked. One of the consequences of the changes will be that we move towards a much more mechanistic system and that, once the order has been made, that is it and the individual is in a criminal jurisdiction. I may be wrong, but I think that that is something that the Government should think about.

I do not think that there is necessarily an easy solution, unless the Government decide, through the mechanism of the CPS, to publish guidelines to try to identify which category of case ought to go to the magistrates court and which ought to return to the judge. Of course, there is a risk attached to that, which is that going down that road may undermine one of the purposes of the legislation.

I accept the criticisms that have been made by the Minister and others on the first two amendments in the group. It remains the case that my personal experience is that it is astonishing how often one has to repeat to people what an order is before they understand it. How often have I sat in court and listened to the judge covering the same ground again and again, saying, ''This means X'', yet, two weeks later, the person has still failed to understand?

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee E

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

Joe Benton (Labour, Bootle)

I remind the Committee that with this we are discussing the following amendments: No. 78, in page 2, line 1, leave out 'existence' and insert 'content'.

No. 26, in schedule 7, page 41, leave out lines 14 to 16 and insert—

'''(4A) A court considering whether to make an occupation order shall also consider whether to exercise the power conferred by subsection (2)(b) and, whenever violence has been used or threatened, or where there is a risk of significant harm to the applicant or any relevant child, must use the power conferred by subsection (2)(b) to make a non-molestation order.''.'.

No. 17, in schedule 7, page 41, line 14, leave out from 'shall' to end of line 16 and insert

'use the power conferred by subsection (2)(b) to make a non-molestation order, whenever violence has been used or threatened, or where there is a risk of significant harm to the applicant or any relevant child'.

Dominic Grieve (Conservative, Beaconsfield)

Welcome to the Chair, Mr. Benton, and to the proceedings of this Committee. They were most enjoyable this morning and will, I hope, continue to be so this afternoon.

I was making a point this morning about the relationship between the civil and criminal proceedings and how the Bill would affect those. After I sat down, the Minister kindly indicated that a comment that he had made earlier in response to the hon. and learned Member for Redcar (Vera Baird) had potentially given a misleading impression as to what elements of the civil procedure would survive in future.

If I understand this important matter correctly, we will be invited by the Government to amend schedule 7 to delete entirely the power of arrest in civil proceedings, as it is considered no longer to be necessary because there is a general power of arrest associated with the breach of the non-molestation order. At the risk of taking slightly more time in responding to that than necessary—the Minister may wish to intervene, or we may wish to deal with the

matter at a later stage—let me say that it highlights the extent to which the civil procedure is disappearing down the plughole of history.

Let us consider that for one moment. If no power of arrest is attached to a non-molestation order and the person breaches it, the only avenue for revisiting the matter must be for the case to go to the magistrates court. As far as I can see, in those circumstances there will not even be a power for the police physically to take a person from detention at a police station back to the county court, although I suppose that if the victim were to issue a summons in the county court and serve it on the police when the person was in police custody, the police might be under an obligation—as they are in any other civil proceedings—to produce the prisoner at the county court, but not because of the breach of any order.

If I have understood correctly, and we are going to delete the power of civil arrest, perhaps the Minister will explain, either now or on clause stand part, how there will ever be a power to produce someone coercively at the county court thereafter for the breach of an order. I do not think that there will be such a power. It will be finished. The hon. and learned Member for Redcar suggested that civil proceedings for contempt would henceforth be a dead letter.

I hope that the Government have thought that through, because if that is the consequence, as the hon. and learned Lady said, circumstances that might better be visited by contempt proceedings will inevitably have to be dealt with through the criminal justice system. That would cause me some anxiety. I can see the logic of the Government's getting rid of the power of arrest in contempt proceedings and attaching the non-molestation order, but that must mean that the civil judge's jurisdiction ends with the order and thereafter he will never be seized of the matter again, except insofar as it relates to other domestic proceedings for which he may have responsibility.

I do not intend to press these matters any further. However, I will think about them, because I am concerned that the full implications of the measure for the civil jurisdiction of the county court and the civil courts generally have not been addressed entirely. If the civil judge has no power to order the arrest and subsequent production of a defendant appearing before him for contempt, contempt proceedings must effectively be at end. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move amendment No. 79, in page 2, line 9, leave out '5 years' and insert '1 year'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss amendment No. 80, in page 2, line 11, leave out '12 months' and insert '6 months'.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I, too, welcome you to the Chair, Mr. Benton. I hope that we shall be as easy—and as good-humoured—a Committee as you have ever chaired, after this morning.

Making breaches of non-molestation orders punishable by a maximum five-year sentence makes all breaches arrestable, irrespective of whether a judge may have thought that the circumstances required there to be a power of arrest, but not all organisations believe in that. One of the organisations that I have talked to is Liberty, which is concerned about some of the ongoing moves that blur the distinction between civil and criminal law. Given that a non-molestation order is issued on the basis of a civil burden of proof, Liberty feels that it is inappropriate for a criminal sanction to apply for a breach. However, if feels that if such an offence is to be created, the proposed maximum sentence in the Bill is disproportionate and that no offence should be deemed to have been committed if the person was unaware of the terms of the order.

These simple probing amendments would have the effect of reducing the maximum custodial sentence to 12 months on indictment and six months on summary conviction, and of ensuring that individuals who were aware of the existence of the order but not of its terms would not be subject to prosecution. They give us a device whereby we can look at why the Government have decided on five years and 12 months. I look forward to the Minister's explanation.

Paul Goggins (Labour, Wythenshawe and Sale East)

Like the hon. Member for Chesham and Amersham (Mrs. Gillan), I welcome you to the Committee and our deliberations, Mr. Benton. The Opposition clearly wish to hear our reasoning for these offences, which I shall set out.

Amendments Nos. 79 and 80 would reduce the maximum penalties for the criminal offence of breach of a non-molestation order as set out in clause 1. Amendment No. 79 would reduce the maximum penalty for conviction on indictment from five years' imprisonment to one year while amendment No. 80 would reduce the maximum penalty on summary conviction from 12 months to six.

The Government believe that the proposed maximum sentences in the Bill are the right ones and that the five-year maximum penalty for conviction on indictment sends a strong and clear message to domestic violence offenders that the courts will treat breaches of orders seriously. As well as reflecting the seriousness of domestic violence, the fact that the maximum penalty will be five years also means that under the terms of section 24(1)(b) of the Police and Criminal Evidence Act 1984 the offence is one where the police can arrest for breach without the need for an arrest warrant. We have taken that step in response to the concerns raised in the consultation exercise on the ''Safety and Justice'' domestic violence consultation paper.

Many respondents to that paper pointed out that there is considerable confusion on the enforcement of non-molestation orders where the police's power to arrest can sometimes be unclear. Under the Family Law Act 1996 the court can attach a power of arrest to some, all or no parts of the order and the police can

arrest without a warrant only for those parts that have a power of arrest attached, otherwise a warrant needs to be issued by the courts. That can clearly lead to problems at the scene of an alleged breach of an order where it can be unclear what the police's arrest powers are.

Our proposal in clause 1 removes that uncertainty by ensuring that the police can always arrest for breach without the need for a warrant: a considerable improvement in the protection for domestic violence victims. While I am sure that it is not the intention of those who have tabled the amendment, if it were accepted it would leave the police with less power to protect victims. I hope that the hon. Lady is reassured by the Government's thinking and that she will withdraw the amendment.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I thank the Minister for that reply, and I agree with most of what he said. These amendments were tabled because it is right that all organisations should have their voices heard in this Committee, and because I felt that the Minister should have a chance to put on the record the explanations for these terms, which will provide victims of domestic violence with a great deal of comfort and more protection than they have had in the past.

Dominic Grieve (Conservative, Beaconsfield)

It seems to me that the Minister has made a powerful case, as it requires the five-year sentence to make the offence arrestable. However, I have a residual anxiety—which I know my hon. Friend might share—about how the police will in practice establish criteria as to how to proceed. It would be a dangerous procedure if there were a substantive offence such as a serious assault and the police were just to proceed for the breach and not for the actual offence, but that is a matter that should be dealt with by ordinary prosecuting guidelines.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I share my hon. Friend's concern. This should not be seen as an alternative to pursuing the criminal offence itself. However, in light of my remarks and the fact that the Minister has given consideration to these two terms in the Bill, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Paul Goggins (Labour, Wythenshawe and Sale East)

I would not normally address the Committee at this stage, but in view of some comments that I made this morning I feel that it might be appropriate if I did so. My hon. and learned Friend the Member for Redcar gave me a choice of one from three and I managed to get it wrong. If I set the record straight that might help her and other Committee members.

First, I will recap. Victims will still go to the civil courts to seek a non-molestation order. However, clause 1 makes any breach of a non-molestation order an arrestable criminal offence to be dealt with by the criminal courts, and therefore there is no longer the power or the need for the courts to attach a power of arrest.

I was asked what action could be taken in relation to the breach with regard to the person who is protected by the order. Broadly speaking, there are two options. First, the police could be called and, because of the maximum five-year imprisonment on conviction, the police will automatically have the power of arrest for any breach of the terms of a non-molestation order. That will overcome one of the major difficulties, which is that the police are not certain what their powers of arrest are. The decision on whether to prosecute for the breach will be for the police and the Crown Prosecution Service—always, of course, in consultation with the victim herself. If the decision is not to prosecute for a criminal offence, the victim can still pursue an action through the civil court and breach remains contempt with the same penalties available as now.

The second option is to pursue the civil route. The victim may decide that they do not want to involve the police at all. In those circumstances, the victim will still be able to apply to the civil court for a warrant of arrest if the molestation order is breached, and to have the perpetrator arrested and brought back to the county court for the judge to decide what should happen.

Dominic Grieve (Conservative, Beaconsfield)

I might be interrupting the Minister prematurely, but is there not a danger with this? The person who sees a molestation order being breached will want something to be done about it, and the obvious thing to do is to call the police, but, under this system, what happens after they have called the police? I accept the Minister's point that the police may consult with the victim about what they want done, but once they have done that, a process that appears to lead inexorably to prosecution is cranked up. We may end up with a situation where victims are less ready to call the police than they were under non-molestation orders with a power of arrest precisely because they fear the consequences of doing so in terms of the person who is breaching the order.

Paul Goggins (Labour, Wythenshawe and Sale East)

That is why the civil route must remain open. The hon. Gentleman has hinted several times that there might be a rebalancing between civil and criminal in the system. That is entirely in keeping with the spirit of this legislation, which is to empower and protect the victim on the one hand while also sending out a very clear message that Parliament—and the country—regards with increasing seriousness crimes associated with domestic violence and intends the penalties to be heavy and the protection to be stronger. There may be some rebalancing, and that would be entirely right.

My hon. and learned Friend the Member for Redcar asked whether another method of enforcement—route A in her summary of the three options—would remain open, where the county court attaches a power of arrest to all or part of a non-molestation order, which means that the police can arrest for breach without a warrant and bring the perpetrator back to the county court to be dealt with by the judge. As breach of an order will always be an arrestable offence, under clause 1, the Bill removes that method of enforcement. If it were retained, it would put the police in a difficult

position because they would be unsure whether the perpetrator should be taken to the county court after arrest or charged and brought to the magistrates court. Option A, rather than option C, is the one that goes. I hope that helps to clarify the position.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill.

Clause 2 - Additional considerations if parties are cohabitants or former cohabitants

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move amendment No. 29, in page 2, line 22, leave out subsection 2 and insert—

'(2) In Part 4 of the Family Law Act 1996 leave out subsections 35(10), 36(10), 37(5), and 38(6) and replace each of these subsections with

''( ) an order under this section may, in so far as it has continuing effect, be made for a specified period, until the occurrence of a specified event or until further order.''.'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following:

New clause 1—Removal of anomalies in relation to cohabitants—

'Part 4 of the Family Law Act 1996 is amended as follows.

(1) Leave out section 41

(2) For section 35(10) substitute—

''An order under this section may, in so far as it has continuing effect, be made for a specified period, until the occurence of a specified event or until further order''.

(3) For section 36(10) substitute—

''An order under this section may, in so far as it has continuing effect, be made for a specified period, until the occurence of a specified event or until further order''.

(4) For section 37(5) substitute—

''An order under this section may, in so far as it has continuing effect, be made for a specified period, until the occurence of a specified event or until further order''.'.

(5) For section 38(6) substitute—

''An order under this section may, in so far as it has continuing effect, be made for a specified period until the occurence of a specified event or until further order;''.'.

New clause 12—Duration of occupation orders—

'(1) In Part 4 of the Family Law Act 1996 (c.27) (family homes and domestic violence), for section 35(10) (one former spouse with no existing right to occupy) substitute—

''(10) An order under this section shall be limited so as to have effect for a specified period of six months, but may be extended on two occasions for a further period of six months unless an application is made to discharge the order.''

(2) For section 36(10) (one cohabitant or former cohabitant with no existing right to occupy) substitute—

''(10) An order under this section shall be limited so as to have effect for a specified period of six months, but may be extended on two occasions for a further period of six months unless an application is made to discharge the order.''

(3) For section 37(5) (neither spouse entitled to occupy) substitute—

''(5) An order under this section shall be limited so as to have effect for a specified period of six months, but may be extended on two occasions for a further period of six months unless an application is made to discharge the order.''

(4) For section 38(6) (neither cohabitant or former cohabitant entitled to occupy) substitute—

''(6) An order under this section shall be limited so as to have effect for a specified period of six months, but may be extended on two occasions for a further period of six months unless an application is made to discharge the order.''

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Clause 2 repeals section 41 of the Family Law Act 1996, which provides that where the court has to consider the nature of the parties' relationships, it must have regard to the fact they have not given each other the commitment involved in marriage. The clause also amends section 36 of that Act, which permits the court to make an occupation order in favour of the cohabitant or former cohabitant with no existing right to occupy the property.

The amendment would provide for the court to consider the commitment when looking at the overall relationship. It would remove the differences in rights to protection for occupation orders available to cohabitants who are not entitled, and will still leave the courts with their full discretion. It was suggested by Women's Aid and I am sure that members of the Committee will support it.

Women's Aid welcomes clause 2(1), the repealing of section 41, but clause 2(2) as drafted will require courts to consider the commitment in a relationship when considering whether to issue an occupation order to a current or former cohabitant with no existing right to occupy. In the other place, Baroness Scotland stated:

''It was not our intention to include long-term platonic friends or the briefest of sexual encounters''.——[Official Report, House of Lords, 19 January 2004; Vol. 656, c. GC248.]

Part IV of the Family Law Act is concerned with relationships of some standing, where the opportunity for abuse and control is greater. Other remedies exist for those not in relationships of standing, for example the Protection from Harassment Act 1997 and the general criminal law where an offence has been committed. However, Women's Aid believes that someone who is a victim of domestic violence from their cohabitee should be able to obtain an occupation order regardless of the level of commitment involved in their relationship with the abuser. Part IV of the 1996 Act already enables the courts to use their discretion, based on the assessment of a range of salient factors, including the length of the relationship and the balance-of-harm test.

In respect of the other provisions relating to cohabitants under part IV of the 1996 Act, non-molestation orders are equally available regardless of marital status and may be made for a specified period, for example, six months or until further order. However, that is not the case with occupation orders that regulate the occupation of the family home in cases of domestic violence. At present, all victims of domestic violence do not have equal access to protection because of the legal differentials regarding the nature of their relationship.

The Family Law Act 1996 distinguishes between spouses or former spouses and cohabitants or former cohabitants and parties entitled to occupy a property and those not entitled to occupy a property. It states that an occupation order should initially be for a period of a maximum of six months; for spouses a

court may extend the order on one or more occasions for a further period of not more than six months if the applicant's spouse is not entitled to occupy the property or if neither spouse is entitled to occupy the property.

For cohabitants not entitled to occupy the property, a court can extend the order only once for a further period of not more than six months. In the years since the enactment of the Family Law Act, that provision has created hardship and inequitable treatment for some non-entitled cohabitants and their families who have experienced domestic violence. For cohabitants who do not hold legal title as tenant or owner, occupation orders can be issued only for a maximum of 12 months; they last for up to six months on first application and thereafter there can be one extension of six months on further application. For example, under the present law, an abused woman who has directly contributed to, or even fully met, the costs of the family home by making rent or mortgage payments for many years cannot obtain an occupation order for more than a year simply because she is not married to the legal tenant or owner. The children of the family of such a long-standing relationship may also be deprived of access to the family home after a year if they and the non-abusing parent—the victim of domestic violence—are forced to leave it.

In the other place, Baroness Scotland stated:

''it is just for the law to reflect the difference in the relationship and the likely complexity of financial and property arrangements in the way in which it makes occupation orders''.

She noted that ''ancillary relief proceedings'' can deal with

''questions of divisions of property''.—[Official Report, House of Lords, 4 March 2004; Vol. 658, c. 861.]

However, Women's Aid believes that not only is the current law discriminatory, but it will continue to be unfair to some victims who are cohabitants and who are not entitled in this way under part IV of the 1996 Act; that includes same-sex couples. Proceedings for ancillary relief and a resolution of interest in the property for cohabitees of a long-standing relationship may take longer than one year to resolve.

As I said, the amendment removes the differences in rights to protection through occupation orders that are available to cohabitants who are not entitled and it will still leave the courts with their full discretion. The legislative limitation on the length of the occupation order is not reasonable, given that its removal would not impose any new duty on the courts. They still have complete discretion on whether to grant an order and on the length of the order, according to the facts and circumstances of the case.

As the Minister will know, Baroness Scotland of Asthal also stated in a Lords debate that:

''The court should be free to determine the length of the order, depending on the facts of the case, and providing what it considers to be the right length of protection.''—[Official Report, House of Lords, 19 January 2004; Vol. 656, c. GC222.]

The amendment supports that position. It removes the limitation that the courts are able to grant an order for a maximum of six months, which can be extended only on further application. It recognises that victims and survivors responding to the Government

commissioned consultation on ''Safety and Justice'' overwhelmingly highlighted the need for orders to be issued for at least one year, rather than for short periods, because harassment and assaults can continue after the separation for many years.

The issuing of so many short-term orders and the requirement to return to court for extensions is a waste of public resources—through legal aid. In the other place, it was stated that:

''occupation orders are meant to offer . . . short-term protection''.—[Official Report, House of Lords, 4 March 2004; Vol. 658, c. 861.]

That is not the experience of the victims of domestic violence and it does not acknowledge the problems that are faced by practitioners and by voluntary organisations that are working in domestic violence: the orders can be too short to enable the victim, or the person who needs to be protected, to set up a new life that is satisfactory for her and her children.

Occupation orders that are granted until further order or until a specific event, such as the resolution of any disputes and other proceedings regarding claims on the property for non-entitled applicants, would still allow respondents to make an application to vary the order. However, it would reduce repeat visits to court by the victim where short time-limited orders are granted and would reduce the needless waste of public resources that occur through repeated legal aid applications.

The current thrust of public policy is to encourage approaches to domestic violence that enable the victim, and any children, to stay protected in the family home and to remove the perpetrator. An amendment that widens opportunities to assist that objective without fettering the discretion of the courts on the length of orders would be preferable to the current legal limitation on the length of such orders for cohabitants. I look forward to hearing the Minister's comments.

Sandra Gidley (Liberal Democrat, Romsey)

New clause 12 is a slightly different attempt to get round the same problem. Both the measures that we are discussing are variations on what emerged in the other place. As described by the hon. Member for Chesham and Amersham, non-molestation orders are equally available regardless of marital status and may be made for a specified period or until a further order. That is not the case for occupation orders. I welcome the changes that have been made so far, which get rid of the discrimination between married couples and non-cohabiting couples, but we can still improve things a little further. The problem at the moment is that with the exception of where an applicant is entitled, the occupation orders cannot be issued to cohabitants for longer than a year. They run initially for six months, with the possibility of their being extended for up to a year.

Baroness Scotland of Asthal said in the other place that, when making an occupation order, the level of commitment involved in a relationship should be taken into account, rather than the courts being required to look at the fact that the couple had not married. She did not

''wish to plant the seed of doubt into the court's mind that the level of commitment, or lack thereof, is no longer important.''—[Official Report, House of Lords, 4 March 2004; Vol. 658, c.860.]

Although the one-night stand or the short-term relationship is relatively easy to understand, there are cases where women have been contributing to the family home and possibly paying a part, or all, of the mortgage, but have not got around to regularising the situation. Not everybody works like that. Sometimes there can be a psychological pressure on the woman, with the partner saying that that was not important and did not mean that he loved her any the less, and so on.

A number of instances are missed, because although there is an ongoing relationship, the entitlement is lacking. It would be much simpler if the courts had complete discretion over the duration of an order and could adapt it according to particular circumstances. If the Government are not minded to go head first and totally adopt those principles, our amendment would allow for an extra extension of six months, because a number of instances cannot happily be resolved in a year. If the period were extended by an extra six months, thereby giving a total of 18 months, it could be possible for more cases to be brought to a happy resolution.

I am sympathetic to the Conservative amendments and look forward to the Minister's response.

Paul Goggins (Labour, Wythenshawe and Sale East)

Let me deal first with the first part of new clause 1, which proposes the repeal of section 41 of the Family Law Act 1996. That section requires the court, when it is considering the nature of the relationship between the parties, to have regard to the fact that they have not given each other the commitment of marriage. The Government accepted arguments in the other place that section 41 was no longer relevant and should be repealed. We proposed an amendment to repeal that section and amend section 36(6)(e) of the same Act, to include a reference, which the court must consider, to the level of commitment between the parties. That amendment struck the right balance between the repeal of an unworkable section and reminding the court of the importance of the outward signs of commitment in a couple's relationship. The amendment was accepted and is now clause 2. The good news for those who are pursuing that line is that section 41 of the 1996 Act is repealed and replaced by clause 2.

The second part of new clause 1, amendment No. 29 and the whole of new clause 12 would standardise the length of occupation orders made under sections 33 and 35 to 38 of the 1996 Act, but in slightly different ways. Under new clause 1 and amendment No. 29, the court would be free to make the order for a specific period, or until a specified event or a further order. As we have heard, under new clause 12 the initial order would be for a specified period of six months, but could be extended for a further period of six months on two occasions, unless an application is made to discharge the order.

At the moment, the 1996 Act provides that, if the applicant for an occupation order is legally entitled to occupy the home or has matrimonial rights in relation

to the home, no limits should be set on the duration of an order. That applies irrespective of whether the applicant is married or cohabiting.

Most spouses are legally entitled to occupy, or have matrimonial home rights, and many cohabitants are also legally entitled to occupy. However, if the applicant is not entitled to occupy the home, or does not have matrimonial home rights, the Act provides that an occupation order should initially be made for a maximum period of six months. It then draws a distinction between spouses, or former spouses, and cohabitants, or former cohabitants. For spouses, it says that the court may extend the order on one or more occasions for a further period of not more than six months if the applicant spouse is not entitled to occupy the property, or if neither spouse is entitled to occupy the property. For cohabitants not entitled to occupy the property, it says that there may be one extension for a further period of not more than six months. The Act draws a distinction between spouses with no entitlement to occupy a property and cohabitants with no entitlement to occupy a property, to reflect the different levels of commitment involved in marriage and cohabitation. If a cohabitant is legally entitled to occupy a property, the Act makes no distinction between spouses and cohabitants in the provisions on the length of the order.

In Committee in the other place, the Government acknowledged that those two relationships can often be very similar, but they are in fact quite different in their structure and implications for property rights. Many people who do not marry wish to keep their property rights separate. That is not a reflection of the validity of the relationship, but simply of the fact that the legal relationship between a cohabiting couple can be different from that l between a married couple. It follows, as my noble Friend Baroness Scotland said, that it is just for the law to reflect the difference in relationships, and the likely complexity of financial and property arrangements, in the way in which it makes occupation orders.

New clause 1 would remove all the 1996 Act's limits on the length of occupation orders, leaving the length of the order—be it for a specific period, until a specified event or until a further order—to be determined entirely by the court. The court's powers on occupation orders are already extremely far ranging: for example, a court can regulate the occupation of the home, prohibit or restrict the occupation rights of one party, require the party to leave the home or exclude the party from a defined area around the home. Given those wide-ranging powers, I believe it is right that there should be restrictions on the court as to how long the order may last and how it may be renewed.

Members should remember that occupation orders are meant to offer what, we hope, will need to be only relatively short-term protection; they should not be used as a long-term substitute for ancillary relief proceedings, in which questions of the division of

property can be properly considered. The orders are intended as a short-term measure, not a long-term solution. In that spirit, I ask that the amendment be withdrawn.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I have listened carefully to the Minister, and I shall ask for the leave of the Committee to withdraw the amendment. However, it is a shame that an amendment that would widen opportunities and encourage approaches to enable the victim and any children to stay protected in the family home is not to be pursued. It is a shame that the Minister could not see his way to liberating the courts on the question of the length of orders. However, I will reflect on what he has said and withdraw the amendment on the basis that we may wish to revisit the issue on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 ordered to stand part of the Bill.

Clause 3 - ''Cohabitants'' in Part 4 of 1996 Act to include same-sex couples

David Heath (Liberal Democrat, Somerton and Frome)

Welcome to the Committee, Mr. Benton. I welcome the clause and have no argument with it. However, I will ask the Minister a couple of questions, because I want to be satisfied that the clause will have the effect that we hope for.

My first question is, what does the Minister consider will be the interplay between this legislation and the Civil Partnership Bill? Does he anticipate that there will be further amendment to this Bill via the avenue of the Civil Partnership Bill in order to make the relationship between the two pieces of legislation clear, or should we expect amendments to this Bill to reflect the new status that I understand is being provided in that legislation?

My second question is a genuine one, because I want to be absolutely sure in my own mind about this. Has any thought been given to whether the phrase ''in an equivalent relationship'' might present any problems of interpretation? The phrase raises this question: what precisely is the equivalent relationship to a husband and wife in terms of cohabiting couples? Is it possible for someone to attempt to argue a distinction in law between a same-sex couple and the equivalent relationship in terms of a husband and wife on the basis that it is equivalent to some other form of cohabiting relationship and not to that of a marital relationship?

That may be a point that is not worth considering, but I would hate for there to be a legal argument that could be adduced on that basis that had not been thought of at this stage, and which could be corrected by rewording part of the clause. I know what the Minister's intention is, and I share it entirely; I simply want to make sure that the words reflect it.

Paul Goggins (Labour, Wythenshawe and Sale East)

The spirit of the discussion of this clause is again one of consensus. The clause has never been contentious, and nor is it now with the questions that the hon. Gentleman has asked.

The hon. Gentleman's second question was about equivalent relationships. I will need to go away and look into that a little further, but clearly there will be distinctions between married couples, cohabiting couples and so forth, and those distinctions will need to be made clear in any legislation considered by this House. When I have looked into the matter, I will speak or write to the hon. Gentleman to try to reassure him.

On the interplay between this legislation and any legislation on civil partnerships, we will need to have coherence and compatibility, but it is not our intention to introduce any further amendments to this Bill to address that.

Question put and agreed to.

Clause 3 ordered to stand part of the Bill.

Clause 4 - Extension of Part 4 of 1996 Act to non-cohabiting couples

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move amendment No. 15, in

clause 4, page 2, line 35, leave out from 'other' to end of line.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss Amendment No. 31, in

clause 4, page 2, line 35, leave out 'significant duration' and insert

'such significance as to justify the making of an order'.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

This, too, is a probing amendment to attempt to discover the thinking behind the drafting of clause 4. In recognition of the complexities of relationships, the clause extends the use of non-molestation orders to people who have never been married or who have never even cohabited; they are extended so that they apply to homes that the parties have either lived in or intended to live in.

The clause widens the definition of associated persons through proposed new paragraph (ea), which states that

''they have or have had an intimate personal relationship with each other which is or was of significant duration''.

In seeking to probe further the nature of these relationships and the reasons for the inclusion of duration as a test, I ask the Minister to run through his definitions or examples of such relationships. Because of what was said in the other place and what is in the notes on clauses, I presume that one-night stands are ruled out. However, the notes on clauses also exclude platonic friends, while covering

''a long-standing relationship which may, or may not, be a sexual relationship'' .

I would be interested to hear how the Minister thinks that the court will make that judgment and what standard of proof will be applied, and whether it is possible to make that fine judgment between what is essentially a platonic relationship and an intimate personal relationship. The difference that he draws between the two will be interesting.

Why is duration included here at this stage, as it does not apply to other family members associated either by blood or by affinity? What in the Minister's mind will constitute significant duration as opposed to long-standing duration, for example? If the Minister's interpretation of ''significant'' could be shared with the Committee, we would all be grateful.

Sandra Gidley (Liberal Democrat, Romsey)

Amendment No. 31 is a variation because we too have concerns about the clause as drafted. The Bill uses the phrase

''which is or was of significant duration''

in respect of a personal relationship. I agree entirely with the hon. Member for Chesham and Amersham that we need a definition of the word ''significant''. Do we have to wait for case law to build up just because the Minister in the other place seems to think that one-night stands should not be covered?

It could be that any violence in such a situation is covered by other legislation, such as the law on assault or rape. However, we are talking about an in-between area. Some people have short but nevertheless very intense relationships. The problem we are facing is that if a person—it is usually a man—abuses, he does not do it in only one situation but will repeat it time and again with other partners. They are rarely one-off instances; it is part of the character.

I am concerned that there could be some sort of gentleman capable of attracting women and getting them to move in with him for short periods of time but during that time, which may not be regarded as being of significant duration, having an abusive relationship and then moving on to the next one. It is very difficult to catch up with a person in such circumstances. We would prefer the wording

''such significance as to justify the making of an order'',

because it would give the court a little flexibility to take such situations into account.

Paul Goggins (Labour, Wythenshawe and Sale East)

It is fairly clear that the Government's intention in clause 4 is to close a significant loophole in the protection afforded by the Family Law Act 1996 by including within it non-cohabiting couples. The aim was to include intimate personal relationships of significant duration. We could probably spend the rest of our 10 sittings discussing what precisely that might mean to each of us. In the Bill we define it in the broadest terms, and of course it will be for the court in individual circumstances to determine whether it applies in a particular case.

It certainly is not our intention to include long-term platonic friendships.

Sandra Gidley (Liberal Democrat, Romsey)

That is the very point that concerns some of us. We have all read judicial agreements to which we take great exception and we wonder what on earth the judge may have been thinking of. I hesitate to offend all the judiciary, but at present we are faced with a judiciary that is predominantly male, older and of a different generation, who perhaps even have a slightly different attitude towards domestic violence. I am concerned that the attitude of somebody with that background might be different from that of somebody younger, who has been brought up with the attitude

that domestic violence in any form is unacceptable. How would he address that problem? We do not want to see headlines in the Daily Mail or elsewhere questioning judgments, when there are no clear guidelines.

Paul Goggins (Labour, Wythenshawe and Sale East)

It is of course essential that the judiciary receive appropriate training in relation to specific legislation, and more generally. The hon. Lady will be clear as, I am sure, are all members of the Committee, that it is for Parliament to set out the legislative framework, and it is for the courts to interpret in specific circumstances whether a particular offence has been committed. It would be inappropriate for Parliament to try to determine in every Bill every set of circumstances in which the law might apply. That is the relationship between Parliament and the judiciary, and it will not be changed in this piece of legislation. The Government place great emphasis on training for the judiciary—it is extremely important.

It is not our intention to include either long-term platonic friendships or brief sexual encounters, such as one-night stands. The Family Law Act 1996 is concerned with relationships of some standing, in which the opportunity for abuse and control—which is at the heart of our concerns in the Bill—is at its greatest. For short or non-intimate relationships, the Protection from Harassment Act 1997 is available.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I agree entirely with the Minister that we are considering long-standing relationships. Why, then, rule out platonic relationships? They could be the very relationships to which he is referring.

Paul Goggins (Labour, Wythenshawe and Sale East)

Because we feel that both elements—intimacy and significant duration—should be considered by the courts. Both should be captured in the offence. Platonic relationships should not, therefore, be included. Intimacy and duration are the key elements.

As the clause is drafted, having determined that there was an intimate personal relationship, the court would go on to decide whether that relationship was of a significant duration. Amendment No. 31 would replace significant duration with

''such significance as to justify the making of an order''.

That would offer the court more latitude in considering the length of a relationship and might allow very short-term relationships to be covered—inappropriately, in our view. As I said, we do not want the clause to apply to couples in short-term relationships such as one-night stands. As drafted, it offers the best formulation to ensure that orders are compatible with the intention of the Family Law Act 1996.

Amendment No. 15 would remove the caveat in clause 4 that a non-cohabiting couple would have to be in a relationship of significant duration before a non-molestation order could be granted. It would allow anybody who had had an intimate relationship with another person, no matter how brief and including a

one-night stand, to seek and gain orders under the Family Law Act 1996. That would be a fundamental shift in the scope of the Act, which deals with relationships of standing, and issues of abuse and control within them. Other avenues for protection exist for those who are not in relationships of standing—for example, the Protection from Harassment Act 1997 and the general criminal law.

In the circumstances described by the hon. Member for Chesham and Amersham and others, there are other forms of legal redress. The Bill deals with domestic violence in specific circumstances, in which intimacy and the duration of the relationship are both relevant. I hope that, now that I have outlined the Government's thinking behind the clause, hon. Members will not press their amendments.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The Minister is right: we could probably use every one of the 10 sittings to consider the meanings of the terms used in clause 4. However, I maintain that restricting the scope for interpretation by including

''which is or was of significant duration''

unnecessarily fetters the courts. If, as in other parts of the Bill, the aim of the clause is to leave things to the discretion of the courts, this would have been a sensible set of guidelines for judges undergoing their specific training. However, we do not have to shut down this area completely—or change it in a way that creates a possible loophole, because somebody could say that a relationship was not of significant duration.

This was a probing amendment, and I have listened carefully to what the Minister has said. We may want to visit this matter again, but for now I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.

Clause 5 - The offence

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 37, in

clause 5, page 2, line 39, after 'dies', insert 'or is seriously harmed'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following amendments:No. 38, in

clause 5, page 3, line 5, after 'death', insert 'or serious harm'.

No. 39, in

clause 5, page 3, line 20, after 'death', insert 'or serious harm'.

No. 40, in

clause 5, page 3, line 30, after 'death', insert 'or serious harm'.

David Heath (Liberal Democrat, Somerton and Frome)

We come to a critical part of the Bill that covers the creation of a new offence to deal with the mischief of where a child has died in the care and protection of more than one person and where it is clear that one of those people has committed a very serious offence—a murder, in the case of the death of a child—and yet it is impossible to determine which of them dealt the fatal blow. That lacuna in the law has been identified for a long time; it is well documented.

This group of amendments will not greatly surprise anybody, because it has been well advertised by the National Society for the Prevention of Cruelty to Children and other organisations. It proposes to revert to part of the formulation that was encompassed by the Law Commission in its report on this subject, which went beyond the position of death to that of serious harm.

I seek to do that because very often what has occurred is a series of events that may or may not cause the death of a child but that is extremely serious in itself. It is inconceivable that we should wish to ignore circumstances in which, for instance, a child has been so badly beaten that it has suffered serious brain damage. Sadly, that is not an uncommon event. Why should that not be encompassed by these proposals? I agree that that falls short of death and of the specific offence that the Government have included in this Bill, but it is as serious. There may be no difference in intent between a case where a person beats, shakes and almost fatally injures a child, and a case in which a child dies.

It is essential at least to consider this. I was given some reassurance by Baroness Scotland in another place. She responded in a reasoned tone to the same amendments tabled there by my noble Friends. She made it plain that the Government have seriously debated this matter over some time and that there was doubt as to whether the Law Commission proposals in their entirety should have been presented or whether the provision should cover death alone.

I have mentioned children throughout my comments, but this also applies to vulnerable adults, and one of the arguments that has been adduced against these proposals is that there should not be the same arrangements for children as for vulnerable adults. I do not accept that argument for a moment. The more cogent argument, which we may hear today, is that the new offence is a matter of concern for the human rights of the accused. That is a legitimate argument, which has to be weighed extremely carefully. I am given some reassurance by those in the other place who have considered the matter purely on the basis of the human rights implications, and have considered that the balance should come down in favour of the new offence. My noble Friend, Lord Lester of Herne Hill, is a very satisfactory guide on what is appropriate.

Dominic Grieve (Conservative, Beaconsfield)

I am mindful of the view in the other place about the new offence, although it is noteworthy that the other place was not in a position to consider new clause 18; I hesitate to raise that matter now, but it is relevant. In my view, and the hon. Gentleman may agree, new clause 18 impinges substantially on the question of rights and the propriety of the way in which a trial procedure takes place, and has a direct bearing on the amendment, which would extend the clause to include serious harm.

David Heath (Liberal Democrat, Somerton and Frome)

I accept what the hon. Gentleman says, but we should have that argument at a different point in the proceedings.

At the moment, I am attempting to argue that, although I accept that the proposed new offence would have serious human rights implications, I do not believe that they would be different in the cases of murder and serious harm; exactly the same arguments would apply. Therefore, if the Committee and the House felt at the end of the day that it would be appropriate to have the offence in its present form, there would be no additional argument on human rights grounds as to why the offence should not include serious harm. The argument that to extend the range of offences is somehow to extend the potential for a restriction on human rights is wrong. It is an absolute: either the proposed procedure would disregard human rights or it would not.

The other argument is that ''serious harm'' is too vague a phrase, and too open to construction by the courts. I am not sure that I accept that argument, although I understand the point. I would have no great difficulty in accepting the Government's position if they said that they would home in on a more restrictive interpretation of ''serious harm''—grievous bodily harm is defined, I believe, in the Offences Against the Person Act 1861? Such a position would be perfectly arguable, but justice for the child or the vulnerable person requires that we identify ways of dealing with those who commit the offences but will not own up to them.

The Government lay great store on the idea that this will act as an incentive—the mere fact of the penalty will encourage one or other of the accused to come forward with evidence. That is a serious point, and I hope that the penalty will work in that way. If it does, it will work as effectively for cases of serious harm as for cases in which there is suspicion of murder, manslaughter or unlawful death.

There is a perfectly sound argument for accepting the evidence that the Law Commission so assiduously collected before making its proposals. It has argued its case very carefully, and as I have said, I was impressed by the quality of its argument. It has done a good job of assessing the rights and wrongs of the case.

I am not convinced by the Government's apparent view that one must test the offence in the most serious case—of course, murder is the most serious case—before being able to apply it in any other case. The distinction in the case of serious harm, or the unlawful killing of a child or vulnerable person, is one of extent, not intent.

I shall listen carefully to the Minister's reply. I understand that the Department's view is not closed and that it is open to discussion; indeed, discussions have been going on. Perhaps, therefore, he can explain the Government's position. Are any of the points that have been adduced still under consideration? Is it possible, even at this late stage, to extend the provisions and finish the job? If so, we can resolve an issue that the Law Commission went such a long way towards addressing in its very good report.

Meg Munn (Labour/Co-operative, Sheffield, Heeley)

I want to raise the issue of vulnerable adults and to hear the Minister's view about it. As I said this morning, I chair the all-party Voice group, which raises issues relating to learning disabled adults. I have had considerable discussions with Voice UK and Values into Action—another organisation that promotes the rights of learning disabled adults—and they both agree that it would be useful to have an offence covering serious harm. They welcome the offence in the Bill as a way of tackling domestic violence against vulnerable adults, which they believe has not been properly dealt with—perhaps for the same reasons why all domestic violence is under-reported. It is important for us to consider therefore whether it would be possible also to have an offence of serious harm.

I have had some correspondence with Richard Crompton, from the police. Although he has responded in a personal capacity, he has been involved with the Association of Chief Police Officers in considering issues relating to vulnerable adults in the context of this Bill and the Mental Incapacity Bill, which the House will consider later. His personal view, from his vantage point in the police service, is that it would be beneficial to have an offence covering the ill-treatment and neglect of vulnerable adults. He believes that that would help the police to know how to respond to specific situations, particularly those in which vulnerable adults have been cared for either by those with a statutory responsibility or in a family setting. He believes that it would be appropriate to consider the issue in the context of this Bill because it is not purely about those who lack capacity. I look forward to the Minister's comments.

Dominic Grieve (Conservative, Beaconsfield)

I listened with great care to the speech by the hon. Member for Somerton and Frome (Mr. Heath), and there is a logic to what he says. If we are criminalising causing death in cases where someone dies as a result of the offence in clause 5, why not extend the offence to include serious bodily harm? The point is often made at the Bar that murder is grievous bodily harm with a corpse. My difficulty with that view, and I do not have a settled view on the matter, is that we should also be mindful of the novel nature of the offence that we are creating under the clause. This may be an opportunity to touch briefly on it, although it will also impinge on the other amendments that we will consider.

The origin of the clause was the concern that had been expressed about the impossibility of securing a conviction in cases involving the apparent murder of a child in which it became abundantly clear that only one of two, or possibly three people—a restricted number—could have committed the offence. Whether or not they blamed each other, it was impossible to tell which of the two had done it. The public concern that individuals were getting off was the starting point of the legislation. That concern was absolutely warranted.

I do not criticise those who drafted the Bill, but it was not drafted to deal with a conviction in circumstances in which two people blame each other and it is impossible to tell which of them has

committed murder or grievous bodily harm. What the Bill has done is to create an offence of negligence, which is different in quality from manslaughter. Indeed, if one must try to find a sort of derivative, it belongs more to health and safety legislation than to anything else, because the nub of the offence is the failure

''to take such steps as he could reasonably have been expected to take to protect''

the victim from the known risk.

In a sense, we are taking an offence from health and safety law, creating an offence of negligence, and punishing the perpetrator with 14 years' imprisonment. One need only consider the draconian penalty that attaches to the offence to see that this is a novel area of criminalisation. I therefore understand the Government's reluctance to extend it to anything beyond the very worst case, which is a death, and their possible wish to wait and see how the offence works out in practice, including the way in which it is tried, the penalties that may be imposed on those convicted, and any challenges that may be made following the operation of this legislation.

As I told the hon. Member for Somerton and Frome earlier, I do not believe that his amendment can be considered in isolation. We should take care to consider the totality of the consequences of the clause. I do not seek to anticipate my own amendments, but we need to consider whom the offence bites and the extent to which the Government intend it to have an impact on other charges that may be brought against an individual, as is shown in new clause 18, before I can decide whether the amendment is right. I look forward to hearing the Minister's view about the extension. As I said at the outset, there is undoubted logic to what the hon. Gentleman says, but I am anxious because it appears that the offence could extend much further than the circumstances in which a person would have been charged with murder, but a conviction cannot be secured because one cannot say which of two people did it.

The offence could apply across a very wide spectrum of circumstances in which a person has a responsibility of care for a child. We need to be cautious, so I reserve my position and look forward the Minister's response to this very pertinent amendment.

Paul Goggins (Labour, Wythenshawe and Sale East)

As this is the first group of amendments on the clause, it is important to say at the outset that I welcome the broad cross-party consensus on the attempt to deal with circumstances that have proved difficult—those in which it is known that one or other person has committed the act leading to a death, but it has not been possible to identify which one. That issue has gripped politicians, lawyers and campaigners for years, and the clause is an attempt to redress the injustice. We shall debate various issues related to the clause, but I appreciate that there is broad welcome for it.

The amendments introduce for debate the question whether the offence should be extended to cover not only those events leading to death but those leading to serious harm. The question has been widely discussed in the other place and we have been given the thoughts

of the Law Commission as well as weighty evidence from organisations such as the NSPCC, which, in its report, ''Which of you did it?'' states:

''Each week three infants suffer serious injury or death when in the care of adults who should be protecting them.''

While I do not accept the amendments and will be asking the hon. Member for Somerton and Frome not to press them, I do not underestimate the need to increase and improve the protection that we offer to children, who should be looked after properly by those responsible for them. The statistic takes no account of the vulnerable adults that my hon. Friend the Member for Sheffield, Heeley (Ms Munn) referred to, and for whom she campaigned so vigorously as the chair of the all-party Voice group.

That group does great work in bringing the issues to the fore, but I ask my hon. Friend to accept that, at this stage at least—I am sure there will be other opportunities to debate the issue—there is not a direct read-across from children to vulnerable adults. There are differences and we need to tease them out.

There are four reasons for the Government's conclusion, after careful consideration of the matter, that the offence should cover events leading to death but not serious injury. The first is that there are other ways of capturing criminal behaviour of that kind. We have all experienced the frustration that arises when it is not possible to convict people despite its being known that the actions of one or more of them have contributed to a death. However, there are other forms of legal redress. When a child is hurt the offence of child neglect can be pursued. The offence of grievous bodily harm, which the hon. Member for Somerton and Frome referred to, is also available. It is not as if there is no redress.

Secondly, there are clear differences—specifically in relation to determining which one of the accused committed the offence—between a situation in which someone has died and one in which the victim survives. That is not least because the surviving victim may be able to give evidence in any prosecution case that is brought; clearly that is not possible where the victim is deceased.

Meg Munn (Labour/Co-operative, Sheffield, Heeley)

I apologise for interrupting my hon. Friend in mid-point. Does he agree that in cases involving small children and vulnerable adults who may have communication difficulties the ability to give evidence is a matter of concern? In their cases his argument does not hold sway, and that is why the organisations concerned suggest that we should consider the amendments.

Paul Goggins (Labour, Wythenshawe and Sale East)

We are doing more, and need to do yet more, to ensure that vulnerable witnesses and very young children in court are helped in every way possible so that the experience is as palatable and productive as possible. I assure my hon. Friend that that will continue. I have explained two of my reasons for not wanting to accept the amendments, and will come to the others; none of them would be sufficient alone, but the four of them together give the argument the weight that has led us to our conclusion. However, I shall think carefully about my hon. Friend's point.

The third point concerns definition. The hon. Member for Somerton and Frome raised that himself. If it were the only issue that arose, we could perhaps debate it further to ascertain whether there was sufficient common ground between us, but as I have said, it is one of four. We would be faced with a debate about what injuries constitute serious harm. At present, a broken nose can be dealt with as grievous bodily harm, but would probably not be treated as serious harm. We would have to debate further, as we would be in the problem area that we talked about this morning—that when we define something, we automatically create a loophole. There are real difficulties with definition.

Fourthly, as the hon. Member for Beaconsfield (Mr. Grieve) said, the new offence is, in some respects, novel and carries a severe penalty. Confining the offence to cases in which someone has died fits with the special status of death in the law. It is that special status that helps to justify the new offence and some of the associated procedural measures, which we will discuss later.

The new offence bestows on household members who are aware of the risk a responsibility to take such steps as are reasonable and necessary to prevent someone from coming to harm. Again, related provisions will ensure that murder or manslaughter charges are not dismissed at the end of the prosecution case because it is not possible to be sure who committed the offence. Those novel changes are, to some extent, groundbreaking, and can be justified only where there has been a death.

There is also the issue of the penalty for this offence, which is a maximum of 14 years' imprisonment. That is a serious penalty, which we may need to revise if we were to extend the offence to include serious harm, but we want to keep that stiff and tough penalty for incidents in which someone's life has been lost.

Geoffrey Clifton-Brown (Conservative, Cotswold)

I am concerned about this offence, because I wonder whether the courts will convict under this measure using the very high ''beyond all reasonable doubt'' test, and whether they will impose penalties of the same length as would be applicable to murder. I also wonder whether prosecuting authorities will use this offence as a cop-out instead of prosecuting for murder and having to go through the more rigorous procedure of obtaining a murder conviction. I would hate to think that we were passing legislation that would have those consequences.

Paul Goggins (Labour, Wythenshawe and Sale East)

Following the enactment of this legislation, guidance will be issued, not least regarding sentences. However, I want to reassure the hon. Gentleman that this is not an attempt to dodge the more rigorous and stiffer penalties involved with cases of murder. If we know who did, and if we know that it is murder and can prove it, we would much prefer to do that. The measure is intended to address the current situation in which we cannot get them for anything because we do not have the powers to do so.

Dominic Grieve (Conservative, Beaconsfield)

I appreciate that that is the Government's intention, but is it not correct that if a man in a household were to murder his child and commit suicide afterwards, leaving clear evidence that he was the perpetrator of the murder—for example, a suicide note and traces of his DNA—the mother could be prosecuted under the clause if she was in the household at that time?

Paul Goggins (Labour, Wythenshawe and Sale East)

Two things arise from that. First, obviously a murder charge could not be brought if someone has taken their own life, but I repeat that it would always be our intention that the prosecution should go for a murder charge if that is possible. Secondly, the answer is yes. We are making it clear that people in a household have a duty to take reasonable steps to protect children and vulnerable adults in that household. I think that that is a welcome move, but it is one that we need to take carefully for the reasons that the hon. Member for Beaconsfield has mentioned, of which he will doubtless remind us later.

In conclusion, I appreciate hon. Members' concerns, and I do not question the motive of the hon. Member for Somerton and Frome in moving these amendments. If it were straightforward and could be justified, we would extend the offence to include serious harm, but we do not think that it can be justified in all circumstances, and it certainly is not straightforward.

Vera Baird (Labour, Redcar)

My hon. Friend has made the nub of his case, but will the Government remain open-minded about extending the remit of this offence if it works well procedurally as it is currently drafted, and convictions are obtained?

Paul Goggins (Labour, Wythenshawe and Sale East)

We should always review the effectiveness of legislation. If an offence works, that may encourage us to look further to see whether it could be applied in other situations. However, we cannot consider that now. We have to get to first base and begin prosecutions against the people who have committed such foul acts and, as the hon. Member for East Worthing and Shoreham (Tim Loughton) said on Second Reading, have literally got away with murder in so many cases in the past. Let us get that right, and we then will reflect on legislation and ascertain how else it might be applied. I am not in a position to make any long-term commitment today, and nor would I do so, as that would not be appropriate.

Death signals something that is of the greatest significance to any of us, and it is that that we wish to capture in clause 5. In that spirit, I ask the hon. Member for Somerton and Frome to withdraw the amendment.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Minister for the tone of his response, and for much of the content. I am still not entirely persuaded. He says that it is not a simple and straightforward matter, and everyone accepts that. It is a complex solution to a complex problem. That is why the Law Commission took such a long time and such a lot of evidence, and involved so many

people in its considerations on the appropriate way forward, and why it came out with its recommendations.

Some of the points put forward do not bear much scrutiny. First, the Minister talked about difficulties of definition. I addressed that in my opening remarks. I am perfectly content to hear the view expressed that serious harm is too nebulous a term, and I would be equally happy to have it defined as grievous bodily harm, as I suggested, under the Offences Against the Person Act 1861—I have managed to find the reference to the legislation, so I am happy to read it into the record. It is wrong to extrapolate from that and to say that courts are unable to identify what constitutes grievous bodily harm. They do so on a regular basis, and it is not a satisfactory argument to say that it is impossible to have a definition of what constitutes serious harm for such purposes.

The second issue was that of penalties. I understand that the penalty has been placed at a particular threshold to do two things: to ensure that the penalty for the offence is commensurate with the act that has been perpetrated, and to act as an incentive to ensure that people come forward with evidence if they have it rather than be charged with the alternative offence of murder. In the case of serious harm, I would be content if the Government were to say that 14 years is too much for that specific offence, but that they would have a lower tariff for such an offence. I understand the approach, but it is not a barrier to progress.

Thirdly, the idea that the amendment is not necessary because the victim is still alive and is therefore capable or more likely to be capable—surely more likely than a corpse—of identifying the perpetrator, was a weak point. That is true, but in such circumstances we do not need the offence that I propose. Where the victim can provide the evidence to enable somebody to be charged with a reasonable expectation of successful prosecution, we do not need the offence. We will need it when somebody is lying in a coma because they have been beaten around the head by one of two people, and nobody is going to be charged. That is the problem with not having such an offence. In such circumstances the victim cannot give the appropriate evidence and only two people know which of them did it—one of them did, but we do not know which one. Exactly the same thing applies in the case of death.

That leads to the fourth point. The Minister made much about death being a unique circumstance. Death is a unique circumstance in that someone has lost their life, and we should not lose sight of that. However, in terms of the intent of the perpetrator, death may be anything but unique. It may simply be a matter of extent or indeed chance whether a child either dies or is shaken to the point where they suffer brain damage, enter a vegetative state and become incapable of a meaningful life, owing to the offence committed. That may not be a great difference, but neither is the circumstance unique.

That is why we need to consider the matter again. I was somewhat reassured by the Minister's response to the intervention from the hon. and learned Member

for Redcar. The Government might be prepared to revisit the matter in the light of experience. However, we are still closing one lacuna in the law but failing to address another that is almost of equal significance and danger.

Geoffrey Clifton-Brown (Conservative, Cotswold)

The hon. Gentleman makes a cogent case. Is he aware that the maximum sentence that the courts can impose for grievous bodily harm is life imprisonment? The courts take an extremely serious view of such offences. In the circumstances that the hon. Gentleman describes, where a blow to the head or a shaking might result in death of serious injury, the difference in offence is relatively small, particularly if the person was unconscious and it could not be proved who had committed it. The clause ought to apply in those circumstances. The hon. Gentleman makes a cogent case.

David Heath (Liberal Democrat, Somerton and Frome)

That is my view. Notwithstanding all the difficulties in the court's interpretation and the details of statute, which I accept, something needs to be addressed that the Government are failing to address, albeit not through intent, because I accept that the problem is difficult. However, I hope that more, careful thought will be given to the issue. I perceive a danger, in that we are closing one loophole but leaving another one open. That loophole may have a profoundly unsatisfactory consequence. Somebody who, but for the grace of God, would have committed murder, might nevertheless be allowed to go free because there is not the mechanism to apply any of the other potential offences.

Dominic Grieve (Conservative, Beaconsfield)

I hope that the hon. Gentleman will excuse me for repeating what I said to the Minister, but the clause could be used not for that purpose at all. I do not say that that would be wrong, but the clause could be used when it is clear that the person being prosecuted had not committed the offence, but was nevertheless neglectful, in the terms of clause 5. I hope that the hon. Gentleman will forgive my emphasising the point to him, but that is something that we should bear in mind when considering the drafting on the offence in question and how far it should extend.

David Heath (Liberal Democrat, Somerton and Frome)

I agree with the hon. Gentleman to the extent that he is right that there is potential for abuse of the legislation.

Dominic Grieve (Conservative, Beaconsfield)

That is straightforward.

David Heath (Liberal Democrat, Somerton and Frome)

I accept that potential, given what the statute will say. We should be careful to avoid such outcomes in framing the legislation, if we can. However, I am not sure that I agree that, as a consequence, we must either not introduce an offence to deal with an acknowledged mischief or so limit the legislation as to fail to deal with another acknowledged mischief, which is almost identical, except for the consequence of the perpetrator's action.

Vera Baird (Labour, Redcar)

I agree with much of what the hon. Gentleman said. I suppose that he can take a little bit of comfort from the existence of the child neglect

offence in the Children and Young Persons Acts, criminalising assault or neglect, for which people are often charged in exactly the circumstances that the new provision is intended to cover: cases where one cannot tell who has done the action in question, because both are prosecuted on an either/or basis. The maximum sentence for that is only seven years, so it does not really meet the gravity of the cases to which he referred, but at least it is there in the meantime.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. and learned Lady is of course right. That provision exists, but I think that we have the opportunity to do better and I would like us to do so if we can find a formulation that is satisfactory. If the Minister is not prepared to accept the proposal today—and I understand why he might not be—it is still a matter about which we must maintain a dialogue. I know that others, who are much more expert on the subject than I am, are still in dialogue with the Department about it. My only request is that that continues. My suspicion is that we are hitting one goal and missing another; that might be the appropriate metaphor of the moment. I am confident that we will need to return to the matter at a later stage. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 8, in

clause 5, page 2, line 41, leave out from 'V' to end of line 1 on page 3.

I tabled this as a probing amendment in an endeavour to keep legal rules simple and I should make that clear to the Minister. Subsection (1) provides that:

''A person (''D'') is guilty of an offence if—

(a) a child or vulnerable adult (''V'') dies as a result of the unlawful act of a person who—

(i) was a member of the same household as V, and

(ii) had frequent contact with him,

(b) D was such a person at the time of that act,''

It goes on to provide for what I call the negligence requirements in respect of the action.

Why does the Bill use the term

''had frequent contact with him''?

The Bill provides that the offence is committed by someone who is within the same household. Therefore, I would assume that the prosecution must establish that the person was living as a member of the household. Of course, such a person could be away from time to time, but they would still be within the same household. If one examines paragraph (d)(i), (ii) and (iii), the defendant, the person who has been negligent in respect of the actions of another person, must be aware of the risk that is mentioned in paragraph (c), which provides that:

''there was a significant risk of serious physical harm being caused to V by the unlawful act of such a person''

If that proof must be established by the prosecution, why does it matter whether or not the person concerned had frequent contact with the victim? I suspect that the reason for including the requirement for frequent contact was to ensure that the provisions apply to someone who is a regular member of that

household and not to impose a draconian penalty for negligence on someone in circumstances where the co-accused—the other person who may have done the offence—did not have ''frequent contact''. Why does the provision matter, given that there is to be the protection of having to show that the defendant ought to have been aware of the risk?

The amendment is a probing one. Given my usual stand of trying to protect the rights of those who are being accused from oppressive legislation, I might not normally have tabled it. However, it raises an interesting question about the necessity of paragraph (a)(ii). I would be interested to hear from the Minister why it was thought right to include that provision. One of the consequences could be to allow considerable scope for legal argument, where someone will say, ''Well, it's true that I ought to have been aware of the risk and that he was a member of the household, but as he did not have frequent contact with him, I should be acquitted.''

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Gentleman moved his probing amendment in his usual cogent way, and I will try to respond in kind.

The justification for our approach is straightforward. Frequent contact and proximity to a child or vulnerable adult in their own home carries with it a responsibility on the part of the members of that household to take such steps as are reasonable and necessary to prevent the child or vulnerable adult from coming to harm if they are aware of a risk to them. Whatever their relationship to the child or vulnerable adult, they should not simply ignore their needs and any ill-treatment or neglect. However, the amendment would remove the need for there to be frequent contact between the victim and the members of the household.

The measure that we are proposing is a big step. Extending it to any of those in the household who are not themselves carers is a huge step, and we think that it is a step too far for it to catch within its ambit those who do not have frequent contact with the victim. Let us take as an example a lodger or student who takes rooms in a house and fails to intervene if he perceives a risk to someone in that house. He might not take his meals with the other members of the household or share their leisure pursuits or much of their living space. It would be wrong to place that person in the same position as someone who has regular—perhaps even hourly—contact with the victim.

We are trying to ensure that we focus on those who are most likely to be aware of the risk of harm to the victim and who are in a position to ensure that steps are taken to protect the victim from harm. Only those with frequent contact with the victim are likely to be in a position to observe the ill-treatment or neglect and any other evidence of the threat to the victim and then to take the reasonable steps that are necessary.

I hope that I have successfully explained our thinking behind the need for there to be that frequent contact for this offence to occur.

Sandra Gidley (Liberal Democrat, Romsey)

I am reminded of work that I have been doing with Action on Elder Abuse. Some of its research points up that the person who is the abuser is usually not the carer; the abuser is sometimes a member of the same household, but is frequently one stage removed from the caring process.

Another thought that came to mind is that it should be made clear that if anybody in any walk of life is aware that abuse may be being carried out, the onus is on that person not to keep quiet or to leave it to somebody else but to raise their doubts. As the clause is currently drafted, it gives a get-out so that people can say, ''Well, I wasn't really there enough to see that something was going on.'' Such people might be well placed to raise the alarm about abuse.

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Lady's intervention provides me with a good opportunity to say that although we focus in our discussions on fine points of law, we should always remind ourselves about moral responsibilities. In the situation that she outlines, we hope that people would act with a sense of moral responsibility about caring for people and that they would shout if they feel that things are not right and that people are not being properly looked after.

However, what we are trying to do in this clause is to set out a new offence, which deals with a very serious situation and carries a huge penalty. We need to do that with the greatest care. I am sure that hon. Members of all parties will approve of the care being taken. That is why we do not want to extend the offence too far in the way that we were invited to in the previous amendments by the hon. Member for Somerton and Frome. That is why in this discussion we are emphasising the need for frequent contact.

It is a new offence and carries a stiff penalty. We believe that frequent contact is an essential element.

Geoffrey Clifton-Brown (Conservative, Cotswold)

I should like to test the frequent contact a little further in this circumstance: as children grow older they often stay less frequently at home. What is the position of a child who has attained the age of 17 and is therefore potentially liable under the clause, is at home only infrequently but had been close to their siblings, one of whom might have been killed? Are they caught by this clause?

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Gentleman raises an interesting point. In the end, the court will have to decide whether the balance between the child's membership of the household and their proximity to the victim captures them within the offence. Clearly, the less someone is a member of the household the less they stand a chance of being caught within the offence. I speculate, but if someone was a member of the blood family but lived away and came home occasionally, one would not argue that they were a member of the household. They might be a member of the family, but they would not be a member of the household, so they would be less likely to be captured by the offence.

That is speculation on my part. If, having thought about the matter further, I conclude that I was wrong, I shall write to the hon. Gentleman. Yesterday, I was speculating on my own family, where my older children come back from time to time, to what extent

the offence might capture them; but if they were not members of the household they would be less likely to be caught within it.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for his response. He has persuaded me. I am going to quote back to him some of the things he said when we come to consider the next group of amendments in a completely opposite sense. I hope that he will then bear very much in mind what he had to say in respect of this amendment when I ask him about the next lot. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 32, in

clause 5, page 3, line 6, after 'ought', insert 'reasonably'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following:

Amendment No. 33, in

clause 5, page 3, line 11, after 'ought', insert 'reasonably'.

Government amendment No. 56.

Amendment No. 24, in

clause 5, page 3, line 15, at end insert—

'(2A) A person who is a victim of domestic violence should not be regarded as having caused or allowed a child or vulnerable adult to be injured or killed (as the case may be) unless there is clear evidence that this person actively contributed to the injury or killing of a child or a vulnerable adult.'.

Amendment No. 22, in

clause 5, page 4, line 3, at end add—

'(9) For the purposes of this section, a person who is a victim of domestic violence should not be regarded as having caused or allowed a child or vulnerable adult to be injured or killed (as the case may be) unless there is clear evidence that this person actively contributed to the injury or killing of a child or a vulnerable adult.'.

David Heath (Liberal Democrat, Somerton and Frome)

Under the amendment, subsection (1)(d) would read,

''(i) D was, or ought reasonably to have been, aware of the risk mentioned in paragraph (c)''.

That deals with an issue that was explored on Report in another place, where proposals originally from the Law Society sought to remove ''ought to have been'' altogether. It was considered by the Lords, and the proper point was made that to leave out the words ''ought to have been'' would enable a relatively simple defence to be promoted: that someone simply was not aware of what was going on in the household around them because they had chosen not to be aware; and it would be difficult to establish to the court's satisfaction that the person was aware, despite the fact that any reasonable person would have been.

I understand that argument. That is why I have not sought to press the amendment at this stage. However, the clause is widely drawn and might catch those who, owing to their abilities, proclivities, experience or circumstances, would not have been aware of what was likely to cause the risk of serious physical harm. One can imagine, for instance, that those with limited experience of such matters, might not have recognised that the behaviour of a person in the household was likely to have the consequence that it did. It is also possible to imagine those who might, for perfectly understandable reasons on their part, have

misinterpreted what was going on and could show to the court's satisfaction that they had done so, even though the court might hold that a person with reasonable faculties would have come to a different conclusion.

There are circumstances, crucial to this part of the Bill, in which people are so coerced or afraid because of the domestic violence that already pertains that they are not prepared to accept the consequences of the action of another person in the household, and there are those in which people have some disability or learning difficulty that precludes them from drawing a proper inference from the actions of others.

In all those circumstances, it is possible to say that people ought to have been aware of the risk. However, they were not, for the reasons that I have suggested. It would be of assistance to the courts in interpreting the clause to insert ''reasonably''. That would apply an additional test to the actions of the individual who was charged, and it would enable the courts to look into whether that person should have been aware of the risk—taking into account the context, the circumstances of that person and all his or her personal abilities. That was how, in her response to the amendments to leave out ''ought to have been'', Baroness Scotland suggested that the courts would interpret the statute. She, too, inserted ''reasonably''. I seek to follow the reasoning of the Minister but to ensure that the courts also have access to that reasoning, so that people are not wrongly accused in circumstances in which they really could not have come to the conclusion that the statute appears to be expecting them to come to.

Hilton Dawson (Labour, Lancaster and Wyre)

Is the hon. Gentleman not skirting over the huge distinction between putting a concept of reasonableness in the Bill and accepting that a court will look at defences of reasonableness after the fact? In trying to be reasonable, is he not doing something dangerous, and giving people a higher principle to aim for than the fact that they should always look to protect children and vulnerable people?

David Heath (Liberal Democrat, Somerton and Frome)

No, I do not accept that for a moment. We are told that the courts will interpret the provision as I have described in any case, but I am not convinced. Is the hon. Gentleman asking a court to consider an unreasonable circumstance in which someone is not able properly to appreciate the risk, and saying that such people should be liable for prosecution under this part of the Bill? I do not find that an acceptable element of a statute. Surely it could not be the case. He must be aware that many people are not able to take the view of a reasonable person—the mythical man on the Clapham omnibus—about what is happening around them. Is he really saying that such people should be in a position to intervene and should intervene, even though they will not have formulated the view that there is a risk? He is nodding.

Hilton Dawson (Labour, Lancaster and Wyre)

I thought that I had made clear my view that there is a distinction between a defence that someone might wish to offer about their behaviour or lack of behaviour in particular circumstances, and

making something explicit in a Bill. Pursuing the latter course would surely create a dangerous situation in which we almost gave someone a get-out, even though we expect any adult, frankly, to rise above themselves to protect children. That seems to me to be the reasonable thing to do.

David Heath (Liberal Democrat, Somerton and Frome)

We are talking not only about adults but about children in the context of the clause. We are not talking only about those who are of sound mind and have the mental capacity to draw proper inferences, who are covered by this area of the Bill, or about those who have the luxury of domestic circumstances in which they are free from fear and coercion. There is every expectation that the courts will deal fairly with people, and I do not believe it unreasonable to ask a court so to do.

Hilton Dawson (Labour, Lancaster and Wyre)

I know individuals with learning disabilities who would act like lions to protect children who were being abused, and such individuals would feel patronised by the defence that the hon. Gentleman proposes.

David Heath (Liberal Democrat, Somerton and Frome)

I know such individuals, too, but that is not to dispute the fact that others would not be in that position. [Interruption.] The hon. Gentleman says from a sedentary position that it is down to the individual—that is exactly the point. However, the way in which the clause is phrased does not give the courts that latitude. His suggestion that my proposal is profoundly dangerous does not hold water. The test of reasonableness pervades criminal justice and statute in this country. It is hard to accept for one moment that inserting a test of reasonableness would in any way undermine legislation, especially as my argument was adduced by a Minister in response to previous amendments to remove the words ''ought to have been''. I am simply quoting her words.

Dominic Grieve (Conservative, Beaconsfield)

Does the hon. Gentleman agree that the word ''reasonably'' may not be required? One might have, for instance, ''in all the circumstances''. The question is whether it is a subjective or objective test. Are the jurors to put themselves in the position of the person who had to make the judgment, or do they exercise their own independent view of the circumstances? That is the key.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is absolutely right. Those words would have been an alternative formulation. The proposal would simply allow the court to consider the specific circumstances of the person who is charged with the offence and whether it is reasonable for that person to have drawn the inference that it is assumed a reasonable man or woman would have drawn.

The proposition is not absurd. I am disappointed that the hon. Member for Lancaster and Wyre (Mr. Dawson) sees it in the terms that he expressed. I am trying to ensure that this law—a novel area of law with which we must be careful—does not act unfairly against those who are not in a position to draw the sort of inference that every member of the Committee and

99.9 per cent. of the pubic would draw. There may be that 0.1 per cent. of the public who are not in the position to draw that inference, and their circumstances should be taken into account by the court. That is sufficient to justify amendments Nos. 32 and 33.

When I respond to the debate, I will respond at greater length to Government amendment No. 56 after we have heard the Minister's reasons for wanting to strike out an eminently sensible precautionary approach from those in another place to deal with victims of domestic violence when they find themselves accused of the offence under discussion. It does not prevent the court from finding the person guilty of the offence; it simply suggests that the court shall have regard to that area, and that is self-evidently necessary. I would expect it from a court in any case, but it does no harm whatever to have it at the forefront of the judge and jury's consideration of the evidence. I am very disappointed that the Government feel the need to strike it out, and I will be even more disappointed if that finds favour with other members of the Committee whom I would expect to support its inclusion and who might argue for its inclusion were it not there already.

Dominic Grieve (Conservative, Beaconsfield)

I, too, shall wait with interest to hear what the Minister has to say. The point made by the hon. Member for Somerton and Frome has considerable force. I am left in a slight state of uncertainty as to what the present test is. The Minister may wish to clarify it, because—going slightly against the hon. Gentleman's argument—if the defendant was or ought to have been aware of the risk mentioned in paragraph (c), what latitude does that give to a jury to consider all circumstances? I may hear from the Minister that all circumstances including the age of the defendant may be taken into consideration. I expect that the jury will take it into consideration even if it is not expressly provided; however, the test is opaque.

If, for instance, the person concerned was blind, one might ask, ''Ought that person have been aware of the risk?'' In that instance, I assume that the test would not be objective in the sense of applying oneself to what the juror would consider the risk, as opposed to that person themselves. If that were not the case, a manifest and gross injustice might be committed. I have a feeling that that is not the intention, but it would be nice to have some clarification.

Vera Baird (Labour, Redcar)

I, too, am concerned about that area, but I wondered whether the amendment might not make matters worse. My take on how the provisions will work is that the jury will have to consider whether D, who may have a learning disability, be suffering domestic violence or be blind, ought to have been aware of the risk, and I am worried that the amendment would narrow that person's position. If one does not include the word ''reasonably'', and D unreasonably but genuinely fails to be aware of the risk, they will be not guilty. I do not know whether the hon. Gentleman is following my argument; it is not straightforward.

4.30 pm

David Heath (Liberal Democrat, Somerton and Frome)

I follow entirely what the hon. and learned Lady is saying. If she is right about the way in which the court might interpret the provisions, however, I fear that we shall leave open the defence that the Minister in another place suggested she wanted to close by rejecting the amendment to leave out the words ''ought to have been''.

Vera Baird (Labour, Redcar)

I am grateful for that intervention, but I was really concerned with what the hon. Gentleman is trying to do. We urgently need clarity about how the clause will be applied. He may want to be absolutely sure that all individual characteristics are taken into account, but his amendment is the wrong way of going about it. If we include the test of reasonableness, someone who, perhaps because of his inadequacies or disabilities, honestly but unreasonably fails to be aware of the risk, could end up being guilty—that is the danger. If we include the word ''reasonably'', he will be guilty, even though he honestly failed to be aware of the risk and truly did not know what was going on.

Although the introduction of the word ''reasonably'' does not help, there is a need for clarity, and it is imperative that the Minister make it clear that the jury will have to decide whether D—that individual, with all his pros and cons—ought to have been aware of the risk. That is a very subjective test, and the jury will not be making a moral judgment that takes no account of that individual's weaknesses. We need to be clear about that.

We also need reassuring that account will be taken of all the circumstances, including the frequency of visits, how the person who was primarily responsible for the death behaved towards the victim, and so on. We need to be reassured that not only the individual but the whole set-up in which the events occurred will be considered.

Government amendment No. 56 would leave out subsection (2). Often, when a child has been killed, domestic violence is likely to have been present in the family. Indeed, that is highly likely, because domestic violence against a woman frequently occurs alongside domestic violence against a child. I can therefore see why there is a drive to ensure that we point to the likelihood of domestic violence and deal with it as a separate issue. I believe that the Government have reservations about doing so, however, because it is possible for someone to be kept silent or to be prevented from protecting a child by many other means than domestic violence. For example, one could blackmail or financially coerce somebody into not protecting a child, and that would not necessarily be domestic violence.

I am sure that I have heard the Government argue that making specific mention of domestic violence in the Bill would put the defendant in an inequitable position if they had, in fact, been coerced in other ways into not protecting someone, because they would not be given the specialness of protection that a clause in a Bill would give. Nevertheless, domestic violence is so likely to be present in such cases that it is important to include it in the Bill.

Paul Goggins (Labour, Wythenshawe and Sale East)

Subsection (1)(d)(ii) states that a person will not be guilty of an offence unless he or she failed

''to take such steps as he could reasonably have been expected to take''

to protect the victim from the risk. That is integral to the offence. It was debated long and hard in the other place; we discussed it to an extent on Second Reading; and we are now engaged in debate on it in Committee. In all those discussions we are aware of the position of women who are the victims of domestic violence.

I regret that, as we all know, women are the victims in the vast majority of cases of domestic violence, although, as was pointed out on Second Reading, that is not always so. Sometimes a man is the victim. Such victims may be unable to do much to protect themselves, let alone others who may be at risk. The debate in the other place concluded with the insertion of a new subsection into the clause, which is now subsection (2).

I understand the reasoning behind the introduction of subsection (2) and the further amendments that we are now considering. I do not question the intentions of those here or in the other place who have advanced arguments in support of those changes. We all agree that victims of domestic violence need our help and protection. The Bill is all about that. What we are now discussing are risks that might undermine the intent and purpose of the clause altogether. That is why we feel unable to accept the amendments.

The practical effect of subsection (2), which Government amendment No. 56 removes, would be to undermine the reasonable steps test by implying a different test for the victims or potential victims of domestic violence. My hon. and learned Friend the Member for Redcar ran through some of the arguments on this. The subsection risks making the offence virtually unprosecutable in most classic ''Which of you did it?'' cases, because research suggests that there is a backdrop of domestic violence in many child cruelty cases.

Dominic Grieve (Conservative, Beaconsfield)

I simply cannot accept the argument that the subsection makes cases unprosecutable. All that it does is highlight one of the features that the judge will have to point out to the jury in summing up. The fact that domestic violence has occurred does not, under subsection (2), absolve the person concerned. It is simply a factor on which stress should be laid for the jury. I think that the Minister is going a little far in making the leap to say that the case would become unprosecutable.

Paul Goggins (Labour, Wythenshawe and Sale East)

I think that I used the words ''virtually unprosecutable''. I believe, with my noble Friend Baroness Scotland, that the subsection would undermine the effectiveness of the offence.

David Heath (Liberal Democrat, Somerton and Frome)

With great respect, that is not what Baroness Scotland argued. She said that the subsection was unnecessary because the court would already take the matter into account, and it involved the disbenefit of singling out for consideration a particular group. At no point did she suggest that it would affect the ability

of the prosecuting authorities to take action. Her main argument was that it was otiose and unhelpful in its direction.

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall come to those arguments in a moment. I just want to preface my remarks by saying that the correlation between the relevant type of case and the incidence of domestic violence could mean that the subsection would undermine the implementation of the new offence. There are other arguments, which Baroness Scotland made in the other place.

One of those arguments has also been made here: that the subsection also unfairly singles out defendants who are vulnerable because of domestic violence from among other vulnerable defendants. If particular regard is to be paid to those at risk from domestic violence, what regard should be paid to those who are very young, disabled, or frightened for some other reason? It seems unfair to single out one group of vulnerable people over and above others.

As my hon. and learned Friend the Member for Redcar pointed out on Second Reading, there are other ways of putting pressure on someone to stay quiet, to join in or to deny to the police that either party committed an offence. What about the pressures that could be brought to bear, for example, by withholding money? It is best that we leave it to the court to look at all the factors in the case and determine what pressures were exerted on those involved and not to single out certain circumstances as being more deserving of consideration than others.

No member of the Committee underestimates the difficulties that victims of domestic violence may face, a point made forcefully throughout our debates here and in the other place. Victims of such violence can often be afraid; they can be isolated and demoralised by their situation. We have always recognised that. That is why the reasonable steps provision forms such an important part of the offence.

In deciding what steps were reasonable in any individual case, the courts will take into account all the circumstances. That might include domestic violence or the defendant's youth, or any other factor that might make a person vulnerable or reduce the reasonable steps that they might have been expected to take.

I do not question the intention of the hon. Member for Somerton and Frome in tabling the amendments. There was an interesting exchange, which got quite lively at one point, about what ''reasonably'' might mean. We certainly do not want to suggest that there could be an objective test of reasonableness. We want a test that relates to the circumstances of the individual, which are then taken into account in assessing the steps that he could reasonably have taken.

Horrific as being a victim of domestic violence is, that does not absolve anyone from the responsibility to protect a child or vulnerable person who is at risk and depending on others for help. That might sound counter-intuitive and rather harsh and uncomfortable, but if we failed to do justice to the defendant and the

vulnerable person whose life has been lost, that would be even more uncomfortable. The hon. Gentleman's amendments say that victims of domestic violence are absolved from their responsibility to protect others, even their own child who is at risk of serious harm. Difficult as the argument is, that is unacceptable.

We must be sure that victims of domestic violence know where to go for help. The extra protection provided by the Bill should help to reassure them that they can feel confident in taking the steps that they need to take and will have our support.

The offence simply asks that members of the household do what they can be reasonably expected to do, and what is reasonable will reflect their own circumstances, including whether they have been victims of domestic violence. However, subsection (2) and the amendments might be interpreted to mean that members of the household can do less or nothing in some circumstances, which is not acceptable. Victims of violence need support, which we are intent on giving them, but they must speak out, and we and the courts will listen when they do.

I hope that the Committee will recognise that the reasonable steps test already affords victims of domestic violence and other vulnerable defendants the necessary protection within the offence. The amendments would distort that balance and leave the offence unfair and unworkable. In that spirit I invite the Committee to agree to the Government amendment removing subsection (2) and to reject the Opposition amendments.

David Heath (Liberal Democrat, Somerton and Frome)

I am a little disappointed by what the Minister has said. On the one hand, he places enormous stress on the test of reasonableness in the Bill. That is at the second stage of consideration—whether person D has taken reasonable steps—and he is absolutely right. That focuses on the steps that the individual could reasonably have undertaken, given his circumstances. However, that does not undermine my argument that there is a preliminary test: should they reasonably have known that there were any steps that they had to take in the first place? That judgment is also predicated on the individual circumstances of a defendant.

I listened carefully, as I always do, to the point made by the hon. and learned Member for Redcar, and I think that I understand it. However, I have persuaded myself that it is proper for the test of reasonableness to be applied by a court at the stage that I am suggesting, and that it does not extend a defence too widely, or restrict the circumstances in which a court could find that it was unreasonable for a person not to have known what was going on.

It is difficult to understand why the Government are completely confident that the test of reasonableness is the right objective test that has to be applied at one stage, but not at the preliminary stage on which the whole case rests. I still think that the court should be aware of the individual cases in both circumstances. Juries cannot just export from their own experiences what somebody should have known about the likely

consequences of someone else's actions. I am not persuaded, but I am not going to make further progress in this discussion.

In terms of the specific provision for victims of domestic violence, nothing in subsection (2) reduces the obligation on someone who is the victim of domestic violence to take appropriate, reasonable action in defence of a vulnerable child or an adult. Nothing in that subsection restricts the ability of a court to take into account the circumstances of other groups who are not victims of domestic violence in terms of the steps that they may reasonably have taken to prevent a death. Subsection (2) sends a clear signal to the court that, as we have already heard from the hon. and learned Member for Redcar and other Committee members, circumstances are often linked where there is domestic violence in a family or household and it is likely that a child and one of the parents may be the victims. It is proper for a court to take that into account and I do not think that the Minister disputes that. We should make that explicit, so that courts are in no doubt that they should be taking this factor into account, among many others, when deciding on the reasonableness, or otherwise, of the actions that a person has taken in defence of the eventual victim.

I am prepared to withdraw my amendment, but I am determined that we discuss the matter further. If the Minister is intent on moving amendment No. 56 to delete subsection (2), it will be necessary for some of us to express our views about it and say that he is misdirecting himself in this instance and it is wrong for the Government to undo what has been sensibly done by another place. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 56, in

clause 5, page 3, line 12, leave out subsection (2).—[Paul Goggins.]

Question put, That the amendment be made:—

The Committee divided: Ayes 8, Noes 6.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 69, in

clause 5, page 3, line 18, leave out

'If D was not' and insert 'Irrespective of whether or not D was'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following amendments: No. 5, in

clause 5, page 3, line 20, leave out '16' and insert '18'.

No. 6, in

clause 5, page 3, line 20, leave out '16' and insert '14'.

No. 9, in

clause 5, page 3, line 32, leave out from 'offence' to the end of line 36.

No. 70, in

clause 5, page 3, line 34, leave out 'ten' and insert 'thirteen'.

No. 71, in

schedule 7, page 38, line 3, at end insert—

'In section 50 of the Children and Young Persons Act 1933 (Age of criminal responsibility) as amended by the Children and Young Persons Act 1963 for the word ''ten'' substitute ''thirteen''.'.

Dominic Grieve (Conservative, Beaconsfield)

This is another part of the clause that causes me concern. I said at the outset that the clause attempts to do two things. On the one hand, it tries to address that particular mischief of circumstance where one of two people murdered a child but it is impossible to tell which one. As the Minister acknowledged, it could also have a wider impact in circumstances where it is possible to tell who committed the murder but we still wish to criminalise the other, because it creates an offence of negligence against those involved in the care of the child where another member of the household has killed them.

I was struck by subsection (4), because it makes a distinction between those who are the mother or father of the victim and those who are not. In the case of those who are not the mother or the father, but who are members of the household and who were either directly responsible for the death or ought to have been aware of the risk and failed to take the steps that

''could reasonably have been expected''—

and if

''the act occurred in circumstances of the kind that''

they

''foresaw or ought to have foreseen''—

there is a lower age limit of 16. If the person is the mother or father, there is no lower age limit whatever.

I find it difficult to imagine the justification for that distinction. Indeed, one thing that troubles me is that we are creating an offence of negligence that may criminalise some very young children indeed. It may be a regrettable fact but there are mothers who have given birth at the age of 12 or 13. There are, we now know, boys who are fathers at that age. I think that we must be careful.

I repeat that the offence does not mean that the offender probably murdered, but is going to ''get away with it''. It is an offence of negligence. I cannot think of an offence of negligence—especially negligence in failing to discharge a duty of care rather than of omitting acts towards the victim—couched in that way. I cannot, for obvious reasons, imagine a prosecution under the Health and Safety at Work, etc. Act 1974 brought against a 13-year-old or a 12-year-old. In the same way, I find it difficult to imagine how, in reality, a 13-year-old, a 14-year-old or a 15-year-old is going to fulfil the criteria in paragraph (d)(i) to (iii) of subsection (1). I accept that the Minister may argue that if they do not fulfil those criteria, a prosecution will not be brought or will fail. However, we must be reasonable and put some outer limits on the way in

which the law operates. This group of amendments gives us the opportunity to consider what those outer limits should be.

Amendment No. 69 would get rids of the distinction between the mother or father and the carer. I would be interested to hear the Minister's justification for the maintenance of that distinction.

Vera Baird (Labour, Redcar)

I can see a distinction between a member of the household who is under 16 who is not the parent and who is likely to be preoccupied with their own juvenile activities and schooling, and so ought not to have a duty of care, and somebody of the same age who is the parent of the child and so must have a duty of care.

Dominic Grieve (Conservative, Beaconsfield)

We hope that the natural instincts that parents have for their children will give them an extra duty of care. However, as the hon. and learned Lady knows, the reality in dysfunctional households is that there will be extremely young parents below the age of consent for sexual relations who have brought babies into the world and there will be a wider household that is responsible for care. There are many inadequacies involved, and I find that the distinction starts to get fairly fuzzy.

If I am working in any direction, it is of not removing the reference to the age of 16—the age of consent—and lumping everybody together, but putting a sensible bottom age limit on the offence. We should not prosecute children just because they happen to be parents. The interesting question is: what should the limit be? I assume that a household will contain adults. I seem to recollect—the Minister will correct me if I am wrong—that to leave a child in the care of another child under the age of 14 is already prohibited. Or at least, I recollect that it is generally held that people should not have babysitters under that age. I cannot remember exactly, or quote chapter and verse. I see heads shaking, but that age impinges on my consciousness. The Minister might like to go away and check it. Perhaps it is a guideline. Somebody may scribble a note to him and correct me. What is the age? Can we take that as a starting point?

The duty on the adults in the household may be other than that on the children. I simply put that point forward for discussion. However, I find it odd that, for carer defendants who are suspected of intimate involvement in an offence and are charged with negligence, there is a bottom age of 16, but defendants who happen to be the mother or father can be charged at any age above the age of criminal responsibility, which is now extremely low. The Committee must take that matter into account. I cannot get away from the view that the distinction is largely artificial.

Some very odd anomalies spring to mind. Some of the amendments relate to subsection (6), which states:

''For the purposes of this section an ''unlawful'' act is one that—

(a) constitutes an offence, or

(b) would constitute an offence but for being the act of—

(i) a person under the age of ten''.

Sitting suspended for a Division in the House.

On resuming—

Dominic Grieve (Conservative, Beaconsfield)

Before the Division, I was about to highlight what I perceive to be potential anomalies in how the legislation might bite. Let me provide an example—it may be far-fetched, but far-fetched examples are sometimes useful when considering the scope of legislation. Let us suppose that a 14-year-old mother lives with her parents and siblings in a dysfunctional household that has a record of violence. Let us suppose also that some of the children have behavioural difficulties, particularly her eight-year-old sibling, who has a propensity for violent behaviour and is a danger to her baby, who is a few months old. If the sibling were to kill the baby—which is very likely in those circumstances—the baby's mother would be guilty of a criminal offence under the clause.

That may be an extreme example, and the Minister may tell me that I am wrong, but I do not think that I have misread the way in which the clause works: that must be the impact of subsections (6)(a) and (b), although it seems a little far-fetched. I realise that there will always be extreme cases and a need to rely on the discretion of the prosecuting authority, but it is nevertheless incumbent on Parliament to try to draw reasonable boundaries. We have not yet succeeded in doing that; the age at which the negligence offence kicks in is too low, particularly in the case of a mother or father, and we should consider whether 16 is the right age generally. I do not see any grounds for making a distinction between offences.

I am also troubled by subsection (6) and the issue of who might cause the injuries. Subsection (6) provides that there can still be an offence of negligence when the likely perpetrator is a child under the age of 10 or someone who is insane. That seems to be an extraordinary state of affairs, although I can understand the reasoning behind that exception. This Committee, and Parliament, must be careful about how those boundaries are drawn. I look forward to the Minister's response with interest.

Hilton Dawson (Labour, Lancaster and Wyre)

I tabled amendments Nos. 70 and 71, and I support amendment No. 5.

I agree that there are some problems with the way in which the clause affects children, who may be criminalised or come within the remit of the criminal process as a result. I join the hon. Member for Beaconsfield in expressing concern about whether the concept of parental responsibility is strong enough to carry the age distinction of which he spoke. The Government are trying to make it carry between those children who could be prosecuted under this clause, and those who could not. It is a difficult issue. That line of reasoning must be balanced against that expressed by my hon. and learned Friend the Member for Redcar: there is a distinction between children who are parents and their siblings who are not. It may be extremely important to recognise that distinction.

Various ages of criminal responsibility are cited in the clause and the amendments, reflecting our inadequate law on criminal responsibility. Amendment No. 5 suggests that responsibility for the offence should be confined to adults—those aged over 18. That is an important principle, which I believe could be applied across the criminal justice system. It is a fundamentalist principle, perhaps, but it recognises that children are children are children—people under the age of 18 are children.

Amendment No. 70 aims to raise the age of criminal responsibility for those committing unlawful acts under the clause from 10 to 13.

David Heath (Liberal Democrat, Somerton and Frome)

I have interrupted the hon. Gentleman fairly early in his explanation of what he hopes to achieve by the amendment, because it does not seem to me that it does anything like what he is suggesting that it will do. The clause simply recognises the position of the law and identifies those offences that are unlawful acts for the purposes of the subsection (1). The amendment does not do anything to change the age of criminal responsibility.

Hilton Dawson (Labour, Lancaster and Wyre)

If the hon. Gentleman will give me a break, I will carry on with what I was saying. If he looks at amendment No. 71, which seeks to amend the Children and Young Persons Act 1933, itself amended by the Children and Young Persons Act 1963, by raising the age of criminal responsibility to 13, I hope that he will see what I am trying to do. I am prepared to be taken to task by those who say that this is an inadequate way to argue my position, but it is a strongly supported position, as I shall explain. I was aided enormously by the learned Clerk to this Committee, who went out of his way to assist me in making the points that I was trying to make in the amendments.

Dominic Grieve (Conservative, Beaconsfield)

I understand what the hon. Gentleman is trying to do, but I do not think that the amendments succeed in doing it. The mischief or otherwise of subsection (6)(b)(i), as I tried to explain, is that it provides that even if a five-year-old child had killed another child in the household, somebody might still be criminally responsible under the offence in subsection (5), notwithstanding the fact that it had been clearly established that the killer was a five-year-old child. The amendments that the hon. Gentleman has tabled would raise the age to 13, but would not alter the age of criminal responsibility under the Children and Young Persons Act. The point is that the age of criminal responsibility is neither here nor there for the offence of negligence by another person who should have been looking after the interests of the victim.

Hilton Dawson (Labour, Lancaster and Wyre)

I am grateful for that guidance. I hope that, when my hon. Friend the Minister hears the power and force of this principled argument, he will agree to take the proposal away and table suitable amendments that would achieve the end that we are, I hope, united in aiming for.

We have heard a lot about how well amendments to the Bill have been supported by various organisations. My amendment is supported by no less a body than the UN committee on the rights of the child, which in 2002 urged the Government to raise the minimum age of criminal responsibility. There is good reason for the Government to do that: approximately 2,500 children are currently in custody in our country. Since 1997, there have been around 26 suicides of children in custody. Of course, those children committed criminal offences, no doubt since the age of 10, but they were uniformly needy, abused, neglected and extremely unhappy. They plainly needed care, support and attention, which they did not receive. This scandalous situation, which is a dreadful blot on the life of this country, must be a huge concern to every member of the Committee and every Member of this House. I hope that every Member of Parliament wants to begin to address this issue.

There is undoubtedly huge concern about the offending behaviour of children, and I do not seek to mitigate that very serious concern. The Government are responding to that in a serious and coherent way, but only up to a point. They are also responding seriously and coherently to child deaths in custody. There is no doubt about the compassion shown by the Minister or the Home Secretary, or about the steps that they have taken to address the monumentally serious issues affecting the Prison Service. However, we need a more fundamental approach. We need to consider restricting access to custody for children, as well as restricting the offending behaviour and criminal careers of young people. We can do that by raising the age of criminal responsibility and by keeping young people out of the prison system and the criminal justice system as far as we possibly can.

My proposal is not radical. Indeed, it is less radical than the legislation enacted by a previous, excellent and reforming Labour Government under an enlightened Home Secretary. Under the Children and Young Persons Act 1969, the age of criminal responsibility was raised to 14. Regrettably, however, that part of the Act was never implemented. I propose today that the age of criminal responsibility should be raised to the age of 13, which is in line with the Government's provision under the Sexual Offences Act 2003. The Government have made very clear statements that children under the age of 13 cannot consent to sexual intercourse or any other sexual activity. That is a fundamental issue of child protection. Raising the age of criminal responsibility is similarly fundamental.

I am not suggesting that we should underestimate the seriousness of children's offending behaviour; rather, there are more effective ways of dealing with it than through the criminal justice system. Nor do I want to inhibit an effective response to that behaviour. My proposal aims to ensure that we work effectively with children and their families to address and amend such behaviour and to stop them being drawn in to a criminal justice system that can in effect make them criminals and part of that system for life.

The Children Act 1989 provides us with the means to deal with children in welfare proceedings through child-centred proceedings and in effective ways. That may well result in the removal of children from their homes and their placement in secure accommodation for the protection of the public, but it would not put them into custody and would ensure that they were dealt with in child-centred systems.

Geoffrey Clifton-Brown (Conservative, Cotswold)

Although the hon. Gentleman's sentiments may be wholly laudable, surely raising the criminal responsibility for children is way outside the scope of the Bill? We are dealing with a very narrow clause and the age of a certain restriction for offences of negligence under the Bill. His comments are way out of that scope.

Hilton Dawson (Labour, Lancaster and Wyre)

I simply do not agree. This is not only the domestic violence Bill, but the crime and victims Bill. There are no greater victims of the criminal justice system than young people who have committed suicide in prison. I am trying to stretch the point, of course, but that is a valid thing for a Member of Parliament to do. I cannot believe that anyone would doubt the seriousness of the issue that I am bringing to the Committee's attention.

Whatever we decide today, the Government will have to face the issue in the short term. A Government who are committed to the concept that every child matters and to transforming the prospects of children in our society will need to face it. A Government who are setting up the office of a children's commissioner must be aware that the matter will be one of the commissioner's top three priorities on assuming office. Before long, we will see a rise in the age of criminal responsibility. I would like to see it go beyond 13, but it certainly has to go a long way beyond 10. That would be to the benefit of all children affected by the Bill and all children generally.

David Heath (Liberal Democrat, Somerton and Frome)

This is an interesting set of amendments. I have sympathy with the point made by the hon. Member for Beaconsfield about amendment No. 69. Notwithstanding the intervention from the hon. and learned Member for Redcar, parents who are under 16 may have different responsibilities from the run-of-the-mill under-16-year-old, but, nevertheless, they are still children. The fact that they have parented a child does not mean that they necessarily think or behave as an adult does, or do any of the things that one would expect of a person who is older and perhaps has a better developed sense of responsibility—although that does not apply to all older people. It is not entirely appropriate to expect a wholly different response to a given set of circumstances simply because that young person is the father or mother of a child in the case. One would hope that that would be so, but one could not expect it to be so in legal terms.

I accept the argument that we should not expect a level of behaviour from children that is beyond reasonable expectation. That goes back to our argument about what is reasonable and what can

reasonably be expected. Children are in a different category. The fact that they happen to be the parents of the child in question does not alter the mental capacity of the young person. Therefore I see some merit in amendment No. 69.

Amendments Nos. 5 and 6 are obviously probing amendments because they tend in opposite directions, which usually suggests an intention to discover what the Minister thinks. However, were I to be given the choice, I think that I should set the age exactly where the Government have done.

I was upbraided royally by the hon. Member for Lancaster and Wyre in debate on a previous group of amendments for daring to suggest that someone who was mentally or physically incapacitated and could not reasonably be expected to know that harm was being caused might be treated differently by a court; I was told that that would undermine the whole point of the clause. I am therefore surprised to learn that he thinks perfectly sensible and reasonable 17-year-olds should be exempted from the effects of the clause.

I cannot reconcile those two views. It is difficult, having experienced the degree of passion that was directed at what I thought was a perfectly sensible suggestion, to find it argued with equal passion that a 17-year-old should have no responsibility at all for preventing the death of a child in a household of which they are a member. What the hon. Gentleman said previously is correct: every single person—and I include 17-year-olds—should have regard to the care of vulnerable children in their sphere of influence, and should take whatever steps are appropriate for their protection.

Hilton Dawson (Labour, Lancaster and Wyre)

I do not want to extend the point and take up more of the Committee's time, but I hope that the hon. Gentleman would accept that in trying to keep children from criminal responsibility I did not intend that the average 17-year-old should have no personal responsibility for dealing with such matters. I simply think that children should be treated differently from adults.

David Heath (Liberal Democrat, Somerton and Frome)

I think that people who are incapable of coming to a reasonable view about the harm that might be done to a victim should be treated differently, too. We shall now have to accept that we agree; or perhaps we do not. It does not really matter.

The hon. Gentleman put forward, in speaking to amendments No. 70 and 71, a perfectly proper argument for a change in the age of criminal responsibility. However, I cannot for the life of me see what that has to do with the Bill. I had hoped that he wanted to amend clause 5(6). It is now transparently obvious that that is not his intention. He is simply using that as an entry point for making a speech about something that we have debated at length in proceedings on other Bills.

A great deal of time was spent in considering the age of criminal responsibility in deliberations on the Criminal Justice Act 2003. I do not disagree with the premise that the age of criminal responsibility in this country is wrong, but I do not believe that the hon. Gentleman is using the right vehicle to extend the

argument. In particular, I do not believe that amendment No. 70 serves any useful purpose in the context of the Bill.

As the hon. Member for Beaconsfield said, all that the subsection does is define an unlawful act for which a person of the relevant age can be held criminally responsible if they have failed to take reasonable steps to prevent it. Changing the age from 10 to 13 in the definition of an unlawful act makes no difference to the consequence for a person charged under the proposed new offence.

I suspect that the Minister will reject all the amendments and continue from exactly the present position. I think that there are some arguments for doing that. It will be interesting to hear them.

Paul Goggins (Labour, Wythenshawe and Sale East)

On that optimistic note, I welcome the fact that the amendments are before the Committee. They give us the opportunity to have a sensible discussion about the age at which the offence should begin, and to look at what increased responsibilities there might be for parents—even parents aged under 16.

The offence begins at the age of 16, and we believe that that is correct for the same reason that the Law Commission gave, which is that current child cruelty legislation begins to hold a person responsible for a child in their care once they are 16. There is considerable value in making sure that there is consistency with the Children and Young Persons Act 1933. The NSPCC, which contributed much to the Law Commission's thinking in this area, also agreed that 16 is the right threshold.

Carers' legislation also allows a person to be the carer of a vulnerable adult at the age of 16. It would not be compatible with that to raise the threshold for the new offence to 18. We appreciate that our offence goes wider than carers and covers all household members aged 16 or over, but it is justified and reasonable to expect those who have reached the age of 16 to take some responsibility when a child or a vulnerable adult in the household that they belong to is at significant risk of serious harm. After all, that is the age at which people can leave school, marry, and do many other things. I must stress that the steps people are expected to take will only be those that are reasonable for them.

Only those aged 16 or over may be guilty of the offence, unless they are the mother or father of the victim. A child under the age of 16 will not be considered to have a duty to prevent their parents from harming a sibling or other member of the household. We think that that is a reasonable and necessary safeguard. To lower the age of responsibility to 14 years for all members of the household would be a step too far; 14-year olds in this position will have limited opportunity and autonomy to take reasonable steps to seek protection.

Amendment No. 69 takes us to a group of people and a range of situations that are small in number, but the principle involved is very important. It would remove the protection of the new offence from children

whose parents are under 16, but we think that such parents should take reasonable steps to protect their child.

To refer to an interesting exchange during the debate, I agree with my hon. and learned Friend the Member for Redcar that there is a distinction between under-16s who are not parents and under-16s who are parents. It is right that a greater duty of care and responsibility towards a child should fall to the parents, whatever age they happen to be. Society recognises that.

Dominic Grieve (Conservative, Beaconsfield)

It seems that the Minister's argument is internally contradictory. I think that he is right that 16 should be the start of the age of criminal responsibility under clause 5; that is approximately appropriate. He said that a child under 16 would be unable to protect a sibling from its parent's activity. Why should a 14-year-old mother with a three-month-old baby who is living in a household in which whoever was the father is probably not present be in any better position to protect her child against, for instance, the activities of her stepfather? There is a lack of logic, and that worries me. I do not see the distinction between the child who happens to be the parent and the child who happens to be the carer.

Paul Goggins (Labour, Wythenshawe and Sale East)

We are dealing with difficult scenarios, but the simple fact is that the relationship is different; the responsibilities of a brother or sister of somebody are different from those of the parent. Whether or not they are under or over 16, the fact that they are a parent carries some additional responsibility.

We return, as we have a number of times, to the point that the offence only requires people to do what is reasonable in the circumstances. The hon. Member for Beaconsfield gave what he described as an extreme example and the hon. Member for Somerton and Frome built on it. All that will be expected will be what is reasonable in the circumstances.

The age and maturity of the defendant will be among the factors taken into account by the court when it decides what steps it might have been reasonable for him or her to take to protect the victim from harm. Obviously, if the age of the parent is 14, that will be considered. However, we do not take away from people the responsibilities of a parent.

Dominic Grieve (Conservative, Beaconsfield)

It is not a question of taking away responsibility. One hopes that a 13-year old who is the father or mother of a child will have some responsibility towards it. One hopes that a 15-year-old who is the sibling of another child will take some responsibility for it too. It is common for siblings to care for others in an extended family unit. However, having responsibility and being criminally liable under clause 5 are not the same thing. What is the justification for the distinction in criminalisation in clause 5? If the Minister is right to say that a 14-year-old parent has a responsibility that should be visited with criminal sanction if it is not properly exercised, what about the 14-year-old sibling who allows the

stepfather, whom they know to be predatory and violent, to kill their sister or brother? I do not see the logic, and I do not think that it is right.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am listening carefully to the hon. Gentleman's argument. The point is that being a parent carries responsibilities. Whatever the age of the parent, those responsibilities cannot be removed. In the context of this offence, of course consideration will be given to the maturity, age and circumstances of the individual. However, we cannot wipe out parental responsibility because somebody happens to be under the age of 16. The more I argue the point, and the more deeply I think about it, the more I am convinced that I am right, even though the hon. Gentleman clearly does not agree. We shall return to the matter in due course. On this, as on other things, I shall reflect and read carefully the report of our exchanges.

Hilton Dawson (Labour, Lancaster and Wyre)

I am trying to think of another context in which parental responsibility, that crucial concept, implies a criminal responsibility, and I cannot. The hon. Member for Beaconsfield is on to a serious point. Of course, there is a civil responsibility, but does it necessarily mean that children who are parents should be criminalised?

Paul Goggins (Labour, Wythenshawe and Sale East)

My hon. Friend might have been wide of the mark on some of the points that he made earlier—I shall come to those shortly—but he is not wide of the mark in raising that issue and joining it with other points that have been made. I undertake to think a little more about it. I stand by my comment that everybody who is a parent has responsibilities, but my hon. Friend has asked how that should be applied to criminal matters. Rather than say something speculative, I shall reflect on it and will find another opportunity to outline my thinking.

Amendment No. 9 would remove an important element of the offence. I am glad that we have had the chance to debate it. We would not want the presence in a household of one person who lacked criminal responsibility to mean that the other members of that household could not be prosecuted. If the victim died as a result of the action of a person lacking criminal responsibility—somebody aged eight, for example—that would not absolve the person who was aware of the risk and did not take reasonable steps to prevent the harm. If the amendment were accepted, other members of the household would escape prosecution, even though they might be culpable.

Whether my hon. Friend the Member for Lancaster and Wyre is wide of the mark or stretching a point, he never misses an opportunity to raise the issues set out in his amendments. We invariably end up disagreeing, although—I hope—in an amicable spirit. He asked us to consider whether the age of criminal responsibility should be set at 10 or at 13. He always proposes that it be set at 13. As he knows, there is considerable evidence that children start offending much younger even than 10. I quote to him last year's youth lifestyle survey, in which one in eight offenders said that they started their criminal behaviour at the age of seven or

younger. Offending behaviour often accelerates between the ages of 11 and 13. In our judgment, most young people of that age are mature enough to know the difference between right and wrong.

It is also crucial to set the age of criminal responsibility at 10 because it means that we can intervene at an earlier stage than would otherwise be the case. My hon. Friend was generous enough to note how effectively the Government are intervening on youth justice. We are keen to divert young children away from the formal criminal justice process. We have developed a system of reprimands and final warnings that does precisely that. The youth offending teams at local level now work closely and collaboratively with us to make sure that our interventions with young offenders are effective.

So, we try to divert young children from the courts and from the criminal justice system and, of course, we try to divert them from crime. That is not an argument for setting the age of criminal responsibility at anything other than 10. In the usual friendly spirit, I ask my hon. Friend not to press his amendments and to ask other hon. Members to do likewise.

Dominic Grieve (Conservative, Beaconsfield)

This has been a fascinating debate. The Minister has satisfied me on a number of points. I think that 16 makes sense as a normal start age. I still raise the question, and I would be interested in a reply if the Minister can find it—

Paul Goggins (Labour, Wythenshawe and Sale East)

We have consulted a little and will need to consult more on that question. I will write to the hon. Gentleman and to other hon. Members.

Dominic Grieve (Conservative, Beaconsfield)

In case that appears cryptic in the Official Report, let me say that we are discussing the age at which it is permissible to leave a child to look after other children. I thought that that age was 14. If I am wrong about that, it will be interesting. If that age is 14, it is rather different from the age that we will impose here, which is 16.

Paul Goggins (Labour, Wythenshawe and Sale East)

We now have the additional help of my right hon. and learned Friend the Solicitor-General, who gives an authoritative view on the matter. As we have consulted, some slightly different views have been expressed. She is, I am sure, right, but we want to check.

Dominic Grieve (Conservative, Beaconsfield)

I am reassured that the Solicitor-General takes the same view as I did without any reliance on authority. Perhaps the Minister should think about the implications that flow from that. We will have the bizarre situation of a rule that a 14 or 15-year-old may be left in charge of children and, one would assume, have a degree of responsibility, yet they have not reached the age of criminal responsibility under clause 5(4). That may an anomaly that we can live with, but, if it is correct, it is an interesting curiosity. I think that the Solicitor-General is right, because it was also my recollection that the relevant age is 14.

I return to the question about the mother or father having a different age of responsibility. Indeed, the age of responsibility is, in that case, undefined. I appreciate

the Minister's point that one would expect the mother or father of a child to take a particular care for them irrespective of their age, but I think that we must be realistic about what goes on in households where there are very young parents. I find it a slightly artificial distinction. We must bear in mind the facts. We are not talking about a 14-year-old murdering their child. If there were evidence of that, the 14-year-old would be prosecuted for murder. We are talking about Parliament creating a specific offence that relies on negligence as its foundation, although it is, admittedly, intended to get round certain problems with convicting people. I find that distinction unrealistic, particularly given that we may be talking about the ability of a 14-year-old to take effective steps when someone else in the household may be causing harm to their child. I hope that the Minister will go away and consider the issue.

The final point on which we touched was that a person could commit an offence even if they were under the age of 10 or entitled to rely on the defence of insanity. I appreciate the Minister's position, which is probably correct, but we must be realistic—certainly in the case of a defence of insanity. There are psychotic adults living in many households, and I have several in my constituency. They often receive pretty paltry care from the national health service and regularly go in

and out of hospital. Such people are potentially a threat to members of their families. I realise that defences are available under subsection (1)(d), but the Committee should bear in mind the possible consequences of saying that other members of the household could be criminalised for the acts of someone who is insane. I suspect that that we shall end up with some prosecutions and some interesting defences, and I hope that the Act will work.

As I said to the Minister at the outset, the clause was originally intended to meet a very precise set of facts. It is fascinating, although perhaps inevitable, that we have ended up with a negligence offence of potentially very wide import. Indeed, I wonder whether that was the original intention in drafting the legislation, which is much wider than I would have expected. I can see, however, that an inexorable logic may have lead to the offence being drafted in its present form. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5, as amended, ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Heppell.]

Adjourned accordingly at two minutes to Six o'clock till Thursday 24 June at ten minutes past Nine o'clock.